A couple instances of obstreperous racism have grazed the news lately, encouraging me to think a bit on prior restraint. Here are some preliminary thoughts.
My non-representative survey sample on my friends' sense of justice suggests that they rely on their gut to pronounce acts (or outcomes) just. Justice is a feeling. Well, more than a feeling, since they can be pressed to think carefully about details in some cases. But usually just a feeling (citations galore ft. Jon Haidt).
Disgust is also a feeling, and I cannot shake the nagging possibility that the two are deeply and desperately linked. The language and (Lord forgive me) semiotics people use to describe ~undesirables~ across space and time seem if not specifically designed, then at least unconsciously arranged to tickle the yick-yuck sensibility. My hunch about this is why I'm leery of the word "homophobia." Perhaps some aversion to homosexuality is rooted in fear, but I suspect that the bulk is more closely tied to disgust. In Haidt's moral dimensions, it's the same aversion you find with all sorts of out-group biases. Heck, look at some of the horrific slander heaped on the backs of European Jews and the Romany. The sickening rumors of what they do with kidnapped (Christian) children expressly evoke disgust.
An easy response to disgust is to forbid the act it gives rise to (stick it, Strunk and White; I'm finishing my sentence with a preposition). You tell your toddler to stop eating her boogers (for all the good that does in the short run), you shoo your dog away from his vomit, and you shame the dude who walks out of the public restroom without washing his hands after a pinching a loaf. These are good and proper non-telescopic reactions to disgust. Contrast these with the prior restraint of Jim Crow legislation, where scurrilous preferences of taste were lent the truncheon of the state to ensure that dainty bigots did not have to suffer the tepid scourge of mild disgust as they dined, sequestered. Shall we crucify mankind upon a cross of bile?
But like Aristotle points out, justice is all in the proportions. If it's unjust to deny freedom in association ex ante based on the cowardly imaginations of bigots, is it not also unjust to deny freedom in association ex ante based on the imaginations of men of system? Unilateral exchange is hardly euvoluntary.
Just because I may discriminate on disgust-laden sentiments does not imply that I must discriminate on disgust-laden sentiments. Writing special exemptions into the legal code encodes disgust just as surely as the sun rises in the East. Every statue that lends dominion to one free person over another is an insult to Solon.
Repeal Title IX.