Hit & Run

Gary Johnson Supports Private Anti-Discrimination Laws Protecting Gays

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Below, watch 2012 Libertarian Party candidate Gary Johnson interviewed briefly by Jeff4Justice, a gentleman who lives in his SUV, interviews celebrities and politicians alike, and advocates both about gay issues and for third-party candidate inclusion in elections:

If for whatever reason you are unable to watch, Jeff mentions Johnson's support for gay marriage equality (seemingly unaware this support is not new to libertarians), then pivots to discussion of anti-discrimination laws. Jeff's concern is that gays and lesbians may be resistant to voting for Libertarian Party candidates if they don't support antidiscrimination laws.

Johnson responds that he doesn't believe there should be workplace discrimination against gays, referencing racial segregation and civil rights laws from the 1960s. Jeff specifically asks if there should be laws preventing employers and businesses from discriminating against gay workers or customers. Johnson says the discrimination should be legally prohibited: "There has to be an awareness, and there has to be consequences to discrimination. And there should not be discrimination. This is America."

Unpacking this as a gay libertarian: The first and most obvious observation is that Johnson, like many people who make this comparison, ignores the fact that segregation wasn't entirely voluntary. Much of it was mandated by government. Segregation was law. This is not to downplay that there were certainly many businesses and powerful forces in the private sector that supported, wanted, encouraged, fought to maintain segregation, and instituted it well beyond what the laws demanded. The laws wouldn't have existed if rich and powerful white people didn't want it in the first place. But it's important to note that segregation laws restricted freedom of association by prohibiting it.

The refusal of states to recognize same-sex marriage is again a government-ordered mandate. It has nothing to do with whether individuals or churches or businesses acknowledge the legitimacy of gay marriage. No business serving wedding needs has been forbidden from providing goods and services for gay couples, regardless of whether the state recognizes the marriage. But making private businesses provide these services by government order restricts the right of freedom of association by demanding it.

Many, many private businesses have chosen to serve gay couples. A small number have not. Before calling for more government intervention, the first step for any libertarian should be to examine what other options are available. I hate the concept of ranking victimization, but the level of private discrimination against engaged gay couples absolutely pales to the culture created by racial segregation. Being denied a wedding cake by one shop out of several choices is not the same as being shut out of entire neighborhoods and centers of commerce. There are many private solutions to the issue of gay couples being denied services, and businesses who engage in discrimination get significant negative attention and publicity. In fact, the relatively small number of cases of consumer discrimination shows how much has society changed primarily from cultural evolution. Undoubtedly a gay couple looking for a bakery to make them a wedding cake in the 1990s would have faced many more rejections.

Restrictions on liberty to achieve certain public policy goals frequently result in unintended consequences and need to be carefully thought out, no matter how well-meaning. Most people consider it uncontroversial that we've placed restrictions of freedom of speech so that libelous and slanderous comments are not protected. These are manifestations of speech that have the potential to cause harm to others or deprive them of their rights. Nevertheless, people and businesses regularly attempt to use the law to silence opinions and criticisms that they don't like or make them look bad, falsely claiming libel or slander. People have to pay lawyers to defend themselves and their right to speak out. Every restriction of liberty comes with a trade-off that can prove problematic. We have to have more than the indignity of being rejected by a baker of photographer in order to justify legally forcing these businesses to give up their freedom of association.

For more, read my primer on libertarians, gay marriage, and freedom of association here.