When then-candidate, now-Sen. Rand Paul (R-Ken.) got into hot water over his later-walked-back comments about the 1964 Civil Rights Act last year, there was some interesting intra-libertarian discussion about whether federal laws against private discrimination are still necessary, about whether they're legitimate government interventions, and, if they are legitimate, about whether the Commerce Clause was the appropriate way of implementing them. (My own view: They were necessary in the segregation era (in part because of the effects of state enforcement of unconstitutional segregation laws), probably aren't necessary any more, but should have been implemented by other means—like the 13th Amendment—to avoid eviscerating the Commerce Clause in the process.)
Outside of libertarian circles, there was much mocking and derision about how this could even be up for debate, complete with references to free market fairy dust and scornful ridicule of the idea that market forces could sufficiently deter businesses from engaging in bigotry.
It's just one example, but here in Nashville, that magical free market fairy dust has in fact overturned a discriminatory policy, and in a place many people would probably find unlikely.
It all began last month, when the private Christian college Belmont University fired women's soccer coach Lisa Howe shortly after Howe revealed to her players that she and her same-sex partner were expecting a child. Belmont has maintained that Howe was not fired for her orientation, and resigned on her own. But no one in town really believes that. Howe's players say she told them she was pressured to resign because of her orientation.
Belmont is a very conservative school. All faculty members are required to sign a declaration of faith before they're hired. Until 2007, the school was officially affiliated with the Tennessee Baptist Convention. And as a private institution, Belmont was well within its legal rights to fire Howe. Tennessee's anti-discrimination law does not include sexual-orientation, but even if it did, such regulations often include exemptions for religious institutions.
But that doesn't mean Belmont is immune from criticism and pressure from outside the government. And in the following weeks, a curious thing happened. Belmont students held protests in support of Howe. Faculty members spoke out on her behalf. The Faculty Senate passed a resolution in support of the school's gay employees, and demanded that school administrators sponsor an open discussion about Belmont's discrimination policy. Belmont benefactor, trustee, and Nashville music baron Mike Curb threatened to withhold his financial support for the school, and wrote a public letter praising the faculty for speaking out on what he called a "basic civil rights issue." (Interestingly, Curb was the Republican Lieutenant Governor of California from 1978-1982. He is also a partner in the gospel music company World Label Group.)
The payoff: Belmont trustees announced just today that they are adding sexual orientation to their non-discrimination policy.
Again, this is just one example. But it's a pretty compelling one. This conservative, Christian school in the buckle of the Bible Belt was convinced by private actors to explicitly protect homosexuals from discrimination in hiring, promotion, and firing decisions. And all without the threat of force stemming from a law or regulation.*
(*The Nashville City Council is considering a bill that would bar companies that have contracts with the city from discriminating on the basis of sexual preference. I don't find these sorts of bills particularly objectionable. There are gay people in Nashville. There's nothing wrong with the city refusing to give its business to companies that discriminate against some of its residents. But as a private school, it seems unlikely that the bill would have significantly affected Belmont.)