Like most of my friends, I think Arizona governor Jan Brewer was probably right to veto SB 1062, which as Reason‘s J.D. Tucille writes, was less a “blow against big government” than a “homophobic stunt” designed to signal official approval of anti-gay animus, while creating a special class of associational rights for people who justify that animus by reference to ancient myths rather than plain old secular discomfort. Even worse was a similar proposal in Kansas, which not only singled out gay citizens as specially approved targets of discrimination, but licensed that discrimination when practiced by government employees acting in an official capacity, and forced businesses to “accommodate” employees who demanded to pick and choose which customers they would deign to serve.
Unlike most of my friends, I do not find it self evident that the “liberty interest” invoked by religious bigots is some kind of absurd sham worthy of mention only in derisive scare quotes. And I find it a bit disturbing that many of them seem to assume that if any anti-discrimination laws protecting any class of Americans have ever been justified, the weight of that interest has effectively been reduced to zero, and may be ignored for all future purposes. Having decided it was OK to forbid motels from turning away African Americans in 1964, in other words, many seem to take it as already settled that there’s no possible objection to compelling a photographer to work a gay wedding—except, perhaps, the invalid one rooted in the view that the homophobe’s bigotry is somehow more justifiable than the racist’s. I’m perfectly open to the notion that it may be wise and justifiable to extent the protections of anti-discrimination law to groups not currently covered—but I also wish supporters of such reforms would acknowledge that there’s a genuine impingement on associational freedom involved in such extensions, and that no simple sweeping principle can obviate the need for a close examination of the tradeoffs in each case.
As I argued in Newsweek a few years back, the “purist” libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act, as a priori unjust violations of sacrosanct property rights is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation—which had not only hopelessly tainted property distributions but created deficits in economic and social capital transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated “private” discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.
We ultimately settled on rules barring race discrimination in employment, housing, and access to “public accommodations”—which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest—appalling as the racist’s exercise of it might be—and continue to recognize it in other domains. A racist can still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or as a prospective employee choose to consider only job offers from firms run or staffed primarily by members of their own race. Partly, of course, this is because regulations in these domains would be difficult or impossible to enforce—but partly it’s because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.
Some of the considerations supporting our limited prohibition of racial discrimination apply to discrimination against gay Americans. But some don’t. Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism. We don’t see the same profound and persistent socioeconomic disparities. Sexual orientation is also not generally obvious to casual observation in a commercial context, which as a practical matter makes exclusion more costly and labor intensive for the bigot. And while I’ve seen any number of claims that allowing private orientation discrimination would give rise to a new Jim Crow era, the fact is that such discrimination is already perfectly legal in most of the country, and it seems as though very few businesses are actually interested in pursuing such policies.
Rather, the actual cases we’ve been hearing about recently involve bigoted photographers or bakers—who run small businesses but are effectively acting as short-term employees—who balk at providing their services to gay couples who are planning weddings. (I take for granted that gay marriage should, of course, be legal everywhere.) What’s the balance of burdens in these cases? The discrimination involved here doesn’t plausibly deny the gay couples effective civic equality: There are plenty of bakers and photographers who would be only too happy to take their money. Under the circumstances, the urge to either fine or compel the services of these misguided homophobes comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views. And much as I’d like for us all to pressure them to change those views—or at the very least shame them into changing their practices—if there turn out to be few enough of them that they’re not creating a systemic problem for gay citizens, it’s hard to see an interest sufficiently compelling to justify legal compulsion—especially in professions with an inherently expressive character, like photography. In short: Yes, these people are assholes, but that alone doesn’t tell us how to balance their interest in expressive association against competing interests at this particular point in our history.
In a sense, bigotry in the economic realm is a bit like pollution: Whether a prohibition is justifiable—and how stringent the limits should be—will depend on whether enough people are doing it that you have an appreciable aggregate harm. We don’t just deem carbon emission an intrinsic wrong and categorically ban it—we recognize that industrial smokestacks are probably worth regulating fairly strictly, while banning fireplaces would limit individuals freedom to use their property more severely than can be justified by the public interest in avoiding the marginal ecological harm imposed, given levels of fireplace usage observed in the real world.
This is, of course, where it’s incumbent on me as a straight guy to check my privilege. (I checked; it’s still there.) Maybe I’m empirically wrong about the practical consequences of private discrimination—which it would be easy enough to be given that I’m not on the receiving end of this particular variety. Zack Beauchamp argues that there is, in fact, good reason to expect systemic harm. If that’s the case, it might still be worth considering where the harm of exclusion is serious enough to outweigh the interest in expressive economic association. It seems plausible the balance might come out differently for, say, medical clinics and supermarkets than for wedding photographers. In other cases—like hiring—it might be that the right balance is struck by a transparency mandate, where the worst harms are inflicted on people who absorb all the opportunity costs of taking a particular job, only to belatedly discover that heterosexuality was an undisclosed job requirement.
My point here, in case it wasn’t already clear, isn’t really to argue that laws barring sexual orientation discrimination are either justified or unjustified. I don’t have enough data to say. The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue. If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain—or in subsets of that domain—then I hope their numbers soon dwindle to the point where those restrictions become unnecessary. But at some point, I would hope we can at least agree in principle, they become a sufficiently irrelevant minority that we are not entitled to inflict legal penalties strictly as a means of signalling our superior enlightenment and symbolic disapproval.