The Washington Post:
Faith organizations and individuals who view homosexuality as sinful and refuse to provide services to gay people are losing a growing number of legal battles that they say are costing them their religious freedom.
The lawsuits have resulted from states and communities that have banned discrimination based on sexual orientation. Those laws have created a clash between the right to be free from discrimination and the right to freedom of religion, religious groups said, with faith losing. They point to what they say are ominous recent examples:
– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney’s costs after she refused to photograph a gay couple’s commitment ceremony.
– A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.
– Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.
– A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage.
…
“People seem to say that if you enter the world of commerce, you lose all your First Amendment rights” to free exercise of religion, said Jordan Lorence, senior counsel at the Alliance Defense Fund, a Christian legal organization that has represented several businesses. “They … have become nothing more than vending machines, and the government can dictate the conditions under which they dispense their goods and services.”
This is, of course, a decidedly libertarian argument. In Libertopia, all interactions, or at least all those involving competent adults, are strictly voluntary. There would be what the law calls “economic substantive due process,” in the same way (and for the same reasons) that there is “privacy substantive due process” (e.g., Roe v. Wade, Lawrence v. Texas).
This is where libertarians tend to get into trouble. When confronted by non-libertarians with charges such as, “you oppose the Civil Rights Act” or “you believe in the right to be a racist business owner,” we basically have to plead “guilty.”
Of course, we also have the affirmative defense of asymptotic irrelevance. In Libertopia, there wouldn’t be a Civil Rights Act because there wouldn’t need to be a Civil Rights Act. Recall that Libertopia would be a capitalist society — and capitalism is always the first best weapon against bigotry. If you’re a “greedy” businessperson, then you’ll gladly buy from blacks, sell to Jews and hire gays. And if you don’t, then you will suffer the punitive damages of competition — which far exceed those that could be imposed by any court of law.
So yes, on a strictly superficial level, libertarians would generally agree with the aforementioned laments by the bigots and theocrats. Point conceded.
But consider: What if the aforementioned litany of horribles had not been exclusively about gays?
– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney’s costs after she refused to photograph an interracial couple’s commitment ceremony.
– A psychologist in Georgia was fired after she declined for religious reasons to counsel a Jew about her relationship.
– Christian fertility doctors in California who refused to artificially inseminate a disabled patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.
– A Christian student group was not recognized at a University of California law school because it denies membership to foreign students.
Most hard-core libertarians would be unfazed in their support of economic substantive due process and its requisite toleration of such private discrimination in most of these scenarios. In fact, I would wager that libertarians as a group would be more likely to defend all the bigots than the bigots themselves would be (“Blacks are Christians; our problem is with Jews.” “Jews are white; our problem is with blacks.” Etc.)
The “victimized” Christian bigots are of course not making a thorough, comprehensive (i.e., truly libertarian) demand for full entrepreneurial freedom of contract — and its reciprocal “right to refuse service to anyone.” All they want to do is discriminate against gays. Not “anyone and everyone.” Just gays.
Which is precisely why they should not be allowed to do so. As I have blogged previously: Whether or not you approve of bans on private discrimination is not the point — we are not debating the creation of Libertopia.
The point is instead whether, given that we already have such laws, are we going to craft and apply those laws consistently, logically and equitably — or are we going to short-circuit the entire raison d’être of such laws by allowing the majoritarian mob to fashion carve-outs for the very same insular minorities who are most in need of such laws?
If the religious bigots really want to invoke libertarian arguments to legitimize their bigotry, then they better be prepared to be judged by real libertarians about the entire spectrum of libertarian issues — including separation of church and state.
Think they’ll go for it?
Previously:
–On the ENDA-T Conundrum
–eHarmony, eCommerce and eBigotry
–Separation of Ice Cream Parlor and State?
22 responses so far ↓
Link The Pajama Pundit // Apr 16, 2009 at 10:09 am
Excellent post.
Have you seen this? It makes a very good case for marriage equality and touches on many of the points that you make.
Link Andy Walker // Apr 16, 2009 at 10:29 am
As a Libertarian as well, I see the main problem we always run into as what to do with competing rights. For example, does a gay couple have the right to be artificially inseminated? Of course. BUT, does a doctor have a right to refuse treatment to whomever they want? Absolutely.
These two rights are in direct conflict. In this case, I'd tend to favor the doctor, since the couple is free to choose another doctor that will serve them. If you force the doctor to give treatment, you have essentially enslaved them.
Of course, the doctor's employer is free to make continued employment contigent on providing care to the couple in question. But at that point it is resolved by moving the problem to an employment/contract question and not a rights question, and the government is no longer involved (at least in Libertopia).
Link Bill Hartwell // Apr 16, 2009 at 5:45 pm
Actually, Andy, the rights are not in conflict. A right to be inseminated is not a right to be inseminated BY DOCTOR A, any more than a right to be married is a right to be married IN CHURCH A.
Our right to do something as a human being does not give rise to an obligation on the part of any other human being to perform for us. It merely means we have the right to find someone who is willing to contract with us on mutually agreeable terms.
Link Malcolm // Apr 16, 2009 at 11:10 pm
Well, the logical extension to all of this would be the right of someone to refuse to serve a Catholic because the Dogma of the Catholic Church is offensive to that person. Or refusing to photograph the marriage of a couple of Evangelical Christians because their beliefs breed ignorance and bigotry and I will not be a party to a religious ceremony involving such nonsense, etc.
But I suspect that the Religious Right all in favor of "Religious Freedom" would find fault with my refusal to serve them at my lunch counter because I am offended by their hateful beliefs parading as religion.
Link Andy Walker // Apr 17, 2009 at 8:57 am
Bill, that was my point, sorry if I was unclear.
Malcolm, you have quite a chip on your shoulder about religion. I guess "live and let live" is not in your vocabulary.
And yes, it is your right to refuse service to anyone you choose, based on any criteria you choose. However, the right to do something does not mean that action is without consequence. If your employer does not agree with your ideals, you can be disciplined or fired. And you should expect the people you refuse to serve to boycott you, write unflattering articles, or otherwise use their free speech and assembly rights to try to change your mind.
Link Michael Seebeck // Apr 17, 2009 at 1:03 pm
The cases in question were all travesties of justice, because free markets dictate that a person can be refused service for any reason, and the person refused can simply lump it. Where the equality movement misses the point is the difference between the public sector of government and the private sector of commerce. We see it all the time in both religious (including the same-gender marriage issue) and racial controversies all the time. In this day in age, the real tragedy is not the bias, but the failure to understand and differentiate between the two sectors, and how our rights and responsibilities apply in each. Fixing that issue will go a long way, and the libertarian perspective on it is the best educator. The statist viewpoint just doesn't get it.
Link Dan in Euroland // Apr 18, 2009 at 7:01 pm
If you are a libertarian, and you believe that all laws like those you describe are unjust, then why would you want to increase the scope of that injustice?
I don't see how expanding these unjust laws so that they go from being inequitably unjust or illogically unjust to equitably or logically unjust improves the situation. If anything it increases the net burdens on society. The issue isn't homosexuality, the issue is limiting the expansion and impact of unjust laws.
Link Brian Miller // Apr 18, 2009 at 10:03 pm
BUT, does a doctor have a right to refuse treatment to whomever they want? Absolutely.
Of course, the same doctor who asserts an absolute right to treat only who he wants would oppose the liberalization or removal of the medical licensing scheme that artificially restricts competition and would allow physicians who would treat gay people or Jews or inter-racially married individuals to compete with him.
This is the most hypocritical aspect of the religious right.
They support big government schemes, like licensing restrictions on health services, that create unnatural monopolies on who can participate in the market.
Then, AFTER those government-created restrictions have been imposed, they claim that they have an absolute right as individuals to refuse treatment to others.
I think the statists should be forced to drink the hemlock of their Faustian bargain. If government is to license, restrict, and strictly regulate the medical, prescription and other industries to create a lucrative regulated monopoly on competition for physicians and other institutions, then those institutions must treat everyone and be irreligious as the First Amendment requires.
If the religious nuts don't like it, then they should join Libertarians in calling for an end to the statist licensing monopoly that entraps them.
Of course, they never will, because the religious right's agenda is the use of government power to oppress those with whom they disagree. They believe that only they have rights.
Link Brian Miller // Apr 18, 2009 at 10:08 pm
The cases in question were all travesties of justice, because free markets dictate that a person can be refused service for any reason, and the person refused can simply lump it. Where the equality movement misses the point is the difference between the public sector of government and the private sector of commerce.
Once again, Mr. Seebeck illustrates his ignorance.
Doctors and other businesses in this country do not operate in a free market — and haven't for over 80 years.
The religious right has been central to this effort. Religious rightist organizations pushed for anti-discrimination laws. They pushed to eliminate the right of physicians and others to refuse to engage with the religious. They created and implemented a regulatory framework to elevate themselves at the expense of others AND the free market.
And now that the framework they've elected to build and support and sustain undermines THEIR rights, they're suddenly outraged. Rather than support the liquidation of that statist framework, they are instead asserting special rights — that they should have a right to discriminate within that regulatory framework, even as others cannot.
That's the issue here.
Seebeck has no right to lecture the "equality" movement, because he's never been part of it, nor has he encountered the sort of statist smackdowns that led to the formation of the equality movement, nor has he been a reliable supporter of efforts to dismantle the institutions in question that have used government power to harm the people in question. His support of the ridiculous "Domestic Partnership Initiative" shows that he's even been willing to use statist power to punish the majority!
Link Hypocrites invoking libertarian arguments are still hypocrites | The League of Ordinary Gentlemen // Apr 19, 2009 at 10:19 pm
[...] Kipesquire (I couldn't have said it better myself): The “victimized” Christian bigots are of course not making a thorough, comprehensive (i.e., [...]
Link SplendidOne // Apr 20, 2009 at 2:55 pm
I'm with Malcolm. Just the other day I fantasized these two little storefronts in a small town. One has a sign out front that says, "Job Available: No Gays Need Apply," and the other one has a sign that says "Jobs Available: No Christians Need Apply."
What's sauce for the goose is sauce for the gander.
And, yes, I have a chip on my shoulder today. I forgot and tried to buy a six-pack of beer yesterday at a Miejer store, to take disc golfing. And, of course, couldn't, due to the darned Christians.
Link Guy From DC // Apr 20, 2009 at 3:59 pm
Gay marriage foes think it's horrible — HORRIBLE — that the people highlighted in the NOM ad weren't allowed to discriminate (claiming that their right to discriminate in these sorts of instances should be guaranteed as part of their Constitutionally protected religious liberties). However, many of them strangely think that it's JUST AS OUTRAGEOUS when, as was the case in some instances California after Prop. 8, that they face similar sorts of "discrimination." They howled when people voted with their dollars and didn't support businesses owned and operated by supporters of Prop. 8. I don't want to label them hypocrites, but they seem to be advocating for a reality where their religious freedoms allow them to refuse anything and everything that conflicts with their personal beliefs, while simultaneously demanding that no one else be allowed to refuse them anything because of their beliefs. That's not libertarianism…It's a radical Christian theocracy.
Link Mark // Apr 20, 2009 at 4:40 pm
"If you are a libertarian, and you believe that all laws like those you describe are unjust, then why would you want to increase the scope of that injustice?"
I believe that laws against smoking marijuana are unjust. But I would still oppose a law that legalized marijuana for whites, while still jailing blacks who use it. Justice for only a few isn't justice at all.
Link Greg // Apr 20, 2009 at 5:14 pm
I disagree. Refusing to advocate for deregulation of the right to assemble on the grounds that the assemblers only want to discriminate against a small group is a case for doing nothing whatsoever. Should we refuse to deregulate markets on the grounds that other markets are still regulated? Should we refuse to lift the capital gains taxes on gold on the grounds that gold-owners don't care what happens to silver-owners? Should we refuse to deregulate dentistry on the grounds that denstists don't care if we deregulate lawyering? I understand that there are more hazards in partial-deregulation than total deregulation, but unless you think it politically feasible to totally deregulate everything at once (which would be an odd position indeed, in the age of Obama), your political philosophy serves no practical purpose in modern America. Such political philosophies are better suited for writing novels than advocacy.
Link Ray // Apr 20, 2009 at 6:35 pm
The United States does not reject, marriages between Atheists, Hindus, Muslims, Jews, Buddhists, Sikhs, Animists, Wiccans, etc… If marriage in this country was founded in Christian doctrine, then we would have to reject marriage of any non-Christian.
Same Sex marriage is pure gender discrimination. Two men regardless if they'll sleep together should have the same rights as a man and a woman. If two men or two women do not have the same rights as a pair consisting of a man and a woman, you're giving superior rights to one group. Which if you read the constitution and the laws of the United States, there is no basis for that.
Link adam // Apr 20, 2009 at 7:45 pm
What if you live in a small town and the only ambulance operator refuses to transport you because you are black and so you die on the street instead of surviving? I see no justice in allowing freedom of choice when it results in needless deaths like this, which are tantamount to murder. Emergency medicine seems like a big problem for complete freedom of cdiscrimination- some bigots would be willing to let people die for a little less money.
Link Iowa Liberal » Blog Archive » The Gay Exemption Clause. // Apr 20, 2009 at 8:24 pm
[...] A brilliant point is made (you know it's brilliant when you slap your head and yell, "Why didn't I think of that already, it's so simple!") The “victimized” Christian bigots are of course not making a thorough, comprehensive (i.e., truly libertarian) demand for full entrepreneurial freedom of contract — and its reciprocal “right to refuse service to anyone.” All they want to do is discriminate against gays. Not “anyone and everyone.” Just gays. [...]
Link Stephen // Apr 20, 2009 at 11:12 pm
In Libertopia, there wouldn’t be a Civil Rights Act because there wouldn’t need to be a Civil Rights Act. Recall that Libertopia would be a capitalist society — and capitalism is always the first best weapon against bigotry. If you’re a “greedy” businessperson, then you’ll gladly buy from blacks, sell to Jews and hire gays. And if you don’t, then you will suffer the punitive damages of competition — which far exceed those that could be imposed by any court of law.
This is not necessarily the case. If the majority of the customers in the area prefer establishments that discriminate, then there is an incentive to discriminate. (Or alternatively if those with the majority of the money prefer the same.)
Perhaps we can stipulate that in Libertopia people do not have irrational prejudices against others.
Link Andy Walker // Apr 21, 2009 at 8:17 am
Brian, your post above seems to confuse me with the religious right. Nothing could be further from the truth. I agree that STATE licensing is a bad idea for any profession; I am however fully in support of free market solutions like accreditation through professional organizations. That does not preclude others from practicing their profession, but does allow consumers to see which professionals conform to standards set forth by their industry.
The thing that puzzles me is you seem to equate anyone having a moral or ethical stance on any subject to be a "tool of the religious right." You do understand the difference between morals, ethics, and religion, do you not?
Link mthom // Apr 22, 2009 at 6:46 pm
The hypocrisy of libertarians when it comes to using the state to get their way on social issues is the reason I will never call myself a libertarian.
Link Bill Hartwell // Apr 23, 2009 at 2:26 pm
Thanks for the clarification, Andy.
I agree regarding the difference between morals, ethics, and religion, as well as the right of professionals to establish standards of practice, as long as those standards are not imposed by government.
For instance (on the professional standards side), the AAFP vs. the AMA gives two different professional groups covering doctors, each of which has established its own standards of practice. Unfortunately, in most states, the AMA standards are imposed by the government, so doctors who are members of the AAFP are forced to also be members of the AMA if they want to be licensed by the government. This is wrong. Why should we not be allowed to choose the professionals whose standards of practice we agree with, and shun those we don't agree with? In a free market, we could. But, in medicine as in so many other areas, we do not have a free market, and have not for many years. So, we are forced to endure the practices of those who have influence in the State, regardless of our preferences, because that influence has been used to create laws that favor the organization (in this case, the AMA) that has the influence.
In religion, ethics, and morals (areas which may overlap to some extent, but which are entirely different when taken individually), we have members of certain religions who are attempting to impose their religion's morals on the rest of us, regardless of our own personal moral and ethical beliefs and practices, and so we have to fight for the right to practice our own religious, moral, and ethical standards. For instance, my own ethical standard says that no one has the right to initiate force on anyone else, for any reason. This clearly goes against the standards of some of the major religions in America, as well as the moral positions taken by many popular political and social speakers.
mthom is seriously confused when he claims that libertarians use the state to get their way on social issues. Libertarians don't use the state to get their way on anything. Libertarians are interested in eliminating the state's power, on social issues as well as every other issue. For mthom to claim otherwise shows his lack of understanding of libertarianism.
Hmmm…. have I rambled enough yet? I think so.
Link McGanahan Skejellyfetti // Apr 27, 2009 at 3:21 pm
And no one should be allowed to discriminate against us necrophiliacs either!