Haven’t you heard? Congress is going to pass legislation that is going to turn thousands of people gay. It’s called “Anti-LGBT Discrimination Law” or the “Equality Act of 2015“. In case you haven’t figured out, I’m being facetious; the legislation won’t actually forcibly turn anyone gay. I am perfectly serious, however, when I say that if the legislation passes, a lot of people will suddenly declare themselves to be openly, loudly, proudly, avowedly gay.
The legislation is part of the ongoing struggle for greater gay rights, specifically the struggle to introduce federal protections for gay people. Representing the statist I mean ‘progressive’ view of things is John Oliver, who argues that we need Federal anti-discrimination law to protect gay people from discrimination. His reasoning is never stated in its entirety, though his reasoning for federal legislation is because “some things are too important to be left to the states”—a dangerous line of reasoning because it can be argued that everything is too important to be left to the states. Instead, using a variety of emotional appeals about the horrors of bigots discriminating against gay people, Oliver argues that because it is not illegal to discriminate against gay people, people will be discriminated against, and this is bad (which it is), and therefore government action is justified (which it isn’t).
First, he doesn’t even ask the question “Does the Constitution grant the Federal government such a power?” Perhaps it’s because he thinks the right to never be discriminated against is an actual civil rights’ issue, but it’s probably because he’s a statist who thinks the government should be allowed to do whatever he wants it to (or maybe he’s an ignorant Brit who is too used to unwritten, i.e. meaningless, constitutions). Secondly, he seems to think that government law will be effective at its stated goal, which is either the triumph of optimism over experience or gross navïeté. More important though is a rather subtle blurring of lines between society and government.
At about the 14 minute mark in the video, Oliver pronounces in a fit of righteous indignation that it’s a no-brainer that gay people should not be discriminated against and of course then anti-discrimination laws should be supported. He doesn’t realize that one does not necessarily follow the other. Oliver is conflating society with government. I agree with him that all of us as individuals should not discriminate against people simply because they are gay. I mean, why be lazy? There are plenty of good reasons to discriminate against people, starting with their intelligence and usual lack thereof. One can be against both discrimination and anti-discrimination laws, as I am and will explain shortly.
It is all well and good to ask individuals to be the change they wish to see and not discriminate based on sexuality or color or the like and to chastise those who do—that is something I would gladly get behind—but when you involve the government, that is another kettle of fish entirely. Previously, Oliver was making the appeal to change society voluntarily; by advocating for anti-discrimination law, he wants to force change on society and coerce people to live by Oliver’s standards. He wants a world where if any one of us fails to abide by the government’s definition of “anti-discrimination”, the government will punish you. That I cannot agree with.
Firstly, a law—as opposed to a social convention—is liable to do nothing but fuel a horde of lawyers filing lawsuits against everything under the sun for being in violation of the thousands of pages of anti-discrimination law and regulations likely to be promulgated by the vast swarms of bureaucrats employed in the government’s anti-discrimination bureau in their attempts to define precisely and rigidly just what does and does not constitute “discrimination”, leading to an ever more litigious society dominated by lawyers and spineless weasels who base all their decisions on whether or not it will piss off a lawyer—in short, a less meritocratic society and a more sclerotic one. That alone is enough for me to stand against anti-discrimination law, but then you have to consider that, despite the examples cited by Oliver and his fear mongering that gays can be fired for posting their wedding photos online, discrimination against gays and lesbians doesn’t really happen all that often and the need for a law doesn’t really exist, because individuals and private companies have led the charge for gay acceptance and tolerance all on their own, without government compulsion, well before gay marriage became a commonly accepted norm.
Also, if anti-LGBT discrimination law is passed, then from now on I am a gay man. Seriously, how would you prove I’m not? And as a gay man in a nation with anti-LGBT discrimination law, I would be entitled to many legal benefits and government protections otherwise unavailable to a straight, white, Christian (Protestant), Anglo-Saxon, college educated male. Much like the proliferation of handicap placards and license plates being handed out by crooked doctors because fat and lazy people want to park in the disabled parking spots near the entrance to the Wal-Mart on their way in to buy yet more sleeveless tee-shirts and non-sugar, diabetes friendly “fruit” pies of dubious origin, so too will more and more people claim to be gay in order to be protected by the law. Unlike being black, or a woman, or being old, or having a curious foreign accent, being gay is impossible to prove and invisible at the surface level if one wants it to be hidden.
But by far the most compelling argument against anti-discrimination laws is the argument from liberty, that we are all free to be bigots and horrible, gay-discriminating people, just as we are free to be tolerant of gay people or to love gay people. The same liberty that lets us use discrimination for bad (as in refusing service to gay people) is what lets us discriminate against discriminatory businesses by refusing to order a wedding cake from an anti-gay bakery. It all falls under the umbrella of liberty, specifically: freedom of association. The government has no right to tell me I have to sell cakes to gay people, any more than the government can force me to take on a gay lover, or tell me I can’t sleep with another man if I want to, or force me to write a play about how Obama is the Second Coming of Christ.
That however is a bitter pill for many people to swallow, filled with nuance, subtlety and is at times seemingly contradictory, and many people simply cannot see any credence in my argument at all. Arising from this cognitive failure comes a powerful emotional argument arrayed against our liberty: that discrimination is mean. It’s essentially the driving animus underpinning this article arguing in favor of anti-discrimination laws and against religious freedom laws.
“…nondiscrimination protections aren’t just about access; they’re about basic equality. The injustice occurs in the moment when the refusal of service occurs. It’s a message to same-sex couples that they are less than — that they don’t deserve the same access to public goods as other newly forming families. Nondiscrimination protections literally mitigate harm by interrupting stigma.” (emphasis added)
The article’s author apparently does not believe in private property; he sees a private business as a public property, to which everyone deserves equal access as they would any government service. This is unfortunately a widely held belief among leftists, and explains why they are so in favor of anti-discrimination laws: they believe that all the rights we have as private citizens and individuals evaporate the moment we open a business and that the government has unlimited authority over businesses and can order them to do anything the government pleases. They also believe that as such discrimination by businesses is literally harmful (as opposed to merely insulting and inconvenient) in the same way it would be if Starbucks put arsenic in your coffee.
Against this powerful emotional argument stands the Republicans who, in their great crusade for liberty (that is, if the Republican Party wasn’t a party filled with self-serving career politicians who probably don’t give a single rat’s turd about “the people” or their liberty), are offering the vague, easily mocked, and equally easily dismissed argument in favor of “religious liberty”.
As seen in the article just cited and John Oliver’s video (starting at about 9:17), leftists easily trounce the religious freedom argument. It helps that no one was there to stand up to Oliver and so he can mock and ridicule without having to worry about facts, but I think a lot of people are like Oliver: generally dismissive of religion and religious people, they have little respect for religion and therefore little concern for the concerns of religious people. It doesn’t matter how well the argument of religious freedom is phrased, because a lot of people are like Oliver: they don’t believe in rights. They believe in government granted privileges. We don’t have the right to free speech or free practice of religion in Oliver’s world; we have a government granted privilege to say what we like and practice religion how we like, provided the government approves of what we say. If it’s speech that’s “hate speech”–well then that is fair game for government censorship in their minds. Speech is only free to them if it is acceptable speech, and the same goes for all the other ways we use our liberty, including the right to worship freely (or not at all): you are free to do any religious practices you like as long as we approve of them. That’s why Oliver says that rights like free speech and religion have always come with “reasonable restrictions”. As such, it is very easy for him to resolve the conflict between the right to not be discriminated against and the right to worship as one chooses: the right to never be discriminated against wins every time.
Now, in a real debate with a knowledgeable advocate of the Constitution and individual liberty (Timothy Sanderfur of the Pacific Legal Foundation or any one of the many geniuses working at the CATO Institute would do nicely), Oliver’s simplistic world view would probably begin to crumble, but sadly it is not the eggheads (and I use that as a term of endearment) who get to represent our side of things to the ignorant masses. Instead, it is the hacks, dolts, and scamsters of the Republican Party (as well as a few legitimate candidates for president) who are expected to carry the lance of freedom, and they do a piss poor job of it. Mainly I think this is because fundamentally they are not in favor of freedom but are equally in favor of government granted license as the Democrats (because if the government controls everything, then he who controls government is all powerful) but for different ends–either personal enrichment or some strange idea of a “moral” nation (and a lot of them want America to be not just the shining beacon on a hill but also the world’s policeman, but I digress). The other reason the Republicans are failing to counter Oliver and his ilk’s argument is because the Republicans are too busy pandering to the religious right within their own party to realize that the real reason people like John Oliver are winning this renewed culture war is because the religious freedom argument is a weak argument. It polls well with evangelical Christians and winning their votes is crucial to GOP primaries, hence why so many GOP candidates are talking about Religious liberty–because as long as they win the current election, they don’t care if they torpedo one of their supposed raisons d’être.
The religious liberty argument does however have some merit; just enough to be credible and not laughable, and while it is a very strong argument in favor of letting an individual lead his life according to his own religious beliefs as he sees fit, it is a poor argument for justifying how an individual may treat others. Legally speaking, the Supreme Court has little sympathy for religious liberty. It’s ruled that you can’t use your religion to avoid paying taxes, you can’t use religious freedom to skirt ’round laws against polygamy (thanks Mormons), to discriminate against people for their skin color (as Oliver notes), and in a truly outrageous case, the Supreme Court even ruled that the government can punish you for practicing your religion if your religious practices happen to involve drugs of which the government disapproves. So legally, the religious freedom argument is already on shaky ground. Added to this is the fact that morally speaking it’s very difficult to condone treating other people badly and citing religion as your excuse/justification; it smacks of forcing other people to live by your own morals/religion, which Americans decisively turned against in the 1990s and 2000s. Hiding behind the religious liberty argument is actually worse than useless because it is undermining the cause the Republicans ostensibly support. The religious freedom argument is a weak argument for the reasons spelled out above, but fundamentally it’s a weak argument because it’s not the argument that needs to be made; instead the Republicans are trying to shoehorn the religious argument into a role it doesn’t fit.
Religious liberty is meant to protect our freedom to worship from government purview, not our right to discriminate. Our right to discriminate is protected under our right to discriminate, one of those innumerable, unenumerated rights mentioned of in the Ninth Amendment and protected by the Tenth. The right to discriminate is part and parcel to that greater right, the right to liberty. Fundamentally this is what this debate is about, our right to be free, free to make choices and free to be an individual.
A truly effective counter to Oliver and his ilk would be to modify a classic one-liner from Voltaire: we disagree with your discrimination but we will defend to the death your right to do it. We may not like how someone uses their right to discriminate, but we cannot deny that that right does indeed exist and it is not forfeited simply because one owns or operates a business.
Discrimination is like the right to free speech: yes, some people use that right to say absolutely horrible things, but that is their right, and they are free to say what they like just as we are free to say we disagree with them. So too it is with discrimination; we all have the right to discriminate, and most of us use that right responsibly, and we also use that right to punish those who use that right irresponsibly.
To make another comparison with a right explicitly protected by the Bill of Rights, let’s look at our right to keep and bear arms. The 2nd Amendment clearly states that “the right of the people to keep and bear arms shall not be infringed” and the Supreme Court has ruled that an individual has the right to keep and bear arms. However, plenty of private companies forbid employees and patrons from bringing weapons onto their business premises. Sears does not allow its customers or employees to bring weapons into its store, and Regal Cinemas has recently ordered ticket inspectors to check movie-goers’ bags for weapons—a policy that is not only ridiculous but stupid because anyone can bring a gun into a cinema if they want to simply by tucking it into their waistband or putting it in their pocket. Yet these companies are not infringing on our right to bear arms. These companies are allowed to determine who may bring what onto their property; it’s their property, they get to make the rules. No one is compelling you to shop at Sears and no one is forcing you to see a movie at Regal Cinemas; if you don’t like their weapons’ policies, go somewhere else.
Likewise, no one is forcing you to patronize a discriminatory wedding cake bakery or pizzeria. It’s someone else’s property and they get to do what they like with it, but they can do no harm to you unless you willingly enter their premises. If you don’t like what they do, then you can avoid harm simply by not patronizing their business. Besides, wouldn’t you rather your money went to someone who didn’t discriminate?
All of us use the right to discriminate every day. Businesses are discriminated against daily by thousands, potentially millions of would-be customers who, for every conceivable reason and sometimes without reason, decide to spend their money elsewhere or not at all. Imagine if the government passed an anti-cola discrimination law, making it illegal for any citizen to fail to drink Coke, and that any citizen who did not buy or drink a cola product every day was guilty of illegal “discrimination”. Okay, you’re probably thinking that’s ridiculous (maybe because it is), but imagine this scenario: an anti-short guy discrimination law.
Women prefer taller men; that’s based not just on experience but hard science. There is nothing more frustrating (and predictable) than spending an entire night in some horrible bar or nightclub as a short(er) man and never getting a second look from a woman (or even a first glance). Short men are also passed over for promotions more frequently at work and earn less over their life time than comparable men of taller stature. This is clearly harmful, pernicious, evil discrimination, discrimination against short men! Nobody should be in favor of discrimination, right? Clearly we need a law to prevent this! From now on, women who do not date enough short men and women who refuse to sleep with short men will be punished with fines and jail time! Businesses who do not pay short men enough or promote them often enough will face the same! And any business that fires a short man will have to go through a very lengthy, complicated process filled with lawyers and government bureaucrats to make sure that Affirmative action for short men will be imposed, ensuring more short men go to college, get dates, cheaper bank loans, promotions at work, and the right to sue anyone for any slight, real or imagined, spoken or unspoken, and can expect to win, and anyone even suspected of height discrimination will be harshly punished by the government!
Of course this is ridiculous, but why? Because short men haven’t faced the same historic challenges as gays and blacks? Dislike of short people is programmed into us genetically; it predates civilization! Short men have faced discrimination before humans even branched off into multiple skin colors. No, it’s ridiculous because it makes two ridiculous assumptions: that short men need protecting and are entirely incapable of facing the slings and arrows life throws at everyone every day (indeed, at the risk of being facetious, one could say this argument assumes short men need a “leg up”). The other absurd assumption is that the government can adequately offer this protection by punishing those who run afoul of thousands of pages of anti-discrimination law and regulation.
Moreover, it is a clear violation of other people’s liberty (specifically women in this instance). Women (or, more correctly, feminists) are staunch defenders of a woman’s right to choose, specifically their right to choose who they will and will not sleep with. Every woman has the right to sleep with any consenting adult, and more importantly, every woman has the right to refuse to sleep with whoever she wants (arguably the more important of the two). Why then is this same standard not applied to all citizens in every choice they make?
If a business owner wants to discriminate, it does not matter why; he does not have to give any particular reason for his discrimination. The fact is that the business owner is well within his rights to refuse service to anyone for any reason he damn well pleases, whether it’s the color of the customer’s skin, the color of their shirt, or for no reason at all. The business is the business owner’s property and it’s his business who he serves and no one else’s. The freedoms and rights we all enjoy as individuals do not suddenly and mysteriously evaporate simply because an individual starts or runs a business, and the right to discriminate is one of those rights.
You do not have the right to never be discriminated against. Rights are meant to protect you, not force others to live how you want them to live. Rights protect your life, your liberty, and your property; they do not grant you special priveleges from government. The fundamental problem with anti-discrimination laws is that they try to correct other people’s behavior, rather than seek to enshrine a right that you already have. To go back to the sex example, I have the right to sleep with anyone I want (as long as they agree to it); that’s freedom. I do not have the right to force someone to sleep with me if they don’t want to just because I call it “discrimination”.
At the same time that I argue in favor of the right to discriminate, I abhor anyone who uses this right for bigoted ends. Discrimination based on skin color or sexuality is an abomination, and I would never patronize any business which openly commits such discrimination or its equivalent–though inevitably, people are probably going to disagree on what is and isn’t discrimination (yet another reason why anti-discrimination laws are a bad idea). Google and other tech firms in Silicon Valley are getting a lot of heat for not employing “enough” black people, yet no one critiques the NBA for not employing enough white people (or short people).
Discrimination based on traits we cannot control–like skin color, gender, sexuality, where we were born, et. al.–is deplorable, but while it has adverse impacts, trying to cure society of it through the power of government is a case where the cure is far worse than the disease. Discrimination is a product of liberty; to curtail private discrimination by force (i.e. government) would be to curtail our liberty. Now, sure, a lot of you reading this are saying “The freedom to discriminate is no freedom at all, because we should not be free to do bad things to other people”. Well, actually, you do. When a woman refuses a man’s offer to buy her a drink or go on a date, that’s an incredibly mean thing to do which often has tremendously deleterious effects on a man, yet no one thinks any ill of the woman, and for good reason. Likewise, when a man tells a girl she’s ugly, that too can be incredibly harmful (more harmful, I would wager, than being told a wedding cake maker won’t make you a wedding cake; all that results in is driving 20 minutes down the road to another bakery where your money won’t go to someone who hates you). This is where we have to face a fact that many people inherently recognize:
Discrimination is not inherently a bad thing. Discrimination simply means we make choices, choices often based on our values. Sometimes people’s values are bigoted, and that is unfortunate, but people have the right to be bigoted and ignorant, just as we have the right to mock, ridicule, and ignore the bigoted and ignorant among us. Yes, racial discrimination and all other forms of discrimination like it is inherently bad, but if we are not free to discriminate for bad reasons, will we be free to discriminate for good reasons? I oppose government laws against private discrimination (I’m all in favor of prohibitions on government discrimination) for the same reason I oppose government regulations on free speech. If we aren’t free to say the worst things imaginable, then we don’t have free speech. I don’t have to be in favor of or agree with holocuast deniers to say they have a right to say what they want to say. Likewise, I don’t have to be a racist or a homophobe to say that people can discriminate against blacks or gays; they’d just better be prepared to be discriminated against themselves. I don’t want the government to be an arbiter of “good” speech and “bad” speech and I don’t want them to determine for me what is acceptable or unacceptable discrimination. Inevitably, the government will use that power to punish people it dislikes and silence its critics.
I may disagree with how you use your right to discriminate, but I will defend to the death the idea that you do indeed have such a right.