Gay Marriage

Why Is Banning Private Anti-Gay Discrimination Less Controversial Than Insisting on Equal Treatment by the Government?

|

Damon Root's post about the Defense of Marriage Act's legal troubles in California highlights a puzzling aspect of the debate about gay rights. He notes that the Supreme Court, which may soon decide whether states are constitutionally required to treat gay and straight couples equally, already has said that states may not prevent local governments from adopting bans on private discrimination against gay people. In the 1996 case Romer v. Evans, the Court overturned a voter-approved amendment to the Colorado constitution that prohibited such anti-discrimination laws at the state or local level. In a majority opinion by Justice Anthony Kennedy, the Court reasoned that because the amendment "seems inexplicable by anything but animus toward the class that it affects," it "lacks a rational relationship to legitimate state interests," meaning it failed even the highly deferential "rational basis" test used in equal protection cases that do not involve a fundamental right or a "suspect class" such as race. Although the Court did not quite say that states must ban private discrimination against gay people, it did say they cannot preclude such legislation. But 16 years later, with Kennedy still the swing vote, it is entirely possible the Court, confronted by the equal protection challenge to California's Proposition 8, will allow states themselves to continue discriminating against gay people when it comes to recognizing marriages.

This combination of positions is not at all unusual. Mitt Romney, who promised during his unsuccessful 1994 run for the U.S. Senate to be more gay-friendly than Ted Kennedy, supports banning anti-gay employment discrimination. In other words, if a nosy fundamentalist with a dry cleaning store refuses to hire anyone he considers a sinner, including non-celibate homosexuals, Romney says he must be forced to act against his own deeply held religious beliefs. Yet if a gay couple applies to the government for a marriage license, Romney insists that they should be turned away, going so far as to endorse a constitutional amendment that would prevent any state from taking a more evenhanded approach. Polling data likewise show that Americans are much more willing to compel nondiscriminatory treatment of gay people by employers and landlords than to insist that the government stop discriminating based on sexual orientation. In a 2008 Newsweek survey, 87 percent of respondents supported "equal rights for gays and lesbians in terms of job opportunities," and 82 percent endorsed "equal rights for gays and lesbians in terms of housing." Yet only 39 percent favored "legally sanctioned gay and lesbian marriages."

These opinions seem completely backward to me. Contrary to what Kennedy said in Romer, anti-gay bigotry is not the only reason why people might think that individuals should be free to discriminate based on sexual orientation. Bans on private discrimination impinge on religious liberty, property rights, freedom of contract, freedom of association, and freedom of speech—rights we should not sacrifice simply because we disapprove of the way some people exercise them. By contrast, government discrimination based on sexual orientation should not be tolerated, because the government has an obligation to treat all citizens equally under the law. Why are people more willing to accept bans on private discrimination, which violate liberty, than a ban on government discrimination, which would enhance liberty? Probably because they conflate civil marriage, the legal arrangement recognized by the government, with "the sacred institution of marriage" upheld by religious tradition. Opponents of gay marriage fear they and their religious communities will be compelled to accept homosexual unions that are anathema to them. But this is all the more reason to insist on the freedom of individuals and private organizations to discriminate while demanding neutrality from the government. 

I discussed the crucial difference between private and public discrimination against homosexuals in a 2009 column.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

12 responses to “Why Is Banning Private Anti-Gay Discrimination Less Controversial Than Insisting on Equal Treatment by the Government?

  1. Great article. But I think one of the biggest reasons people object to gay marriage is that they view it as a back door way to ban private discrimination. So the two issues are linked. Once there is state sanctioned gay marriage, the private party is then left with the prospect of not recognizing anyone’s marriage or recognizing gay marriage.

    1. Here in Maine a few years ago an amendment to the state constitution was put forth to add sexual orientation to the list of protected classes regarding discrimination.
      Proponents mocked and derided their opponents who said it was a back door to same sex marriage.
      The second that it passed the proponents started campaigning for same sex marriage (which ended up going to the ballot and failing).
      These people are liars.

      1. It would be a back door if they used the fact that sexual orientation is on the list of protected classes as a justification to impose gay marriage through the courts. But they didn’t. They proposed a referendum. It’s as front door approach as it comes.

        Your animus towards gays, sarcasmic, clouds your judgement.

        1. They didn’t propose a referendum. They passed a law in the legislature using the amendment as justification.
          The people, pissed that they took this back door approach, passed a referendum repealing the law that the legislature passed in the last days of its session.

          Your animus towards gays, sarcasmic, clouds your judgement.

          Ad hominem arguments are fallacious.

          1. They didn’t propose a referendum. They passed a law in the legislature using the amendment as justification.

            Lobbying your legislature to pass laws, and having laws passed by elected legislators is not a back door either. That’s how almost all laws are passed in almost all states.

            Are the only laws you find acceptable the ones passed by referendum?

            Your ‘outrage’ is ridiculous to me and does seem to indicate IMHO an animus towards homosexuals and gay rights activists.

          2. Well, I mean they’re going to always take the back door approach, if you know what I mean, and I think that you do.

    2. “the two issues are linked”

      Reason seems to have a little trouble recognizing this, but, yes, they’re linked in the sense that the Siamese Twins are linked.

      Jacob Sullum: “Contrary to what Kennedy said in Romer, anti-gay bigotry is not the only reason why people might think that individuals should be free to discriminate based on sexual orientation.”

      True, but once you admit that, you may have to admit that bigotry isn’t the only reason someone might support the 1 man/1 woman definition of marriage.

      But if gayness is absolutely the same as race and nobody but a bigot could possibly think differently, then you not only have to have gay marriage, you have to have bans on private discrimination, too. Since not even Rand Paul thinks it’s feasible to repeal the laws against private race discrimination.

      So for Sullum to sustain his position, he’ll have to face the “derp what about interracial marriage and Jim Crow derp” style of argument.

      1. But if gayness is absolutely the same as race and nobody but a bigot could possibly think differently, then you not only have to have gay marriage, you have to have bans on private discrimination, too.

        You do not “have to have” them.

  2. Well said! The legal system needs to treat all peoples’ rights equally, but the market, private organizations and individual shouldn’t be forced to. The latter is completely complementary to the former. Either everybody deserves freedom to associate (and thus disassociate) and freedom of speech (even if offensive to some), or nobody does.

  3. Bans on private discrimination impinge on religious liberty, property rights, freedom of contract, freedom of association, and freedom of speech?rights we should not sacrifice simply because we disapprove of the way some people exercise them. By contrast, government discrimination based on sexual orientation should not be tolerated, because the government has an obligation to treat all citizens equally under the law.

    This is the best part of the article.

    I would add, too, that public discrimination is particularly odious because no one can escape the taxes used to fund such discrimination, even those who are the subject of that discrimination.

    1. How do taxes fund the discrimination? Doesn’t seem to have any monetary cost.

      It is hard to see why certain people would have the combination of opinions brought out by Jacob, although I have an idea: People do have some sense (possibly like that of the commenter above) that there is some abstract cost borne by the people at large when gov’t has to deal with certain people in certain ways, but they don’t mind imposing costs on a class such as that of employers or landlords that they don’t belong to.

      Anyway, redefining marriage does have an effect on private discrimination, since it would force certain parties to treat couples as married that the party does not think of as married.

  4. institution of marriage” upheld by religious tradition. Opponents of gay marriage fear they and their religious http://www.ceinturesfr.com/cei…..-c-13.html communities will be compelled to accept homosexual unions that are anathema to them. But this is all the more reason to insist on the freedom of individuals and private organiz

Please to post comments

Comments are closed.