Last month I posted about the Arizona legislature’s move to legitimise discrimination against same-sex couples, which was vetoed by the governor. My point was that even though I’m generally sceptical about anti-discrimination laws, this effort to selectively exempt certain actions from them was the wrong way to go.
Now James Peron at the Huffington Post has made the argument much better than I could. Do go and read the whole thing, but this will give you the flavor:
Here you get to the crux of what fundamentalist policy groups are attempting to do: They want to establish an inequality of rights, giving them rights denied to all other Americans.
… In their eyes, the law is supposed to be a one-way street protecting them, and only them. They may discriminate to their heart’s content, but all other Americans are bound by anti-discrimination legislation.
A non-religious bigot is out of luck in the views of the Christian right. Only bigotry founded in religious justification should exempt one from the law.
Peron argues compellingly that the fact that Christian fundamentalists are so willing to use anti-discrimination laws to defend their own actions – sometimes in highly imaginative ways – shows that they have no objection to such laws in principle. They only object when they benefit groups that the fundamentalists dislike: primarily gay people.
Giving the religiously-minded a special exemption isn’t an increase in freedom; it is, in Peron’s words, “establishment of religion on the installment plan.”
Of course, some who call themselves libertarians do support such exemptions. But to use an extremely useful distinction advanced last week by Jeffrey Tucker, they would be “brutalist” rather than “humanitarian” libertarians. The difference is that the humanitarian wants freedom because they believe it will promote peace and human flourishing; the brutalist doesn’t care about those things, but wants the freedom to outrage and offend.
As Tucker puts it:
These two impulses are radically different. The first values the social peace that emerges from freedom, while the second values the freedom to reject cooperation in favor of gut-level prejudice. The first wants to reduce the role of power and privilege in the world, while the second wants the freedom to assert power and privilege within the strict confines of private property rights and the freedom to disassociate.
The same distinction also illuminates the battle over racial vilification in Australia, but that will have to be a topic for another day.
Mention of the Arizona bill also gives me the opportunity to apologise for neglecting the request by commenters on the original post to expand on my underlying opposition to anti-discrimination law. I’ll try to briefly do so here.
I start with a presumption in favor of freedom of association. Other things being equal, people should have the right to decide whether or not they want to deal with others and on what basis. That seems to be one of the fundamental planks of a free society.
Other things, of course, are often not equal. If I’ve just boarded a crowded tram, I can’t then claim the right to stop others getting on after me on the basis that I don’t want to associate so closely with them. That’s just how tram travel works: I’ve implicitly consented to the association by getting on in the first place (and, importantly, I can end it if I choose by getting off).
Refusal to associate with others – because, for example, one disapproves of their race or sexuality or political beliefs – can be hurtful and offensive, sometimes deeply so. Certainly it can be morally wrong. But the law neither can nor should address every sort of moral wrongness. The key insight of liberalism is that freedom has to be defended even when we know it will be abused.
What makes this sort of wrongness particularly inappropriate for legal redress is that its existence is sensitive to your frame of reference. We all accept that some sorts of “discrimination” are perfectly innocent: that it’s OK, for example, to prefer tall people to short people if you’re picking a basketball team. But whether something is or is not a relevant criterion in a particular case is not a hard factual question, and the machinery of the state is not very well equipped to answer it.
Nonetheless, sometimes the harm done is sufficiently clear that it may be worth making the attempt. Where members of a particular group have historically been oppressed by a state-sanctioned system of discrimination, anti-discrimination laws may a necessary means to redress matters – as with the Civil Rights acts in the United States, and more recently with attempts to overcome institutionalised sexism. There may be other cases, but the onus is on their proponents to demonstrate the dire need.
That’s the point of saying that I start with a “presumption” against such laws: it’s not a conclusive presumption, and it can be outweighed by appropriately serious considerations. But my view is that we’ve gone a good deal further than we need to.