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A Libertarian View of Gay Rights

by Theresa Fritz Camoriano

This past week, a federal court upheld Louisville’s gay rights ordinance against a doctor who claimed the ordinance would violate his freedom of religion by forcing him to hire a homosexual.  The case pitted non-discrimination law against freedom of religion, and religion lost.  It will be interesting to follow this case, which is likely to be appealed, but, meanwhile, we ought to consider not only what the court decides, but what the law should be if we really want to be respectful of the rights of all people.

The original “non-discrimination” laws arose as a backlash against slavery and Jim Crow laws, which, of course, were terrible violations of basic human rights.  Under slavery, people were deprived of the basic human right to own themselves.  Under Jim Crow laws, the government systematically discriminated against people based on their race.  For example, there were laws that prohibited blacks from marrying whites.  Laws often prohibited blacks from owning property or restricted their ability to use their property, thus restricting their ability to earn a living.  The law often permitted whites to breach contracts with blacks, giving the blacks no recourse against such breaches, and generally prevented blacks from taking advantage of the same protections of the law that were accorded to whites.  During the civil rights movement, the vast majority of people understandably found these Jim Crow laws to be inhumane and repulsive and wanted to take steps to undo their effects. 

This sensitivity of people to the terrible unfairness of discriminatory laws and to the suffering such laws caused was very commendable, and their intentions were noble.  However, in trying to make amends for these previous government-enforced discriminations against certain people, they made the mistake of establishing another government-enforced form of discrimination, which continues to haunt us today and which also arises in these newer “civil rights”, such as Louisville’s gay rights ordinance. If we are really going to eliminate government-enforced discrimination, we must finally establish a law that applies equally to all people and does not ask our race, color, sexual orientation or religion in order to determine how it applies to us.  Any law that continues to apply differently to different groups of people is inherently unjust.

If we go back to basics, our basic, original civil rights were the right to protect ourselves and our property against aggression.  These basic rights included the right to associate with anyone we chose and the right to buy and sell or otherwise offer to enter into voluntary business transactions with anyone we chose.  These basic human rights applied equally to all people and did not ask your race, religion or sexual orientation.  By defending each individuals’ life, liberty, and property, they protected every single person, including disfavored individuals.

These are the basic human rights that permitted various immigrant groups to survive in this country, despite the fact that these people were often despised by Americans who had settled here earlier.  Immigrants were able to buy land and survive by farming or to find ways to serve others that enabled them to support themselves despite the fact that others may have hated them.  By respecting people’s lives and property and respecting the freedom of people to associate with and conduct business with anyone they chose, the law provided protection even to those who were generally despised.  If we are going to enforce these basic human rights today, we will support a law that gives gays and everyone else the same rights to seek employment, to offer employment, to purchase property, and to lease property to anyone they choose, and to refuse to do those activities as well.

Unfortunately, the gay rights ordinance violates these basic rights that have served us so well, because it forces private employers to hire gays, and it forces private property owners to rent or sell to gays, thus violating the basic, non-discriminatory rights of freedom of association and freedom of contract.  While the intentions behind the ordinance may have been to prevent unfair discrimination, the real outcome is to establish a government-enforced discrimination, rejecting the very individual liberty that gays and everyone else need in order to live in accordance with their own beliefs, interests, and desires.  So, we have gone from laws that prohibited private individuals from entering into contracts with certain people to laws which require private individuals to enter into contracts with certain people – and both forms of government force against individual liberty are wrong. 

It simply should be none of the government’s business with whom private individuals choose to associate or do business. The law should not force the doctor to hire gays or anyone else, and it should not force gays or anyone else to hire the doctor.  The doctor should be free to offer employment to anyone he chooses, based on his religion or simply based on his personal preference.  If someone else prefers to hire only gays, or only blondes, or only left-handed, brown-eyed people of mixed German and Italian descent, he should be free to do so (although it may be very hard for him to find enough qualified employees to run his business on that basis!).  Just as the law should permit us to freely choose our friends and our mates, and should permit us to be very selective about whom we would hire to care for our children, the law also should leave consenting adults free to offer to conduct business or not offer to conduct business with anyone we choose.  Only in this way does the law respect every individual.

When governments and laws are prevented from discriminating, then private individuals will be free to conduct their businesses on a strictly voluntary basis.  If we allow governments to tell us whom we must hire or to whom we must rent,  then we are giving government the power to force us to discriminate according to its whims rather than permitting us to act in accordance with our individual beliefs and preferences.  Such power should not exist in a free society, where the law should respect the preferences of all individuals.

ADULT: A person who has stopped growing at both ends and is now growing in the middle.