With the Supreme Court having legalized same-sex marriage across the country last month, libertarians are left to ask themselves if the fight for gay rights is over. This question is particularly pressing given the great media attention that has been paid to bakers and photographers who have been sued for refusing to service a gay marriage.
In a personal sense, the struggle for LGBT acceptance will never be over since there will always be hateful people in the world. However, from a policy standpoint, I believe there is nothing more that liberty lovers can do that would not infringe upon others’ property rights.
Some LGBT free market groups like the Log Cabin Republicans support additional anti-discrimination protections for LGBT people like the federal Employment Non-Discrimination Act (ENDA). At first glance, it’s easy to see the logic behind such a push. Federal protections already exist in the Civil Rights Act for discrimination based on sex, race, religion, age, and a number of other classes — but not sexual orientation. So why not simply add it for consistency’s sake?
However, the question becomes more complicated when you consider the history and property rights. Regarding the former, as David E. Bernstein points out in Cato Unbound, anti-discrimination laws like the Civil Rights Act were passed to break up a racist monopoly in the Jim Crow South. State and local governments back then conspired with local businesses to keep blacks out of most public and private spaces. This level of animus simply does not exist for homosexuals today. People like myself can walk in public spaces and patronize private businesses largely free from fear of discrimination. That’s because, unlike race, sexual orientation is not a visible trait that one can be instantaneously profiled for. Yes, there are very feminine gay men and butch lesbians who passerby’s can strongly suspect are homosexual. However, suspicion is not confirmation, and oftentimes these individuals can pass as straight if they tried.
That’s not to say that discrimination based on sexual orientation doesn’t exist. It does. Rather, my point is that racial discrimination is on a completely different level than that for sexual orientation because race is a visible quality. So, if libertarians are to endorse anti-discrimination laws for non-visible qualities such as sexual orientation or religion, where does the laundry list of classes stop?
Walter Olson asks the same question at Cato:
At what point do we say no to future demands that protected-group status be accorded to employees based on political and controversial systems of belief, physical appearance (the “looksism” issue), family responsibilities, résumé gaps because of unemployment or other reasons, or use of lawful products or engagement in lawful activities in off hours—to name just a few of the areas that in fact have been the subject of real-world agitation in recent years? If we say yes to all, we introduce a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other “adverse action” against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.
This is a very real slippery slope. Studies have shown that taller and beautiful people make more money throughout their lifetime than their average counterparts. Should shortness and ugliness be a protected class?
Such a scenario is obviously absurd, which is why the default libertarian instinct to resort to property rights is the best solution when it comes to discrimination against gay people. There is no homophobic legal monopoly in the United States today — at least not any more after the Supreme Court’s ruling. Sure, there will always be an occasional baker or photographer who refuses to service a gay wedding, but that should be their fundamental right.
The alternative of suing people for their legitimately held beliefs is nothing short of legal plunder. One cake shop in Oregon now owes $135,000 for declining to service a gay weeding. No liberty lover who truly values the importance of religious liberty and property rights can call this a justified ruling.
Freedom is the glue that holds us all together — black and white, gay and straight, the list goes on and on. Freedom does not mean that we all must serve each other through government force.
However, it does mean that we must tolerate each others’ existence with clearly defined property rights. And, oddly enough, through the free exchange of goods and ideas, markets incentivize us to be nice to each other most of the time.
That’s what America’s about.