Gay marriage rights are considered a big win among libertarians, but there are thorny issues on the horizon as LGBT activists contest certain liberties of other groups. Last month’s landmark Supreme Court decision in Obergefell v. Hodges established that same-sex marriage is protected by the 14th Amendment to the Constitution. Unfortunately, the established rights of different groups are sometimes in conflict; recognition of one individual right under the Constitution does not invalidate the established rights of others. Rather, these rights exist pari-passu unless some intractable conflict exists. Any challenge to a right of one party by another must be resolved based upon whether the courts find a compelling reason, under the circumstances of the case, to favor one right over another. Depending on the details, the result may establish a narrow or a broad precedent.
Last week, Reason carried a good discussion of several areas of possible conflict between the positions of certain LGBT activists and the libertarian view: “Is This Where Libertarians and the Gay Community Part Ways?“, by Scott Shackford, covered each of the general issues listed below, which I’ll attempt to summarize. The libertarian resolution to most of these issues is dependent upon whether the challenge is against a government entity or a private party. This dichotomy follows from a constitutional philosophy under which the powers of government are strictly enumerated and the presumed rights of private individuals are broad and unenumerated. Many libertarians, Shackford included, believe that conflicts are often easily resolved when all alternatives for both parties are considered. For that reason, simply allowing private social arrangements to evolve is superior to intrusion by government aimed at righting perceived wrongs.
Employment Nondiscrimination: Shackford is skeptical that congressional passage of the long-debated federal Employment Non-Discrimination Act (ENDA) would accomplish much because there has already been such a significant shift in the cultural acceptance of homosexuality. Nevertheless, he is supportive of laws prohibiting anti-gay discrimination by government employers.
The ENDA would grant gay and transgender individuals the same status as other protected classes under federal law. With certain exceptions, it would require private employers to offer employment and benefits to LGBTs and same-sex married couples on the same basis as heterosexuals. This is meaningless unless gay individuals self-identify on job applications. It would also require that employers collect data on sexual preference and transgender status, which is costly, likely to be somewhat unreliable and disturbingly intrusive. But the most vexing aspect of federal law prohibiting discrimination by private employers against LGBTs is the potential conflict with the employer’s religious convictions.
The ENDA exempts religious organizations. The real challenge is balancing the rights of homosexuals with those of private employers having deeply-held religious beliefs opposing homosexuality. Should the rights of gays take precedence over the religious rights of private employers? There should certainly be no presumption that gays are dependent upon religious private employers for work. And there should be no presumption of “hate” on the part of a religious employer who does not wish to offer any pecuniary support to homosexuals. Thus, it is difficult to argue that the employment rights of gays trump the religious rights of private employers, and because alternatives exist for gays, many libertarians see this as a simple issue of live and let live.
Religious Freedom Exemptions: This is about the asserted freedom to decide not to do business with LGBTs based on religious convictions. Examples are the Muslim baker and the Christian photographer who do not wish to take business related to same-sex weddings. As I noted in “Suit Me or Face a Lawsuit: Adventures in Litigation Land“, compulsion to practice an art or to engage in any act of expression against one’s religious convictions is not acceptable from a libertarian perspective. That does not justify discrimination in a business’s public accommodations, however, where the doors of the business are open for purchases by the general public. The public at large, protected groups and otherwise, should have the freedom to transact there.
Shackford makes some good points in this section, including a rebuttal of the argument that to be engaged in “doing business” somehow disqualifies an individual from refusing an order based on religion:
“This argument flips the idea of civil liberties completely on its head and attributes the source of our rights to the government, a contradiction of the spirit of our own Constitution.“
Transgender Recognition: Most libertarians believe that individuals should have the right to identify publicly as the gender with which they identify privately:
“Fundamental to liberty is the right to personal identity and expression. This includes gender. Transgender citizens have the same right as everybody else to live their lives as they please without unnecessary government interference.“
Shackford again draws the crucial distinction between government and private sector accommodation for the needs of transgender individuals:
“In the private sector, it’s all a matter of cultural negotiation and voluntary agreements. The law should not be used to mandate private recognition of transgender needs, whether it’s requiring insurance companies cover gender reassignment surgeries or requiring private businesses to accommodate their bathroom choices. The reverse is also true: It would be inappropriate for the government to forbid insurance coverage or to require private businesses to police their own bathrooms to keep transgender folks out.“
Adoption: Shackford notes that gay couples can now adopt children in any state, including a partner’s child. But conflicts arise involving religious adoption agencies that are unwilling to work with homosexuals wishing to adopt. Activists would like to stop the flow of public funds to these institutions, but that position is indefensible on several grounds: adoption is foremost about helping children, and it is counter-productive to undermine an agency with a track record of positive performance. There are secular alternatives for adoption as well. Second, placing children in homes undoubtedly provides benefits to taxpayers that exceed the funds supporting these agencies. Finally, the activist position is indefensible as an attack on religious liberty.
Bullying in Schools: Cultural acceptance of gays or any other difference might not extend readily to the schoolyard. Bullying should always be dealt with firmly, but new legal protections for gays should not give way to policies that may be excessively harsh:
“… whatever is done to try to curtail bullying needs to be managed with the understanding that we are dealing with children on both sides of the issue….
The libertarian concern here is, just as with the other issues, using the state or the law to punish people—in this case, children—when there are better social tools for this battle… before considering new policies or laws with the intention of fighting bullying, activists need to remind themselves that public schools now have … oppressive disciplinary policies that they use to discard students at the first sign of trouble. The last thing we need is more ‘zero tolerance’ policies. As it stands, we have children and teenagers being arrested by police for common school misconduct and their families forced to deal with costly and time-wasting court systems. It is an absurd outcome that actually threatens children’s futures.“
Shackford closes with a few thoughts about the usefulness of school choice for helping parents find the most hospitable school environment for their children.
Libertarians have been consistent supporters of gay marriage rights, nondiscrimination by public institutions and in the public accommodations of private businesses. However, libertarians are unlikely to support LGBT activists in attempts to curtail religious liberties. This includes the liberty to run a business in a manner consistent with one’s religious beliefs, whether or not that conflicts with the ideals of the LGBT community. Conflicting rights must be balanced in a way that is most neutral and least harmful. Libertarians generally believe that there is no remedy for a violation of religious rights. When the religious rights of private business owners are protected with respect to their non-public accommodations, any imposition this might inflict on other parties is usually mitigated by the existence of willing competitors. Alas, there is no right to a life free of insults, unintended or otherwise.