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.