“Do two walk together unless they have agreed to do so?” – Amos 3:3
There are a couple of stories to report on today in regards to contract freedom, or the lack thereof in the political mind of the American nation. Before we dive in, remember that a free market agreement between two parties to exchange goods and services (“barter, buy, sell”) requires the acquiescence of both parties. If it is not the case that both parties agree, then the exchange is not free. One of the parties (or perhaps even both) are enslaved. (This is in no small part what was so offensive about the “individual mandate” of Obamacare – the citizen was enslaved by the requirement to buy a product that he would otherwise not purchase.)
Equal Protection … Just Not Equal Freedom
Breitbart is reporting that the now famous New Mexico photographer who refused to photograph a lesbian wedding has lost the latest round of appeals. The backdrop is this: in 2006 the photographer (Elane Huguenin) refused to provide services for a same-sex ceremony. The offended party sued and won, and has now won another appeal.
Apparently the court was pressed as to whether the “protection from discrimination” applied broadly with a hypothetical question about a black photographer asked to photograph a Ku Klux Klan rally. The court responded with “The Ku Klux Klan is not a protected class. Sexual orientation, however, is protected.”
Got that? Now, I won’t quibble with the court over the words and application of the law – I’ll assume the judge has it right. In what world though do “all men are created equal” and “equal protection under the law” and “freedom” combine to give us this result?
Equal Work Means Equal Pay … Just Not Equal Freedom
Also on the equal freedom front is the latest “equal pay” bill that the Senate tried to pass. The bill failed due to the Senate’s cloture provisions and a party-line filibuster by Republicans. It’s great election year politics by the Democrats, who have just put a bill to the floor banning the kicking of puppies and forced Republicans to vote against it because of a provision that doubled all marginal tax rates … later to complain that Republicans like kicking puppies.
This particular form of the bill would have given female employees the right to ascertain the salaries of all male employees with similar job titles and descriptions. If she didn’t like these salary disparities (i.e., if they were not in her favor) she could sue. Before I comment, let’s consider the parable of the workers in the vineyard from Matthew 20:1-16.
“For the kingdom of heaven is like a landowner who went out early in the morning to hire men to work in his vineyard. 2 He agreed to pay them a denarius for the day and sent them into his vineyard. 3 “About the third hour he went out and saw others standing in the marketplace doing nothing. 4 He told them, ‘You also go and work in my vineyard, and I will pay you whatever is right.’ 5 So they went. “He went out again about the sixth hour and the ninth hour and did the same thing. 6 About the eleventh hour he went out and found still others standing around. He asked them, ‘Why have you been standing here all day long doing nothing?’ 7 “‘Because no one has hired us,’ they answered. “He said to them, ‘You also go and work in my vineyard.’ 8 “When evening came, the owner of the vineyard said to his foreman, ‘Call the workers and pay them their wages, beginning with the last ones hired and going on to the first.’ 9 “The workers who were hired about the eleventh hour came and each received a denarius. 10 So when those came who were hired first, they expected to receive more. But each one of them also received a denarius. 11 When they received it, they began to grumble against the landowner. 12 ‘These men who were hired last worked only one hour,’ they said, ‘and you have made them equal to us who have borne the burden of the work and the heat of the day.’ 13 “But he answered one of them, ‘Friend, I am not being unfair to you. Didn’t you agree to work for a denarius? 14 Take your pay and go. I want to give the man who was hired last the same as I gave you. 15 Don’t I have the right to do what I want with my own money? Or are you envious because I am generous?’ 16 “So the last will be first, and the first will be last.”
Got that? The land owner struck separate contracts with different workers – contracts that decidedly did not include “equal work for equal pay” – the more productive workers (those who started early) were upset by this, but the land owner responded with simple contract law. “Didn’t you agree to work for [this price]?” Freedom. The two sides freely agreed to exchange one denarius for a days labor in the fields. The land owner was exchanging his property (denarius) and the workers were exchanging their lives, at least a day of them. Each party was free to enter the contract, each party brought something that belonged to them to the bargaining table, and each party lived up to their end of the bargain.
In a government “of, by, and for” the people, the government is the people. By what right do you or I insert ourselves into the free contract decisions of two others? By what right do we say to the land owner above “you should pay the first workers more because they worked harder”? Even if we have a legitimate point, by what right do we inject our own moral judgments into the process?
Even if we did we then hit a significant logistical problem. Somebody (i.e., the employer) has to make a determination of how much each person should be paid. How do we determine if the offended female is in fact more productive than the male counterpart? How do we do that? It’s not always easy for employers to do – but they have several orders of magnitude easier time at it than a judge or bureaucrat – or another employee who may well over-value their own relative contributions.
(Side note: it is also widely known that car salesman typically charge blacks and women more for the same cars. That is, they strike a deal with these groups to provide “equal pay” [the "employer's" side of the bargain] for “more work” [money brought in exchange] than is required from their white, male counterparts. No word yet on whether this bill would have addressed this contract inequity in the free market.)
Convenient Talking Points for a Principle They Don’t Hold …
The mantra of “equal work for equal pay” is apparently a “protected class” issue just like New Mexico photography. What if a male employee is paid less for doing equal work than a female? Any chance he can sue for extra remuneration? Or, and I’m just taking a blithe hypothetical here, what if a younger union employee does more work but gets paid less than someone with seniority? Do the youth have rights under this new, failed, non-existent bill? Equal protection under the law indeed …
What if, and again this is just a crazy hypothetical, what if the female was actually named Megan Sampson and she was the 2010 “First Year Outstanding Teacher” in … oh, let’s just pick a random state … Wisconsin? What if the “first in first out” rules of Union protection forced our completely hypothetical and totally made-up “teacher” out of a job because, while she was in theory one of the best (most productive) teachers in the state, she did not have seniority? In this scenario Megan would have to take a 100% pay cut to protect less productive but more senior union workers (many of whom are surely males) … “equal work means equal pay” indeed …
It’s All Good …
In the end, stories like these are useful. They highlight the hypocrisy of progressive policies, the inequity of their application, and the ultimate failure of nanny-state “inject ourselves into every private agreement” governance.
Freedom has to mean freedom for all, not just the protected classes. And freedom has to mean freedom in all, including contract negotiations and agreements.