Explaining the libertarian position on antidiscrimination laws

|The Volokh Conspiracy |

With the recent and continuing hulabaloo over conflicts between antidiscrimination laws and freedom of religion, the charge inevitably arises that anyone who is opposed to, or even skeptical of, antidiscrimination laws that apply to private parties-which means most people who identify themselves as libertarians-is effectively not pro-liberty, but pro-discrimination. I therefore thought it was a good time to reprint my rebuttal of that argument from Cato Unbound, published in 2010, below.

The most serious charge has been that libertarian skepticism of antidiscrimination laws that apply to private entities reflects, at best, insensitivity to race discrimination. One blogger, reflecting a significant swath of progressive sentiment, argued that no matter how committed to racial egalitarianism any individual libertarian claims to be, "Libertarianism is a racist philosophy. Libertarians are racists."

This is a rather odd criticism. For both philosophical and utilitarian reasons, libertarians are presumptively strongly opposed to any government regulation of the private sector. It naturally follows that libertarians presumptively oppose restrictions on private sector discrimination. It's hardly an indication of racial animus, or even insensitivity, for libertarians to enunciate the exact same position on antidiscrimination laws that they take in all other contexts.

The progressive libel of libertarians as racial troglodytes for their consistent defense of private-sector autonomy is ironic, given that similar illogic has so frequently been used against modern liberals. When liberals defended Communists' free speech and employment rights in the 1950s, their critics accused them of being Communist sympathizers, if not outright Communists. More recently, progressives have been accused of being American-hating jihadist sympathizers when they stood up for the rights of terrorism suspects. Critics have even charged civil libertarians with abetting racism for opposing hate speech laws.

The hate speech example is particularly telling. Some progressives argue that if libertarians were more sensitive to the concerns of minorities, they would sacrifice their anti-statist principles to the goddess of antidiscrimination. If so, progressives should similarly sacrifice their support for freedom of speech.

Confronted with the hate speech analogy, progressives will typically reply that supporting freedom of speech is completely different from supporting the right to engage in discriminatory action. After all, speech is just speech-sticks and stones, and whatnot-while discriminatory actions cause real distress to the victims. And besides, they argue, the marketplace of ideas can be trusted to ensure that egalitarian views will emerge victorious.

This argument does not stand up to close scrutiny. Hate speech can directly harm members of minority by causing psychological distress or inciting violence. And indirect harms from hate speech can be catastrophic if advocates of racist views are able to win control of the government. While minorities can generally find productive economic niches in even highly prejudiced but market-oriented societies, there is no safe haven for minorities if racist ideas dominate politics and lead to harsh discriminatory legislation.

Also, a free economic market protects minorities from discrimination to some degree because businesspeople have an economic incentive to hire the most productive workers and to obtain the most customers. By contrast, individual voters and political activists have no corresponding incentive to overlook or overcome their personal prejudices. Concern for the financial bottom line mitigates the temptation of economic entrepreneurs to discriminate; concern for the electoral bottom line, meanwhile, often leads politicians to stir up resentment against minorities.

As suggested above, supporters of antidiscrimination laws typically focus on laws banning racial discrimination. They do so because opposition to race discrimination has great historical and emotional resonance in a nation that had institutionalized racial oppression, including chattel slavery, for hundreds of years. However, federal antidiscrimination laws also apply to discrimination based on religion, sex, age, disability (including one's status as a recovering drug or alcohol addict), pregnancy, marital status, veteran status, and even military recruiters. State and local antidiscrimination laws cover everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang.

The proliferation of antidiscrimination laws explains why libertarians are loath to concede the principle that the government may ban private sector discrimination. There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who don't do well on standardized tests! Is a store charging more for an item than some people can afford? That is discrimination against the poor! Is an employer hiring only the best qualified candidates? That is discrimination against everyone else!

The obvious retort is that antidiscrimination laws should be limited to "real" discrimination. But there is no consensus as to what constitutes "real" discrimination, nor, not surprisingly, does there appear to be any principled definition that legislatures have followed.

One can, for example, define discrimination as treating the alike unequally, but antidiscrimination law does not always follow this definition. Federal antidiscrimination law, for example, requires employers not simply to treat disabled and non-disabled alike, but to make costly "reasonable accommodations" for the disabled. Employers have the same legal obligation to their religious employees.

In short, to concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government. Libertarians, however, are often willing to make certain exceptions to their opposition to antidiscrimination laws, so long as they can identify an appropriate limiting principle. [Examples follow]