In 2000, Jonathan Rauch, who is an openly gay advocate, defined hidden law as "the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts."
As National Review's Jonah Goldberg said:
"Basically, hidden law is the unwritten legal and ethical code of civil society. Abortion, assisted suicide, and numerous other hot-button issues were once settled by people doing right as they saw it without seeking permission from the government."Some examples of unwritten laws may include:
- Being kind to gay people even though your religion frowns on gay life
- Not having an abortion based on the belief that it's immoral
- Not supporting assisted suicides because it is considered morally wrong
- A kid can have a lemonade stand even though it is technically illegal to open a business without a license.
- It's okay to eat high fat foods even though they are technically bad for you
- It's okay to eat junk food even though it is technically bad for you
- You do not have to do business to all people; i.e. you don't even have to answer your phone if you work out of your home and specialize in some service, such as baking wedding cakes, siding houses, fixing roofs, etc.
Yet dragging unwritten law into politics is a bad idea, as Rauch explains:
“Hidden law is exceptionally resilient until it is dragged into politics and pummeled by legalistic reformers.”Goldberg said:
"That crowd believes all good things must be protected by law and all bad things must be outlawed."Goldberg, who is a conservative who supports gay marriage, added:
"As society has grown more diverse (a good thing) and social trust has eroded (a bad thing), the authority of hidden law has atrophied. Once it was understood that a kid’s unlicensed lemonade stand, while technically 'illegal,' was just fine. Now kids are increasingly asked, “Do you have a permit for this?”
Gay activists won the battle for hidden law a long time ago. If they recognized that, the sane response would be, 'You don’t want my business because I’m gay? Go to hell,' followed by a vicious review on Yelp. The baker would pay a steep price for a dumb decision, and we’d all be spared a lot of stupid talk about yellow stars.Say I own a roofing business, and I don't want to fix a roof when the weather is less than thirty degrees. The phone rings and I say, "I'm sorry, but I'm not taking work right now." The lady on the other end says, "I'm sorry, but you have to take my business, it's the law."
It used to be that the unwritten law was that I don't have to take your business, and then you'd move on and find someone who would. Now, at least in Arizona, you can't refuse to make a cake for someone even if that someone lives a life you do not religiously agree with, a right that is Constitutionally protected.
Opponents of Arizona's law that was not signed into law this past week put a good spin on the law, saying it would be similar to Jim Crow laws, whereby store owners would not serve gay people. Ironically, there was not one mention of gay people in the law. This was completely an erroneous claim.
But the claim went so far as to encourage the NFL to bully Arizona Governor Jan Brewer by threatening to pull the Super Bowl if she didn't veto the bill, which proposed to make law in Arizona what was made legal by Bill Clinton in the 1990s.
The law, therefore, was vetoed by Brewer because she couldn't risk hurting the economy of Arizona. She was afraid she would be seen as a gay basher if she signed the bill. All of this because a few people who were ignorant of what the bill truly stood for tipped the public relations scale in their favor by fooling the NFL and the public.
Quite frankly, I don't think it was a perfect bill anyway. If I were Brewer I probably would have vetoed it on principle alone. I don't think we need more laws, what we need is better education. It covered things that were already covered under unwritten law. On the other hand, I wouldn't have vetoed it based on threats that were based on ignorance and completely unfounded.
Like Goldberg, I believe gay people should have a right to marry if they want. It's a free country, after all. It's time we, as Americans, start educating ourselves before we make decisions and form opinions. It's time we stop forming opinions based on fallacy, and start judging people for their actions rather than who they are.