Property Rights for Advocates of Thoughts We Hate

| by The Volokh Conspiracy

By Ilya Somin

Justice Louis Brandeis famously wrote that freedom of speech requires “not free thought for those who agree with us but freedom for the thought that we hate.” The same point applies to property rights. A free society must protect the property rights of those who espouse unpopular views — even if their unpopularity is well-deserved. This problem is presented by a recent incident where Washington, DC police apparently refused to protect the property rights of Muslim traditionalists who are trying to prevent women from worshiping next to men in their mosque:

The D.C. police department will no longer intervene in an ongoing protest by Islamic women over their place in area mosques....

A group of Muslim women has provoked confrontations in mosques in and around the capital for months by claiming the right to worship next to men. The gestures have led to angry arguments between the women and conservative men among the Muslim worshipers.

Internal e-mails obtained by The Examiner show that the D.C. police department has now decided that the men are on their own.

“We are not to get involved,” Inspector Matthew Klein wrote in a May 24 e-mail. “Important that our officers not escort women out of there...”

D.C.‘s reversal is a victory for a small group of reform-minded Muslims in the capital region who say that their faith has to shake off its backward view of women.

Told of the department’s about-face, protest organizer Fatima Thompson let out a sustained whoop.

“This is such a win,” she said. “We’re supposed to be one community. Yet the moment we walk in, we’re separated one from the other....”

But the department’s climb-down raised the hackles of Ilya Shapiro, a legal scholar at the libertarian Cato Institute.

“The religious angle is beside the point. This isn’t a lunch counter or a restaurant or a hotel,” he said. “Basically this is a private institution, and that’s what this turns on — private property rights. If you don’t want a trespasser on your lawn ... you do rely on the police, ultimately, to eject people you don’t want.” 

As a libertarian and an atheist, I have zero sympathy for those Muslim traditionalists who want to relegate women to second class status. Nonetheless, I have to agree with my fellow Ilya here [no relation]. Government must protect the property rights of all its people, even those with abhorrent views. If these Muslim males are indeed the owners of the mosque, they have a right to exclude those who want to use the mosque in ways they disapprove of.

Muslim traditionalists are far from the only religious group with questionable views on women’s rights and other issues. Orthodox Jewish synagogues, for example, also require women to sit apart from men during worship. Some religious institutions exclude people involved in interfaith marriages; others exclude worshipers who are openly gay. The list can easily be extended. If we allow government to pick and choose which people’s property rights to protect based on their principles, the practical result will be protection for only those groups whose ideas conform to majority preferences or those of the political elite.

Private property gives minorities with unpopular views, lifestyles, or identities, a secure space in which they are protected from the hostility of the majority. Such groups included black civil rights advocates in the Jim Crow era, and gays in areas with widespread homophobia. If they cannot exclude those who disagree with their views from their property, they cannot form organizations that advocate and exemplify their principles. Even if, like me, you have little sympathy for this particular Muslim group, you should keep in mind that selective enforcement of property rights is likely to bite people you sympathize with more.

A possible counterargument is that these women could be analogized to black civil rights activists who sat in at segregated lunch counters back in the early 1960s. But as co-blogger David Bernstein points out, Jim Crow-era southern blacks were victims of “the equivalent of a white supremacist cartel”: a massive system of public and private violence that comprehensively excluded them from a wide range of opportunities (even those that might have been offered by owners willing to accept them). They weren’t merely excluded from a few locations owned by people with idiosyncratic views. In such a context, a decision to promote one’s cause by violating the property rights of racists is at least understandable.

By contrast, Muslim women in modern America have numerous options. They are perfectly free to join more liberal mosques that treat women equally or to establish new mosques of their own. They are also free to join a different, more egalitarian, religion or to become atheists or agnostics. In most if not all of these endeavors, majority public opinion would be on their side and various sympathetic individuals and civil society organizations would likely try to help them. Muslim women in Saudi Arabia may indeed be in a position analogous to that of blacks in the Jim Crow South. Not so with Muslim women in Washington, DC.

If we truly support freedom of speech for “the thought we hate,” we must also support property rights for the advocates of those thoughts. That’s why I have previously defended the property rights of communists like Bill Ayers and eminent domain abusers such as the Pfizer Corporation. And that’s why the DC Police probably made the wrong call here.

UPDATE: I said that the Police only “probably” made the wrong call because it’s possible that there’s some dispute over who actually owns this mosque. If the male traditionalists are not the sole owners, then they may not have the right to exclude these women after all. If that’s the case, however, it’s not clear why the Police supported their claims until recently.

From Volokh Conspiracy.