Goldwater would not be considered a
conservative today (as he observed, he was eventually condemned as a
liberal for supporting abortion rights), and relatively few Republicans
would join him in supporting the Employment Non-Discrimination Act
(ENDA), barring discrimination on the basis of sexual orientation or
gender identity. Recently reintroduced in Congress, with a little
bipartisan Senate support, ENDA has virtually no chance of passing the
ultra-conservative Republican House. Today's conservatives are
selectively resurrecting libertarian arguments against civil-rights laws
in their fight against the dreaded "homosexual agenda."
on racial, religious, and sexual discrimination, in general, and the
1964 Civil Rights Act, in particular, still require political obeisance,
but bans on discrimination based on sexual orientation or gender
identity are condemned by the religious right as flagrant violations of
religious freedom. ENDA "wages war on freedom of religion in the
workplace," Congressman Mike Pence declares.
Right-wing advocacy groups agree: "ENDA is a dangerous, blatantly
unconstitutional bill that would pit the government directly against the
free exercise of religion," according to Alliance Defense Fund President, Alan Sears.
are principled, moral, and pragmatic libertarian arguments for
unregulated markets unhampered by civil-rights laws. The laws do
infringe on freedom of association, and if you consider the
associational rights of corporate employers equal to the associational
rights essential to private groups and intimate relations (which I do
not), then you agree with Rand Paul's 2002 statement that "a free society will abide unofficial, private discrimination."
That's the moral argument against civil-rights laws. The pragmatic
argument rests on the view that free markets are rational and
discrimination irrational. Free markets are more effective than civil-rights laws in "promoting tolerance and reducing bigotry," Boston Globe
columnist Jeff Jacoby asserts.
But if this were true, then the 1964 Civil Rights Act would have been
redundant. If this were true, then the end of segregation in public
accommodations and decline of gross employment discrimination against
women and minorities that followed passage of landmark civil-rights
legislation would have been mere coincidence. Libertarian arguments
against civil-rights laws are, in my view, unpersuasive and ahistorical, but they are not unprincipled.
There are, however,
no consistent, principled libertarian distinctions between "good"
anti-discrimination laws that protect racial or religious minorities and
women and "bad" laws that protect gay and transgendered people. If
civil-rights laws unconstitutionally restrict individual freedom to
discriminate, they restrict it regardless of the group they seek to
protect. If religious freedom includes a right to discriminate against
gay people, why, for example, doesn't it include a right to discriminate
against women? Why shouldn't an employer who deems it sinful or a
violation of some divine order for women to work outside the home or in
traditionally male jobs have the same First Amendment right to
discriminate as an employer who considers homosexuality a sin?