A recent spate of proposed laws protecting business owners’ right to discriminate against homosexuals has reignited a longstanding debate in the libertarian community. Under the guise of protecting “religious freedom,” 13 states have each introduced bills over the past few months preempting the State from forcing employees to service individuals if they believe doing so conflicts with their beliefs. While none of the bills specifically mention homosexuality, each one effectively only applies to gays since most other classes (e.g., race, sex, religion) are protected under the federal Civil Rights Act.
Many libertarians have cheered the proposed laws, citing the small-government principle that the State has no business interfering in individuals’ private contracts. LewRockwell.com’s Lawrence M. Vance voiced his support of Kansas’s recent attempt, while admitting it “doesn’t go far enough,” reasoning that “in as much as the bill legalizes—if only in a small degree—the freedom to discriminate, such provisions in it should be welcomed.” Such an instrumentalist approach to protecting freedom of association is strategically flawed, as the current bills’ targeting of gays suggests bigoted motives that libertarians best not associate with.
Legally, businesses in almost all of the 13 states in question already have the right to deny gays service. As mentioned previously, sexual orientation is not currently a protected class in the Civil Rights Act. While 21 states have compensated for this federal gap by enacting LGBT nondiscrimination acts of their own, no state considering the current legislation is in the number except Oregon. Thus, these anti-antidiscrimination bills do not expand freedom of association but merely serve as redundant reassurance of the right to not serve gays—effectively targeting the LGBT community.
While almost every libertarian would defend an individual’s right to associate (and not associate) with whomever they choose, that’s not quite the issue with the current class of bills. Their implicit targeting alienates one demographic, making the bills look like not-so-subtle expressions of bigotry. The freedom of association issue looks like a red herring here.
As David E. Bernstein explained in a 2010 Cato Unbound essay, “I would be troubled if there was a sudden popular move to repeal antidiscrimination legislation, if it were unaccompanied by broader libertarian political trends, because it would suggest that opposition to such laws arose from hostility to minority groups, not from opposition to Big Government.” Granted, Bernstein is speaking about repealing antidiscrimination laws whereas the issue at hand is enacting laws that protect discrimination, but the underlying point is analogous. Namely, a libertarian push for protecting discrimination suggests its advocates are motivated by bigotry, regardless of whether that perception is true. The present case only amplifies this point. And perceptions matter.
Fortunately, the issue may be moot soon enough thanks to the massive public outrage that has accompanied these bills, prompting some of the most conservative state legislatures and governors to reject the measures. On February 18, four bills in South Dakota, Kansas, Idaho, and Tennessee failed to pass their state legislatures. One week later, Arizona Gov. Jan Brewer vetoed another attempt that captured national attention.
Libertarians have a long history of being ahead of the curve on gay rights. The Libertarian Party has supported marriage equality since its founding in 1971, decades before the two major parties dared to address the topic. Associating with an apparently homophobic push to protect the right to discriminate against gays that already exists would suddenly put the movement on the losing side of the question of LGBT equality.