Civil Rights

Federal Court Ruling Forbidding Antigay Job Discrimination Potentially a Very Big Deal

If the decision holds, it would essentially add LGBT protections to existing laws.

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Rainbow flag
Jeff Malet Photography/Newscom

Discrimination on the basis of sexual orientation counts as discrimination on the basis of sex and therefore is already prohibited under relevant federal laws. That's the meat of the ruling released late yesterday by the U.S. Court of Appeals for the 7th Circuit, which covers Indiana, Illinois, and Wisconsin.

The 8-3 ruling has huge political and legal consequences. The court specifically determined that Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex, also bars discrimination on the basis of sexual orientation. So now, suddenly, without passing any new laws, we have a new protected class under federal law.

Mind you, the court doesn't see this as a new federal class, or at least the majority doesn't. The case revolved around a woman suing Ivy Tech Community College in Indiana claiming that she had been discriminated against and denied teaching positions on the basis of her sexual orientation. Sexual orientation is notably not covered under Title VII and lower courts had tossed her case out for that reason. But the full court determined that even though sexual orientation does not have special separate protection under federal law, it is nevertheless covered under bans on sex discrimination.

One of the arguments the court found compelling was that if you changed the plaintiff's sex to male and changed nothing else about her life, the discrimination would not have happened. She would be a man married to a woman—a heterosexual—and would not have been denied employment because of her relationship. Therefore, discrimination on the basis of her sex is indicated, not just her orientation. Furthermore, the Supreme Court has previously established a precedent that discrimination on the basis of whether a person conforms (or not) to a gender stereotype counts as sex discrimination. That precedent is also brought to bear in this case (and has been invoked in other cases of discrimination on the basis of sexual orientation and gender identity as well):

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel describes the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively's claim is no different from the claims brought by women who were rejected for jobs from traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).

The majority ruling is fundamentally focused on the idea that court decisions over time have filled out the concept of what certain types of discrimination mean in real practice beyond just the basic terms of "sex" or "race" or any other protected characteristic. Discriminating against a woman because she's pregnant counts as sex discrimination. Discriminating against a person for being in an interracial marriage counts as discrimination on the basis of race. Therefore, their logic is that discriminating against a person for being a relationship with somebody of the same sex is discrimination on the basis of sex.

Such a ruling may also then bring into play a lively debate over the limits of who much leeway judges should have to determine the boundaries of a law and how much they should be bound to the original intent of the law's creators. That's a diplomatic way of saying that there's going to be a lot of discussion about "activist judges" in response to this case.

The three dissenting judges were very concerned at the consequences of the judiciary making the decision to massively expand the limits of what the classifications of the law covered:

The result is a statutory amendment courtesy of unelected judges. Judge Posner [who wrote a concurring opinion] admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.

If this court decision ultimately withstands Supreme Court scrutiny (assuming it or a similar case makes it there—but I think that's a safe assumption), it would have the impact of rendering a huge amount of remaining gay political activism moot. The argument can also apply (and has been used in courts) to cover discrimination on the basis of gender identity, which would then have federal civil rights laws protecting transgender citizens as well.

There are multiple ways of both defending and critiquing this decision from a libertarian perspective. When elimination of laws and regulations are not on the table—and they're not here—the appropriate alternative is for them to all apply equally. That's been the libertarian argument for same-sex legal recognition. If the government is going to regulate marriages it shouldn't be discriminating on the basis of sex of the participants (and arguably the number of consenting adults who want to participate).

On the other hand, this is also a situation where the decision increases the opportunity for the government to use the law, its authority, and its monopoly of force in order to punish private citizens, and that should always be a reason for concern. Much of my resistance to the expanse of public accommodation laws and my defense for the right of religious shop owners to decline to provide their services to same-sex weddings is based not on some sort of perverse pleasure at seeing gay customers get rejected. Rather, I think the use of government power to punish people for their actions when it's absolutely unnecessary to do so presents a much greater threat for harm than such low-level and relatively uncommon discrimination.

Discrimination in employment and housing is a little different, though, and there are going to be those who feel it's fundamentally different to punish a baker for not making a wedding cake versus punishing a college refusing to employ a gay person. But if that's how the citizenry feel, maybe federal law should actually spell it out.

Read the full decision here. The ruling is now competing for attention with the shocking, shocking news today that Barry Manilow is gay.

NEXT: School Forbids Teen from Bringing Grandma to Prom: Too Dangerous

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  1. Your personal Lobster Girl is an elderly leprechaun carrying a flag, Shackleton?

    1. Well, it is a gay libertarian leprechaun.

      1. Leprechauns are all hermaphrodites, though. Or wait, maybe i’m thinking of libertarians.

        1. Libertarians are all hermaphrodites, eh?

          Well, this particular one has always identified more with Hephastus and Athena among the pantheon of ancient Greek deities. So I guess that makes me a hephasthena.

        2. The correct term is probably Intersexed. It really depends on the etiology of leprechauns. As a Brit, this is not a personal area of expertise.

          1. As a Brit, this is not a personal area of expertise.

            Yes, you guys have slaughtered all your leprechauns centuries ago. You can find leprechaun recipes in old British cookbooks.

            1. As an Irishman, I’m free to disseminate on the sexual make up of leprechauns.

              Astonishingly, even though there are both male and female forms, the genitalia of said creatures has led to much discussion. The only leprechaun ever captured (the famous Mayo-chaun) was male, seeing as they’re notoriously difficult to catch, and only ever approach humans when they are in possession of sugary American breakfast cereals. The Mayo-chaun was dissected and found to be without genitalia of the male or female persuasion.

              Naturally, this has led to intense debate in Trinity College, world’s foremost researcher on leprechauns and leprechaun related sciences. The enduring mystery of how they procreate without genitals, and the reasons why both males and females exist in lieu of an evolutionary need has been the basis of countless studies, at an estimated cost of 1 billion euro to the taxpayer from 1993-2014 (inclusive)

              Fun fact: The lack of sexual dimorphism between males and females lead many to speculate that they are monogamous, though this has been disputed by another group who say that it does exist, we just don’t see it because they’re “very small. Tiny, in fact”

            2. As an Irishman, I’m free to disseminate on the sexual make up of leprechauns.

              Astonishingly, even though there are both male and female forms, the genitalia of said creatures has led to much discussion. The only leprechaun ever captured (the famous Mayo-chaun) was male, seeing as they’re notoriously difficult to catch, and only ever approach humans when they are in possession of sugary American breakfast cereals. The Mayo-chaun was dissected and found to be without genitalia of the male or female persuasion.

              Naturally, this has led to intense debate in Trinity College, world’s foremost researcher on leprechauns and leprechaun related sciences. The enduring mystery of how they procreate without genitals, and the reasons why both males and females exist in lieu of an evolutionary need has been the basis of countless studies, at an estimated cost of 1 billion euro to the taxpayer from 1993-2014 (inclusive)

              Fun fact: The lack of sexual dimorphism between males and females lead many to speculate that they are monogamous, though this has been disputed by another group who say that it does exist, we just don’t see it because they’re “very small. Tiny, in fact”

            3. As an Irishman, I’m free to disseminate on the sexual make up of leprechauns.

              Astonishingly, even though there are both male and female forms, the genitalia of said creatures has led to much discussion. The only leprechaun ever captured (the famous Mayo-chaun) was male, seeing as they’re notoriously difficult to catch, and only ever approach humans when they are in possession of sugary American breakfast cereals. The Mayo-chaun was dissected and found to be without genitalia of the male or female persuasion.

              Naturally, this has led to intense debate in Trinity College, world’s foremost researcher on leprechauns and leprechaun related sciences. The enduring mystery of how they procreate without genitals, and the reasons why both males and females exist in lieu of an evolutionary need has been the basis of countless studies, at an estimated cost of 1 billion euro to the taxpayer from 1993-2014 (inclusive)

    2. Who doesn’t have a fetish for geriatric Irishman?

      1. Not a one of these little fellows ,evidently.

          1. How have you been?

            Less importantly: what do consider his best?

            If I was a betting individual, I might wager that you did not know that today was

            I must away soon and if I miss your responses today, I’ll return some other time.

            1. Less importantly: what do consider his best?

              Zardoz.

              1. It is known.

      2. I’m quite okay not fetishising my dad. You feel free though, it’s your right as a ‘Merican

  2. But the question remains: is there any evidence of significant discrimination of any minority group in 2017 to make these protections necessary? The people who love these extra discrimination laws the most are the lawyers who find every disgruntled employee they can and get them to file discrimination lawsuits.

    1. “get them to file discrimination lawsuits.”

      The horror, the horror.

      1. The risk of lawsuits, even ones one is sure to win, costs money, driving down wages and up prices. So yes, the horror.

        1. Down with lawsuits! You’re breaking new ground for libertarianism.

          1. It’s just “down with hiring gays”- I’m pretty sure Mgmt will send a memo saying, “It’s not worth the financial risk to the company…”

  3. Say it ain’t so, Barry!

    1. If I remember correctly, Barry was a Ron Paul supporter.

        1. If I remember correctly, Barry was a Ron Paul supporter.

          Yet I heard from numerous sources at the time in question that Ron Paul was a white supremacist who hated homosexuals. And non-whites. And women’s choices and therefore all women. And non-whites. And the needy – all of them. And non-whites. And he hated you and me and also the cute puppies (especially if they weren’t of a particular color, and I believe you know which color I am typing with regards to).

          Also, How have you been Chipper? I have not been visiting for quite a while.

          1. I’ve been good. It’s nice to have the comments in semi-operational mode again. Always great to hear from you, Charles. You are a gentleman and a scholar.

            1. I am glad to read that you have been doing well, Chipper. Thank you for the kind words. I hope to visit more frequently. For now I must away. May your wood chipper, which is only used for the chipping of tree branches, tree limbs (and no other kind of limbs), and similar plant life always remain as sharp as your intellect.

              Charles

    2. As if anyone needed him to “come out” to know he was gay…

      Jus sayin…

    3. As if anyone needed him to “come out” to know he was gay…

  4. So I take it this particular college instructor was discriminated against because she was straight, right? We are talking about colleges, after all.

    Had she — or xe — been a transgender gay Muslim black wimmon, and vocal about defending free speech so long as it’s CORRECT speech, xe would have been a shoe-in for a tenured post.

    1. Please, let’s be clear. She was a *wannabe* instructor and it was ITT Tech. It’s entirely plausible that this wannabe instructor is 5′ 4″, 165 lbs. with forearms like Popeye and can torque down lug nuts with her bare hands.

      1. OK, she was actually a math instructor and wasn’t being promoted. The rest of my post stands.

        1. I double-checked, it was Ivy Tech, not ITT, but either way, it may have a slightly different ethos than today’s four-year SJW training academy, so point taken.

        2. I double-checked, it was Ivy Tech, not ITT, but either way, it may have a slightly different ethos than today’s four-year SJW training academy, so point taken.

  5. *Sigh* I wrote a longer comment but the squirrels seem to have eaten it. Long story short: protections against pregnancy discrimination are the result of legislation amending the Civil Rights Act of 1964, not a court ruling. (On the theory that including a link is causing the problem, I’ll just say Google “Pregnancy Discrimination Act” rather than linking to the Wikipedia entry.)

    1. Always copy any long post before submitting.

  6. *Sigh* I wrote a longer comment but the squirrels seem to have eaten it. Long story short: protections against pregnancy discrimination are the result of legislation amending the Civil Rights Act of 1964, not a court ruling. (On the theory that including a link is causing the problem, I’ll just say Google “Pregnancy Discrimination Act” rather than linking to the Wikipedia entry.)

  7. So now, suddenly, without passing any new laws, we have a new protected class under federal law.

    I guess we could just try to get everyone added and then I’d be ok with it.

    Fat, middle-aged balding white guys need protections too.

    1. Fat middle-aged balding white guys should definitely not be subject to any discrimination by government entities or publicly funded entities.

      The solution is to add everyone to the bucket of people that cannot be discriminated against by the government, and subtract everyone from the bucket of people who cannot be discriminated against by private entities.

      1. But until they explicitly call us out, I don’t feel protected.

      2. The solution is to add everyone to the bucket of people that cannot be discriminated against by the government, and subtract everyone from the bucket of people who cannot be discriminated against by private entities.

        Assuming this is cached in [fycs][/fycs] tags, agreed.

        Otherwise, we’re putting a government that can’t competently or rationally manage one list without getting all infringy in charge of managing two.

        1. hint: the 1st list is everybody, the 2nd list is nobody

          Thanks for playing.

          1. Thanks for playing.

            Without the government to tell us who can and cannot be discriminated against and why, how will we know? The two lists have always existed.

            What’s the overlap between the cannot be discriminated against by the government list, can be discriminated against by private entities list and the No Fly list? Stop and frisk? Or will these two lists end up just like the one list we already have that says black people are equals under the law and compels us to spend lots of money to not make them equal?

            Wait a minute, I don’t actually care about the number of lists and/or who’s on which. Fuck you

            cut spending.

      3. Government? This is a private tech college.

        1. Ivy Tech is public.

          Ivy Tech Community College is a public institution in Indianapolis, Indiana. Its campus is located in a city, with a total enrollment of 98,778. The school utilizes a semester-based academic calendar. The student-faculty ratio is 20-to-1.

          1. We’re consistently getting ITT Tech and Ivy Tech confused. I grew up in the area. Everyone does it. The confusion only gets worse with alcohol.

          2. Still to what he was saying; at some point, between big illustrious public institutions of education, big illustrious private institutions of education, small private institutions, and small public institutions, we’re going to triangulate on a point or locate a line precisely where the government should fuck off. It would be nice if some libertarians were willing to die on that point or line, or even show up, but we’ll see.

      4. “The solution is to add everyone to the bucket of people that cannot be discriminated against by the government, and subtract everyone from the bucket of people who cannot be discriminated against by private entities.”

        You cant talk crazy talk like that here. This is Reason not some bastion of libertarianism. Here we are supposed to only offer thin gruel like “but if that’s how the citizenry feel, maybe federal law should actually spell it out.”

    2. To save time and take the strain off the courts, the government should just start demanding employers provide sufficient explanation for refusing to hire, refusing to promote, reassigning, or firing someone. If they can’t provide a compelling reason to the local Office of Regulating Employment, they have to accept/promote that person.

      1. Sarcasm aside, this is really where this should end up. The feds see every hire and fire on a case-by-case basis.

        1. The feds see every hire and fire for a public position on a case-by-case basis.

          Privately, it should not fucking matter so long as no other crime was committed. Civilly, reasons for firing might mitigate penalties incurred because of the firing.

      2. I prefer “Office of Gov’t Regulating Eimpoyment”– aka “OGRE”.

    3. You can’t discriminate against white dudes for being white or dudes.

      1. Yes you can. In fact, affirmative action requires it.

        1. No it doesn’t.

          1. So, if you have an affirmative action mandate, and lets say it requires 5 from group A and 5 from group B, but there are only 3 qualified people from group A and 7 from group B, you must take 5 from A and 5 from B. So the policy requires you to discriminate against group B (in this case).

            And as the variability of bell curves would apply even if there were no distinguishable differences between groups, it would happen quite often regardless.

          2. You are absolutely and completely wrong, Tony.

            You could not be more wrong if you said that the moon was made entirely of green cheese, Tony.

            1. Now you are discriminating against the green cheese movement. It is just a different life style.

          3. Yes, it does. You can’t discriminate in favor of one group without discriminating against st other groups. Otherwise we’d just call Jim Crow affirmative action for white people.

    4. They got Trump…fat lot of good it will do them

  8. Libertarians for more protected classes!

    Wait…that’s not how this works…that’s not how any of this is supposed to work

    1. Free association is only ok when the government approves.

  9. The big problem is the re-interpretation of words to mean whatever you want them to mean. “Sex” and “gender” and “sexual orientation” do not all mean the same thing and they don’t mean whatever you feel like making them mean. There’s a process for changing the law and it’s supposed to be clear to everyone what the law is and what it means. You start screwing with that and the idea that the law is something solid and reliable to base your decisions upon goes right out the window. Sure, that’s the law today and in this area but who knows what the law will be tomorrow or in the next town over?

    If I show up for work tomorrow dressed in a gown and a tiara and claiming to be the Queen of Romania, is my getting into trouble sex discrimination based on the idea that if I just showed up for work in my regular man clothes and claiming to be my regular man self I wouldn’t be in trouble? What if I get into trouble for sticking my dick in the jelly donuts in the breakroom? Ain’t no woman gonna get into trouble for sticking her dick in the jelly donuts, is she? Sex discrimination!

    1. Words have always meant whatever those doing the ruling have needed them to mean in order to dictate the outcome they wished to dictate.

    2. so you’re saying women DONT have the right to stick their dick in jelly donuts at work, you cishetroshitlord?

    3. They don’t mean the same thing, but don’t you get the logic of the decision? That if discrimination by sex means treating people differently because of their sex, and if in this case a difference in sex made a difference to how the parties acted, then acting that way is discrimination by sex.

    4. “The big problem is the re-interpretation of words to mean whatever you want them to mean. ”

      Says the guy fantasizing about cross-dressing and sticking his penis into the lunchroom doughnuts.

    5. Figuring out whether something is sex discrimination is pretty easy. Just ask “would my opposite sex clone have gotten the same punishment?”

      If the answer is “yes”, then it’s a sex-neutral policy you violated.
      If the answer is “no”, then congrats, you got a case of sex-discrimination.

      That said, whether it’s a flesh and blood dick or a silicone vibrating one, I think anyone would get in trouble for violating donuts like that.

  10. Is it really legislating from the bench if a judge rules a particular way on a law that has some room open to interpretation? If I’m picking up the correct meaning from Scott’s penultimate paragraph, laws should be written specifically so that this can’t happen if people are afraid of this happening.

    1. Only if you think that ‘sex’ is an ambiguous term.

      1. That’s what viagra is for

      2. Did you know that in some states a woman cannot legally rape a man without a strap-on our other insertive device?

        Point being: yes. Legally speaking, lots of things are ambiguous.

    2. Read Posner’s concurring opinion. He openly argues for and embraces “judicial interpretative updating”. To be sure, he thinks that there needs to be a period of time that has elapsed from the date of the enactment and the “updating” by the judiciary.

      John, if you are around, I would like to know what you think of Posner’s opinion.

      1. Hey, where is John, anyway? I didn’t notice his absence until now, but suddenly this place is echoing with the sounds of silence. Has he finally joined the Yokexit?

        1. He is pinned beneath a heavy chick somewhere in the DC suburbs. Someone should probably go check on it.

      2. That is an inherently corrupt philsophy. I would argue Posner should be impeached and removed for advancing it in a signed opinion.

      3. I’m absolutely going to love when regulatory rulings on Title IX totally kills women’s athletics.

        It’s like ray-eee-ain on your wedding day… Isn’t it ironic?

        1. Won’t happen. The people who enforce the rules know they were meant to protect women from men, not vice versa.

      4. To be fair, anyone that talks about “natural law” is also advocating for that. And really, any time you enter the concept of “justice”, “fairness”, “good” or “right”, then you’re saying that sometimes you should do so.

    3. There is no way to write a law that is not open to interpretation if the reader is bound and determined to reach a different conclusion.

      1. If you say so.

        1. “Shall not be infringed”…

    4. It’s only open to interpretation in a bizarro world where “originalism” is considered some kind of partisan extreme for the judiciary, and we have to suss out their personal politics when appointing judges because it predicts exactly how they rule on cases.

  11. Discrimination in employment and housing is a little different, though, and there are going to be those who feel it’s fundamentally different to punish a baker for not making a wedding cake versus punishing a college refusing to employ a gay person.

    A college probably receives public funding, so it’s fair, indeed mandatory, for the government to impose non-discrimination statues on publicly funded colleges. The state is forbidden from discriminating among citizens under the equal protection clause, and therefore it cannot fund entities that discriminate.

    On the other hand, private entities ought to be free to discriminate against whoever they want. The ability to freely associate with others (or not) is critical to society’s ability to establish, maintain, and change social norms, including the ability to establish norms *against* bigotry. People need to be free to NOT bake cakes for Christian bigots, just as they should be free to not bake cakes for gay weddings. This way the establishment or not of a norm supporting gay marriage is left up to society to work itself out. The government may not impose such a norm, as that is equivalent to the establishment of religion. We should generalize from the establishment of religion to the establishment of any value system that regulates private non-violent social behavior.

    1. I still don’t know if this means that say, a gay rights organization can now be sued if it doesn’t hire straight people for director-level positions. Or for any position, for that matter.

      The way I see it, it looks like it opens the door for that.

      Serious question, is the Seattle Men’s Choir a sexist organization, and should they be forced to let women in?

    2. What happens when, to some extent, everyone has at least one of their fingers in the Gov’t pie? Are there now no longer any truly “private” entities?

      1. I believe that was the stated goal of (at least some) prominent Democrats back in the 90s. Get everyone hooked in, then it can’t be undone.

    3. Where do you draw the line though?

      Ok, so the DMV can’t discriminate. But what if they contact out some of their services? Can this contractors discriminate?

      Similarly, a state run adoption agency can’t discriminate? What about Catholic Charities -who have “the state” as a big finding line- who don’t want to serve it hire gay people? Does it make a difference if there *is* a state-run agency? What if there aren’t any?

      Or since we live talking about nuns, want to make any bets on where the “Little Sisters of the Poor” get their money?

      Heck, what about that Ocean Grove NJ case? Church took a grant to refurbish it’s outdoor pavilion on the condition that it would be open to the public. Then after spending that juicy government money it refused a gay couple.

      Face it, add much as that kind of simple public/private distinction appeals to me, there’s to much gray area for it to work. And the folks interested in discriminating aren’t going to say “okay, well give up our government revenue streams in exchange for the ability to discriminate”. I mean, they’re the same folks that sided with Kim Davis, after all.

      1. Pretty simple: they give up the government money or they don’t discriminate.

        Of course this would be a lot simpler if the government were smaller and didn’t have its fingers I. Every facet of the economy.

        As it stands, many a conservative Christian probably reasons that, since he has to support his public university promoting abortion or discriminating against white people, why can’t he use government money to promote his ideas and discriminate against some group he doesn’t like (just call it affirmative action for straight people).

        This is what happens when one uses state institutions to support causes some taxpayers disagree with. The government ceases to be a neutral party, and now everyone fights to make their morality the public morality, once it has abdicated moral neutrality.

        1. The loudest voices in the “right to discriminate” crowd, at the moment, are the “religious liberty” crowd.

          This is the same crowd that supported Kim Davis, supports bans on adoption by gay couples, called Obama’s hospital visitation executive order an”attack on Christianity”, and objected to an amendment to one of the (many) “religious right to discriminate” build that would require that folks publicly posted their intent to discriminate. And if you go back 14 years, they were whining over Lawrence v Texas too.

          So yeah if you think they’d be satisfied with prohibiting government discrimination but allowing private discrimination, you’re crazy. That has *never* been their line. They have actively sought, for decades, government discrimination.

          Which is, if course, the problem for libertarians on this topic. The only “down with non-discrimination laws” ally you all have are folks that *want* discrimination enforced by the government.

  12. There are multiple ways of defending this decision from a libertarian perspective

    No, there are not. Adding more ‘protected classes’ is unlibertarian at it’s core.

    1. Shack is a ‘by any means necessary’ quasi-libertarian.

      1. Um…

      2. Shackenford is no True Libertarian like Donald Trump, right?

        1. Yes, big Trump fan. You are so clever.

          Firstly, I was half-joking. But, I do think it is perverse to suggest that expanding protected class status can ever be squared with reducing the size of the state.

          1. Do you consider equality under the law to be libertarian in principle?

            1. Do you think that protect class status furthers equality under the law?

              1. I think the very notion of a protected class is immoral and reprehensible from a libertarian perspective. And to answer your question, no, it does not. But that wasn’t the point, now was it?

                It’s pretty obvious that Shack doesn’t support PA laws. The stipulation was what’s the best libertarian position given the PA laws will remain in place.

                There are multiple ways of both defending and critiquing this decision from a libertarian perspective. When elimination of laws and regulations are not on the table?and they’re not here?the appropriate alternative is for them to all apply equally.

                1. Right, so why then should libertarians oppose interventionism? I mean that’s going to happen anyways. And why should libertarians support free markets and dismantling the state? I mean the state is only going to grow anyways.

                  The position that you and Shack are taking is the ‘I don’t really believe in any of this stuff to begin with’ position.

                  1. The position that you and Shack are taking is the ‘I don’t really believe in any of this stuff to begin with’ position.

                    You do realize that one can aspire to the moral position while settling for something less in the interim, right?

                    Now answer my question. Do you believe equity under the law is libertarian in principle?

                  2. The position that you and Shack are taking is the ‘I don’t really believe in any of this stuff to begin with’ position.

                    You do realize that one can aspire to the moral position while settling for something less in the interim, right?

                    Now answer my question. Do you believe equity under the law is libertarian in principle?

                    1. Do you believe that federal marijuana laws, which are ingood standing today, should be enforced equally in all states?

                    2. Do you believe that federal marijuana laws, which are ingood standing today, should be enforced equally in all states?

                      Nope. They should be unenforced equally in all states.

                    3. What moral position are you aspiring to by insisting that the state should grow?

                      And, of course, I believe equality before the law is an intricate part of a free society. Creating protected class status does not further that objective at all.

                    4. What moral position are you aspiring to by insisting that the state should grow?

                      Burn that strawman.

                      Creating protected class status does not further that objective at all.

                      No shit. But since govenment is (or should be) bound to provide equity before the law, perhaps the government has no business making law where it can’t provide such equity. I want it argued to the absurd. I want the government to have to live with the bullshit rules it makes. I want government to need to support the ridiculous position it created to voters. I want them to argue that a business must not discriminate against not only race or sex…, but anything. I want them to support the position that a business can’t discriminate against Nazi pedophile klansmen who fuck dogs in church and don’t brush their teeth.

                      Then, perhaps, we’ll get to the point where we can have the discussion as to whether the government should be in the forced association business.

                  3. The position that you and Shack are taking is the ‘I don’t really believe in any of this stuff to begin with’ position.

                    This has got to be on the same level of stupidity as “if you don’t vote, you can’t complain.”

            2. My state has a law where 15% of all gov’t contracts must go to a woman or minority owned business- so everyone puts their business in their wife’s name (and if she’s black lady married to a white guy, it’s even better.)

              Sounds like “equality” to me…

        2. Shackenford is no True Libertarian like Donald Trump, right?

          Yes, I would consider neither Shackford nor Trump to be True Libertarians.

    2. My state has a law where 15% of all gov’t contracts must go to a woman or minority owned business- so everyone puts their business in their wife’s name (and if she’s black lady married to a white guy, it’s even better.)

      Sounds like “equality” to me…

  13. Homer: [singing] Oh Mindy, you came and you gave without flaking, But I sent you Ben Gay. Oh Andy, you kissed me and stopped me from something, And I –
    Lisa: Dad?
    Homer: Ah! What did you hear!?
    Lisa: Well, from the words in your song, you’re smitten with a woman named Mindy…or a man named Andy.

  14. How does one get discriminated against on sexual orientation during a job interview? Do people ask candidates what sex organs they find more attractive?

    Maybe I should check my privilege, but this has never come up in an interview.

    1. I’m going out on a limb here and guessing you do not show up with a butch mullet and army boots, and a big chain hanging off your belt?

    2. If you’re gay and apply for a job at a religious school, they might have something to say about that.

    3. How does one get discriminated against on sexual orientation during a job interview? Do people ask candidates what sex organs they find more attractive?

      I made the same mistake. She was denied advanced positions, presumably, because she was gay. You’re point still stands though, I doubt ITT Tech. has a ‘No bull dykes in top math department positions.’ policy and I doubt any of it’s administrators were dumb enough express the notion that the problem with her and the position she was seeking was her wife.

      1. Er, as per correcting above, Ivy Tech.

    4. On the low-bar side of things, if you do a cursory web search/social media search, you can find all sorts of incidental info.

      That said, you ever been applying for a job where the employer feels the need to sell the community/City/area before? They try to find out what your non-work interests are so they can bring up local stuff relevant to your interests. So things like whether you’re married, if you’d be looking for a house, what kinds of schools are around, outdoors stuff, dance scene and so on can all come up.

      Heck, if you just ask about benefits at the company, pronouns can give you away if you aren’t trying to obfuscate things. “Hey, that MWR thing sounds neat. And my husband would be able to use it too?”

      Fact is, must straight folk day things all the time that give them away. But most don’t notice because it’s assumed. Same reason folks complain about gay people “shoving it on their faces” by having a photo on their desk. While the guy in the next cube had a panoramic spread of his wife and kids.

  15. That’s been the libertarian argument for same-sex legal recognition. If the government is going to regulate marriages it shouldn’t be discriminating on the basis of sex of the participants (and arguably the number of consenting adults who want to participate).

    Same sex marriage was a lot less complex than gender identity issues, and don’t easily lend themselves to frivolous lawsuits. Same sex marriage made the GOVERNMENT recognize something– the government being the sole arbiter of marriage licensing and recognition for legal matters such as divorce or custody battles.

    What started freaking people out was the legal water-testing in the aftermath. “The government recognizes my marriage, now you will too, and you will acknowledge it and celebrate it.”

    To me, there’s a pretty bright line between the government recognizing people equally (which in the end is mostly about wealth transfer payments and benefits) and jackbooting the culture into social acceptance through fear and intimidation.

    1. To me, there’s a pretty bright line between the government recognizing people equally (which in the end is mostly about wealth transfer payments and benefits) and jackbooting the culture into social acceptance through fear and intimidation.

      I agree with this.

    2. Yeah, the argument for same-sex marriage recognition was for equal / less discriminatory application of a government-granted privilege, a privilege which people are still free to forgo. This is the ‘equal’ application of a restriction of people’s freedom. And I think it skirts close to the drug warrior and immigration restrictionist arguments about (equally!) enforcing the laws on the books and all that.

    3. “The government recognizes my marriage, now you will too, and you will acknowledge it and celebrate it.”

      Now bake me my fucking cake.

      1. Is a fucking cake like an erotic cake?

    4. To me, there’s a pretty bright line between the government recognizing people equally (which in the end is mostly about wealth transfer payments and benefits) and jackbooting the culture into social acceptance through fear and intimidation.

      Considering the arguments used to advance these stances and this agenda consistently, explicitly, and repeatedly slurred slavery and suffrage with marriage, you’re a moron.

      Not only does the government not give two shits about your bright line (and you know it), the movement was largely comprised of people effacing themselves as willfully blind to pretty much any line you would want to draw and did their utmost to make you aware of it.

      If you missed the government’s steamrolling apathy and the advocates cheering each others’ willfull blindness, the opposition, in each dying breath on each subsequent hill, laid out for you in no uncertain and wholly Constitutional and secular terms that this was exactly where this issue was headed.

      1. Not only does the government not give two shits about your bright line (and you know it)

        Nor do they give a shit what you think, so calling him a moron is pretty, um, moronic. There is a clear line. Just because people want to push other shit on top of it doesn’t mean it doesn’t exist.

        And further “the government” isn’t really the sort of thing that can give a shit or not. “The government” is a collection of individuals with conflicting views and convictions, some of whom think government recognition is plenty good enough, some of whom want to force it down everyone’s throats and some of whom think that gay marriage is an abomination.

        If the issue is really inevitably headed in the direction you say, it makes no difference what you or I or any other internet libertarians think about it. Paul saying that there is a bright line is true, so don’t be a dick.

        1. Paul saying that there is a bright line is true, so don’t be a dick. Really?

          The shit drifts.

          It’s a common sentiment that we are about 20-30 years behind Britain on the increase of Gov’t stupidity. And Canada now has regulations that you must recognize someone’s “gender pronouns” under penalty of law… and you can be jailed for criticism of a Muslim in England.

          I think tt’s inevitable, but I’ll still fight…

        2. That “bright line” is blazing…

          General setiment around here is we are about 20-30 yrs behind British stupidity- where you can be jailed for merely criticizing Islam, and Canada currently has Mark Steyn in court for his opinion.

          It is probably inevitable- but I’m still willing to fight…

          And cowards and quitters already know what they can do with my dick. And you will bake me a fucking cake or pizza– or lose your business.

    5. “To me, there’s a pretty bright line between the government recognizing people equally (which in the end is mostly about wealth transfer payments and benefits) and jackbooting the culture into social acceptance through fear and intimidation.”

      You think it’s the government that is behind the social acceptance of alternative marriages and sexualities? I’d say it’s the other way around, and that the government is rather late to the game. Wasn’t Obama, Clinton et al at first against gay marriage, for example? Libertarians have been on this issue, “jack-booting the culture into social acceptance” since the 60s at least, long before the government or the courts took notice.

      1. Social acceptance of gay marriage (and other cultural issues) are almost always ahead of the government. But if that’s all that mattered, there would be no need for government licensure (law) of your same-sex marriage. But because the government conveys privileges and benefits based upon that recognition, that was an ipso facto violation of equal protection to deny it to gay couples.

        It almost sounds like you’re arguing against legalized gay marriage, and would have been happy with people standing around the watercooler simply saying, “I’m good with it!”

    6. Diane: “To me, there’s a pretty bright line between the government recognizing people equally … and jackbooting the culture into social acceptance through fear and intimidation.”

      Yes, but the jackbooting bit is definitely more fun for the true believers.

      Who cares about welfare payments when you can put the screws to people you hate with the government’s help?

  16. Could a person also now claim that a lack of required skills to do a certain job as discrimination against those of the “incompatible sexual orientation”. We already know that most politicians don’t have the skills for their jobs so why not all jobs.

    1. The only skill required for a political job is the skill to get elected.
      All elected officials have the skill. QED

  17. As a libertarian it should be your right to discriminate against anybody but if you are a true libertarian you would not discriminate against anyone. The difference of course is when one is accepting of differing ideas and when the government forces you to accept differing ideas

    1. but if you are a true libertarian you would not discriminate against anyone.

      Really?

      Who doesn’t discriminate against anyone? So, even though Doug from Accounting is a colossal asshole, you still invite him out with the team for drinks?

      1. Is he paying?

        1. If that was the case he wouldn’t be an asshole. But Doug always happens to go to the bathroom just before the check comes.

      2. being an asshole is separate from politics, religion, sexuality, appearance, physical constraints, etc. but I think you know that

        1. “being an asshole is separate from politics, religion, sexuality”

          How, exactly?

          1. I’m glad you asked this, because that was 100% my next question. To the word.

    2. When has the government forced you (or anyone) into accepting different ideas? The most heavy handed actions I’m familiar with is when armed troops forced public schools to accept black students into their classrooms. It wasn’t the ideas of bigoted school officials that the government cared about, but the rights of black children to be educated.

      1. Well, that was one government forcing another government into accepting students into a government program. So you’re close. But no cigar.

        1. When has the government forced you (or anyone) into accepting different ideas?

          1. The government forces me to accept different ideas every day. I believe in the idea of an unrestricted, open, armed populace. My government says otherwise. I live with and accept that idea.

            1. In other words, following a law you disagree with is what you call being forced to accept different ideas. Are you also, like Ron, being forced to accept that global warming is a Chinese hoax? However tempting, I advise not to accept this idea.

      2. the government is trying to force global warming ideas, pro abortion ideas. and for a while the government actively forced eugenics on society by sterilizing people who were orphans. I’m sure I can find other ideas like several people think the the government should force religious churches to hire people who actively disagree with church ideals. the one form of discrimination I would accept however suggest that they accept people and convert them.

        1. What ‘global warming idea?’ That it’s a hoax perpetrated by the Chinese? Only morons are buying this line of bullshit, I’d think twice before swallowing. About churches, I don’t think their beliefs entitle them to do things the rest of us are forbidden to do, like discriminating on the basis of race, sexuality etc.

          1. you apparently lack in reading comprehensions skills and are being an asshole so its okay for me to discriminate against you and discontinue this conversation

            1. Governments make laws. That’s not the same thing as ‘forcing you to accept different ideas.’ You remain free to embrace whatever ideas strike your fancy. As for the laws, the Existentialists say that you’re free to choose whether or not you follow them.

              1. So if the government forces you to finance organizations propagating certain beliefs, forces your children to attend schools teaching certain beliefs, and punishes people for publicly expressing certain beliefs, you don’t think any if that constitutes bootstrap by freedom of thought?

                Ok, how about the government outlaws Hinduism. I mean they’re not preventing you from accepting Hinduism so no big deal. What if they use your tax money to promote evangelical Christianity and make your kid’s school teach it? I mean the privacy of your mind yo can still reject the idea, so it’s fair game then, right?

                1. “Ok, how about the government outlaws Hinduism. ”

                  I welcome it. Any religion worthy of the name should have an antagonistic relation with the government. It’s worked quite well for the Christians over the centuries, today notably in China. Where religion and government relations are cozy, ie USA, both are stagnant and self-serving, filled with parasites. That’s what makes Islam such a dynamic force, government opposition.

                  I’m not sure what you mean by bootstrap, so I can’t comment on your first paragraph, except to say that if you don’t like how your government is spending your taxes, you have a number of options to make your opposition known.

                  1. You welcome outlawing religions, and you mention China as a success story?

                    Ok, I think I understand you better now. Your contempt for individual freedom is the kind only someone could have who has had the luxury of not having to worry about a black bag being put over their head while they’re loaded into a van because they’re not right thinking.

                    I’m also now certain it will never occur to you what a reprehensible human being you are.

    3. Anytime you choose one person over another for anything, you are discriminating.

      A real individualist libertarian shouldn’t discriminate against anyone based on some arbitrary or irrelevant characteristic or what group or class they belong to. But people get to choose what’s relevant to them.

      1. Right, no discrimination based on some collective characterization of a whole group. But it’s fine to discriminate against individuals based on their individual beliefs or behavior.

    4. I don’t know about not discriminating against *anyone*. I would just say, you shouldn’t discriminate against people on the basis of collective judgements like race,ethnicity, and so forth.

      However, if you know that a particular individual (say) practices Sharia law, or holds some beliefs that you find morally repugnant, it’s fine to discriminate against them.

      You just shouldn’t assume that individuals hold the beliefs or attitudes that people stereotypically attribute to the group they belong to.

      1. I don’t know about not discriminating against *anyone*. I would just say, you shouldn’t discriminate against people on the basis of collective judgements like race,ethnicity, and so forth.

        What are those group characterizations and can they be listed, and if they can be listed, does everyone agree that the list is complete or too broad?

        However, if you know that a particular individual (say) practices Sharia law, or holds some beliefs that you find morally repugnant, it’s fine to discriminate against them.

        That’s way of saying it’s ok to discriminate against people that practice Sharia law.

        1. That’s way of saying it’s ok to discriminate against people that practice Sharia law.

          The language is still muddy. What do you mean by “discriminate,” exactly, what do you mean by “practice,” and what do you mean by “Sharia law”? It seems like this could potentially encompass a whole range of situations that are not in any way equivalent. For example, this could encompass someone that actually stoned a woman for adultery and someone else that expressed a belief that Muslims should be able to settle disputes in their own court.

          1. Fair enough. Maybe if you learned that some individual thought that stoning was an appropriate punishment for adultery, then you would be morally justified in not baking them a wedding cake.

      2. “We all share different beliefs so we all should be treated equally no matter what belief we have,” Camara said.

        […]
        He tells Eyewitness News exclusively that when he refused to work with pork, the major retailer sent him outside to gather carts.

        “Just because you have a different belief, that doesn’t give anybody the right to treat you different,” said Jean Camara, suing Costco.

        That’s why Jean Camara says he’s doing what he’s doing, suing Costco for religious employment discrimination.

        The devout Muslim says he was working as a cashier’s assistant at the Costco in Sunset Park Brooklyn in September of 2012 when pork came across the conveyor belt.

        It’s against his religious beliefs to touch either pork or alcohol.

        I wanna work at Costco, but I won’t touch or handle pork or Alcohol. If you re-assign me, that’s discrimination. And the individual sues… on behalf of the group.

        1. So it is, “Treat me differently, but do not treat me differently in a way I do not like!”

        2. That’s an interesting example Diane, and frankly it’s pretty retarded. What happens if he decides to go and get a job at a pork processing plant? I assume they should just mail him a check not to come into work every day? Seems legit.

          Accommodation law has gone way, way too far but I can’t think of a good way to shut them down. There’s essentially zero downside for them to sue so large companies just need to eat that as a cost I guess.

          It would be tough to find a better case that illustrates that loser-pays-legal-fee’s is a necessary reform.

          1. What happens if he decides to go and get a job at a pork processing plant? I assume they should just mail him a check not to come into work every day?

            No, because excluding him from the workplace would be discrimination too; think of the stigma! The proper accommodation would be to convert it to a halal food processing plant.

        3. “I can’t believe they wouldn’t transfer me into the general manager’s office!”

          I’m surprised someone that stupid is able to dress himself in the morning let alone hold down a job.

        4. “We all share different beliefs so we all should be treated equally no matter what belief we have,” Camara said.

          “Just because you have a different belief, that doesn’t give anybody the right to treat you different,” said Jean Camara, suing Costco.

          And then he sues to be treated differently because he has a different belief.

          And isn’t it just as bad to work for a company that sells people pork and alcohol?
          Also, I’m pretty sure he never had to touch any pork or alcohol anyway. For the most part meat is wrapped up and alcohol in containers when you pay for it at the grocery store.

          1. It’s complete bullshit. And he sounds like a convert based on that name, which means he’s probably playing the holier-than-thou card. Claiming that a devout Muslim can’t touch a package of bacon is like saying a devout Jew can’t touch a light switch on Saturdays – it’s all a matter of how far you take it.

            1. Right. It’s not every Muslim in the world who thinks they can’t touch a piece of bacon that is encased in plastic. It’s that one individual’s personal belief.

        5. I don’t see that as discrimination against a group. After all not every Muslim is going to interpret their faith as “I’m not even allowed to touch pork even when it’s wrapped in plastic or encased in a container.”

          That belief is that *individuals* belief.
          Even if all Muslims believed that, that would be a big collection of individuals holding specific beliefs. You could still ask each Muslim applicant “so, does your religion forbid you from touching bottled beer?” , instead of just assuming it and automatically discounting them.

        6. No doubt mtrueman will come and explain how this kind of bullshit is completely harmless and the legal costs never get passed on to customers or deducted from employee compensation.

        7. You do not have to handle pork, you have to handle sealed pork packages.
          You do not have to handle alcohol, you have to handle packages of alcohol.
          If I reassign you, it is because I need you to do a different job.

      3. I don’t know about not discriminating against *anyone*. I would just say, you shouldn’t discriminate against people on the basis of collective judgements like race,ethnicity, and so forth.

        While Hazel’s interpretation is one of the more generous, it’s still bullshit. The underlying assumption is that discrimination, even collectively, is an inherently bad thing and it’s not. You all even conditionalize it with notions of rampancy and (ir)relevancy as though the terms are self explanatory in any given context of discrimination. The entire argument smacks of the false dichotomy surrounding free association whereby true libertarians believe everyone should be free to associate, but some types of associations are prima facia or de facto more preferable and should be encouraged.

        “I believe in an absolute individual’s right to free thought and free expression, but true libertarians shouldnt’ discriminate.” Huh?

        1. I suppose what you think libertarianism really is matters here. If it is purely a philosophy about the proper role of government and use of force, then it has nothing to say about whether an individual should or should not discriminate against others in private life.
          If it also involves some kind of individualist ethic that demands you consider each person as an individual in all of your dealings, it’s a bit different.

          1. I only invoked libertarian as others invoked ‘true libertarian’;

            As a libertarian it should be your right to discriminate against anybody but if you are a true libertarian you would not discriminate against anyone.

            However, for individualists/collectivists, the point still stands. There are radical individualists who would automatically supercede an individual’s human rights over any others automatically. Or at least automatically enough that “If 100,000 armed foreigners showed up at the border, are they granted their free speech, arms bearing, and immigration rights?” becomes a legitimate question.

        2. There’s libertarianism as a strictly political philosophy, and libertarianism as a personal moral ethos.

          Also known as “thin libertarianism” and “thick libertarianism”.

          Personally, I think libertarianism demands some sort of co-existing libertarian moral ethos to at least be the dominant social norm. Once you establish that the government cannot used force to eliminate discrimination, you still have to address the problem that people can be oppressed within a social context, not just by the government. We don’t really want racists to just be able to go around being racist without experiencing any social sanctions. We want to use social sanctions to try to reduce the amount of racism in society, if not eliminate it.
          Otherwise, you’re going to have a lot of angry minorities who will point out that nobody is going to do anything about this racism problem except the government.

          1. And ‘thick libertarians’ are closet statists who fervently believe that ‘the personal is political’ and thus claim that their ‘libertarianism’ is a personal moral ethos?

            Which would mean that ‘thin’ libertarians are the ones who call those folks ‘thick’, yes?

            Libertarianism is a political philosophy. It does not apply individually. There is nothing denying the liberty of you to own yourself at the individual level. You aren’t being oppressive of your own liberty by telling yourself what to do.

            Deciding that you have the right to regulate what someone else does (not allowing racists to racist) and wanting some societal sanction placed upon them is statist, collectivist, and highly illiberal. You can pretend that the group you want to sanction the racist isn’t a group suppressing someone else’s liberty, but it’s just pretense.

            1. Deciding that you have the right to regulate what someone else does (not allowing racists to racist) and wanting some societal sanction placed upon them is statist, collectivist, and highly illiberal. You can pretend that the group you want to sanction the racist isn’t a group suppressing someone else’s liberty, but it’s just pretense.

              Precisely.

              You can’t force or prevent them from being racist. The best you can do is be as prolifically non-racist (frequently or entirely just synonymous with differently racist) as you and/or your peer group can be (and I don’t mean to suppress speech/art but I mean prolific in the economic produce a service or product manner). Even then, at the very least, you’re tossing the whole ‘Individualism or death!’ notion/ethos right out.

              And I didn’t mean to conflate the two or thick/thin libertarians. As much as refute the personal suggestion of not doing a presumed bad. Saying “don’t discriminate by race” denies the very valid and real outcome of discriminating by race leading to positive results. Even in cases where racial differences aren’t explicitly empirical in nature.

              1. Saying “don’t discriminate by race” denies the very valid and real outcome of discriminating by race leading to positive results.

                Not for innocent people who happen to be of the wrong race. Do you want people to be treated equally by others regardless of their skin color or not? Do you really want a society where black people are systematically rejected and excluded regardless of their individual merit? Or do you want one where people have a chance to be judged for themselves and not for their collective characteristics?

            2. How can you be a statist if you don’t think the state should be involved?
              Nobody is supporting anti-discrimination statues. We’re supporting not patronizing businesses run by racists, which is a free choice. If I don’t want to financially support racists by going to their businsses, I don’t have to.

              Anyway we are talking about people who think it’s their right to not serve black people, so it’s ragingly hypocritical for someone to say racists should be allowed to be racist and not have anyone discriminate against them for being racist. If you should be free to discriminate against black people, you should be at least as free to discriminate against racists. It’s really just a matter of what sort of society you want to promote? Do you want a society where black people are largely discriminated against, or one where they are not?

      4. Profiling people based on collective judgements is a valuable part of human intelligence, which can help you in many ways such as in economics or safety. This is why everyone does it and it’s impossible to stamp out racism. Until the statistics of all groups are the same, you gain from using all the info you have versus a policy of ignoring facts. People do often misuse the info, basically by not understanding the importance of the prior probabilities and thinking a big increase in risk counts as something horribly dangerous (like profiling for terrorists, or many stupid driving laws), when in reality it’s from .0001% to .01% or something. But that’s different than the moral question of discrimination.

        1. Profiling people based on collective judgements is called “prejudice”.
          There’s a reason why Western civilization came up with norms that tell you not to judge a book by it’s cover, to treat people as individuals. Yes, it’s easier to make collective judgements, but it ultimately results in a less fair, less just society. It’s important to have norms against making collective judgements precisely because it’s easier and more advantageous for many people. We want a society where people are given a chance, regardless of where they come from, and not judged according to collective characteristics, even it it’s harder. The norms against prejudice are there to counteract the tendency to make collective judgements, so that we don’t spiral off into segregated ingroups and outgroups and tribal identity. They promote social cohesion.

          Do you really want to live in a society where people are totally uninhibited about profiling people based on collective judgements?

          1. What’s this “totally uninhibited” business? Sounds like a false dichotomy? Let’s say I’d prefer a society where people have individual freedom, and anything people do with their own property that is not in their personal best interest is a charity not a moral imperative.

            In our society you can be “prejudiced” for a vast number of reasons without repercussions; there is only a tiny list of legally unacceptable reasons to discriminate against people in certain practices. And even so, many of those rules can cause you real problems. For example people that are bipolar can create a living fucking hell in your workplace, though they are protected by the ADA.

            1. We’re talking about people who claim the legal right to discriminate against others based on skin color. If it’s OK to discriminate against people based on skin color, it is at least as OK to discriminate against them because they are prejudiced.

              Do you think that society is morally obligated to tolerate racists, but NOT morally obligated to tolerate black people?Alternatively, do you think it’s MORE morally permissible to discriminate against people based on race, than to discriminate against people based on their racist beliefs? It’s okay to be racist against blacks, but not okay to be intolerant towards racists?

              How does that work? I’m supposed to be morally obligated to be accepting of racist people, but the racist person isn’t morally obligated to be accepting of blacks?
              SERIOUSLY????

              1. I don’t even follow what you mean here. Are you talking about laws or some kind of religious taboo you hope will become widespread? How do you “discriminate” against prejudiced people exactly? using the brutal and primitive force of govt to rob them of the fruits of their labor? Yeah that would fall under the “not ok” category in my book. Otherwise I obviously don’t care what you do with your opinions.

                And are you imagining we live in some kind of post-racial fantasy world where parents don’t take instant notice of the skin color of the children at a school or the residents in a neighborhood before avoiding those places at all costs? Where URM applicants aren’t automatically presumed to be a step behind due to weaker schools and affirmative-action-won head-start? Because I’m not arguing about what should be, I’m pointing out what happens when groups differ in their performance. Economic self-interest is a force that will drive everyone. You act like I’m proposing some kind of regressive dystopia for pointing this out.

                The “solution” of course is also economic self-interest. Making sweeping assumptions to save a few bucks must be countered by the risk of missing out on, or losing to the competition, valuable workers who don’t fit those stereotypes. Jim Crow only happens when the govt steps in and makes laws forcing things to the other extreme.

                1. How do you “discriminate” against prejudiced people exactly?

                  Exactly the same way they claim the right to discriminate against other races, or whatever other groups – by not hiring them, not serving them in restaurants, not renting homes to them, not patronizing their businesses. By excluding them from society in precisely the same way they attempt to exclude others.

                  1. Kinda narrow answer but ok. Let’s pretend you can achieve lockstep social conformity, at least by a large enough majority to crush dissenters thoroughly. Boycotts and refusal to hire select people for reasons other than their predicted performance, all imply that you intentionally make a poorer economic decision than you would have otherwise. Indeed same issue if you force people to risk interviewing and hiring people that are far less likely to be qualified, just because the particular means they might use to make this (fairly accurate) prediction is verboten. As a result of all of this, resources are utilized less efficiently, and everyone is paying higher costs for the same things. You’re throwing geniuses out on the street and hiring their dumber-but-politically-correct classmates to research your diseases. Do you disagree with the statement that eventually, the compounded progress of actual market freedom will provide greater benefit to minorities than your policy of colorblindness, or do you think the warm-fuzziness of such a policy is more important than curing cancer sooner and whatever else?

                2. How do you discriminate against bigots? Well, you can always boycott them.

                  And from the government side of things, you can make “having a non-discrimination policy” a prerequisite to getting government contracts.

  18. Much of my resistance to the expanse of public accommodation laws and my defense for the right of religious shop owners to decline to provide their services to same-sex weddings is based not on some sort of perverse pleasure at seeing gay customers get rejected.

    Yeah, we know you’re a cosmo.

    1. And he’s gay. I’ve heard that nobody hates gays more than gay men.

      1. It’s lesbians. The gay men don’t always see eye to eye with them.

        1. Lesbians are from Saturn and gays are from Uranus.

        2. I don’t discriminate – I don’t see eye-to-eye with anyone who has a good set of boobs

  19. I’ve got to give it some more thought, but I find the reasoning interesting and somewhat compelling.

    It doesn’t seem too unreasonable to say that if the party in question would be treated differently if they were of the other sex, then they are being discriminated against on the basis of sex.

    Whether these laws should apply to private or semi-private institutions is another question. But the reasoning is hard to argue with on its own.

    1. That’s why I’m wondering if this should really be called a case of legislating from the bench. If you’re going to write a law, it really ought to be written with ~0 ambiguity.

      1. It’s just that nobody at the time thought seriously about sexual preference when they were legislating that. Homosexuality was considered either antisocial or an illness, so thinking about it in terms of legislatively protected classes wouldn’t’ve crossed their minds. So they didn’t write in an exception nor did they explicitly include it.

        It’s like, would they have considered pedophiliacs a protected class on the basis of age discrimination, when you figure that if they were younger they wouldn’t be considered pedophiles because they’d be dating people their own age? There may be some states where the age-difference provisions overlap the minimum ages qualifying against age discrimination.

    2. You can’t really argue with it on its own, if you start from the premise that all discrimination is verboten.

      The problem is we libertarians continue to talk as if we’re fighting on a front when we’re already essentially surrounded. If we accept we’re surrounded, then tweaking the statutory interpretations don’t seem like such a big deal. One more class protected, one more pathway for lawsuits to be filed.

      The result has been (and will continue to be) perfectly fine employers who don’t actually discriminate against anyone but can easily get dragged into lawsuits.

      All this stuff really does is make it harder and more expensive to hire people.

      1. All this stuff really does is make it harder and more expensive to hire people.

        There is the biggest reason to oppose more anti-discrimination laws. Forcing people to bake cakes, or whatever, is bad, but it really affects a tiny number of people, many of whom are just trying to make a point (as is their right). But the possibility of lawsuits any time you hire or fire anyone who has protected class characteristics is really going to cause some damage that will affect a lot of people.

        As for your war metaphor, I’m afraid that we are just surrounded. We might be able to convince some people of some things and tweak some statutory interpretations in some positive ways, but that’s about it.

        1. I agree that there is no winning this war.

          However I do think there is an argument for persistently taking the uncompromising position and that’s that compromising enables shifting the the Overton window. As Arnold Kline points out, socialized healthcare now dominates the Overton window and soon any other position will be considered unacceptable; in part one could argue that’d because too many people opposed to it just gave in in order to get a lesser evil.

          It all seems to boil down to calculating the bed strategy to minimize the speed with which we gallop into the abyss.

        2. The fact that the alt-right decided to open up a new front on our rear, and some libertarians think they are our friends doesn’t help.

    3. I guess it depends how sexual orientation is defined. If it’s “this person likes women,” I can see the argument. If it’s “this person likes people of the same sex,” then the gender-swapping of the subject feels like a cheat to me. It’s avoiding the point of the discrimination. From the dissent:

      “An employer who refuses to hire homosexuals is not drawing a line based on the job applicant’s sex. He is not excluding gay men because they are men and lesbians because they are women. His discriminatory motivation is independent of and unrelated to the applicant’s sex,” Sykes wrote.

      That strikes me as the obvious conclusion, at first glance. Precedent about conforming to gender stereotypes looks like a more convincing argument.

      I dunno, my first reaction to Scott’s summary was that the court would also have to find merit in the anti-SSM argument that gay people can get married – to a person of the opposite sex.

      1. I would say that it should come down to behavior. You can’t really know a person’s state of mind with certainty. What they like is irrelevant. Who they have sex with or are married to can be determined.

        I don’t know. Like I said, I don’t have a fully formed opinion on this just yet.

    4. It doesn’t seem too unreasonable to say that if the party in question would be treated differently if they were of the other sex, then they are being discriminated against on the basis of sex.

      Except, by their own argument, this isn’t occurring. The selective reversal of only one person’s sex specifically makes it a sex issue. If we were talking about two guys, the discrimination as sexual orientation and not sex would be maintained, despite reversing the sex.

      It’s the same self-fulfilling prophesy, working from your solution to your theory, or negative affirmation that breeds “If we didn’t have the government, we wouldn’t have roads.”

      1. If we were talking about two guys, the discrimination as sexual orientation and not sex would be maintained, despite reversing the sex.

        How do you figure? Are men not (in theory) protected by anti sex discrimination laws?

        1. How do you figure? Are men not (in theory) protected by anti sex discrimination laws?

          Right, nominally they are. But what you’re saying is that there is no federally recognized right to homosexual protection unless we finagle the facts such that we can consider it as a form of protection that they still didn’t violate under the law. You aren’t considering the law while holding on to the facts nor are you considering the facts while holding to the law. You’re hypothesizing a discrimination occurred from facts that didn’t occur.

          If we had a M/M, F/F co-defendant case where a M/F partnership was chosen, this *might* make sense. But just an F/F case, in order to extrapolate to M/F and M/M comparatively requires you to conceptually violate both marriage and sex laws as written.

          Neither the M/M, nor the F/F discrimination is protected under law. But, in order to presume they would’ve done something one way or the other with regard to M/F, you have to assume they’d have done something disparate with the M/M, which they didn’t do. You’re stealing at least one base, if not two.

          1. Er… You’re hypothesizing a newly discovered illegal discrimination occurred from facts that didn’t occur.

            All of this on top of the notion that a community college should probably be free to hire and fire whomever they please.

          2. OK, I see what you are saying.

            As I said, I hadn’t really thought about it until just now, so my opinion is not fully formed.

            1. As I said, I hadn’t really thought about it until just now, so my opinion is not fully formed.

              Agreed/understood. It’s like trying to solve one of those classic algebraic fallacies where no operations were performed, just lots of equality statements were made and, in the end, the defendant is guilty because 1 = 0.

          3. Arg… M/M, F/F co-claimant.

            MOAR COFFEE!

  20. Judicial authoritarianism.

    These kinds of rulings are civilizational arson. The Left only gets away with these things because the Right still believes in rule of law, and *mistakenly* applies it while the Left violates it.

    One way rule of law is subjection, and eventually the Right will figure that out.

    And then no one plays by the rule of law.

    1. They do now?

      The rule of law isn’t a real thing. It only looks that way when laws are mostly accepted by most people.

    2. Oh how are you put out by this? Planning to fire someone for being gay?

      1. So, you should not be against outlawing marijuana if you never intend to use marijuana?

        1. I think it was the exaggerated outrage and not-so-implied threat of violent retribution that led me to question the poster’s reaction to the ruling.

          The precedent this overturns is shitty precedent that treats gay and trans people as something other than full humans. At best you can say there’s a little nudging of logic going on to say that antigay discrimination is the same as sex discrimination, but it makes perfect sense if you want it to, and nobody is really put out except those who have long accepted that they can’t cite a person’s race as a reason for denying them a job but still want to do the same to gays.

          1. not-so-implied threat of violent retribution

            Wha? Where? “And then no one plays by the rules of law”? So, when was the last time you saw everyone driving the speed limit? Why? Because if several people break the “law” and nothing is done about it, then very few will bother to pay it any mind. It’s an observation, not a threat.

            This is why writing lots of “laws” is a really bad idea and the whole “3 felonies a day” thing is so condemning of our current government.

          2. “…nobody is really put out except those who have long accepted that they can’t cite a person’s race as a reason for denying them a job but still want to do the same to gays.”

            Lawsuits of course do not require the firm to openly cite their reason for discrimination. Laws like this put everyone at risk, regardless why they make their decisions. Especially in our lawyers-take-all system where the target of a lawsuit is always a loser, even when they win in court.

            And what is this “other than full humans” nonsense? Who are you or anyone else in govt to dictate what the objective truth is regarding what is a “normal” human? Isn’t science supposed to be above politics?

          3. Again, some of us are capable of distinguished between what’s immoral and what should be illegal. I think it’s wrong for you to cheat on your wife, but I don’t think you should be imprisoned or fined for it. The fact that leftists don’t grasp this is rather unsettling.

            Also, he didn’t threaten violence, you just have a delusion of persecution. He was saying that when one side views it as appropriate to use the law to punish those they dislike and privilege those they like, the otherside will do the same. You can’t play dirty and expect your opponent to play clean. That’s not a threat, it’s an observation.

        2. The innocent have nothing to fear from the law, comrade.

  21. I would expect this to be 5-3 or 5-4 if it goes to the Supreme Court, with Kennedy writing the majority opinion, and with the “animus” rationale being the guiding principle.

    I would prefer to see a ruling limited to government institutions. I would love to see a 9-0 opinion, written by Thomas, prohibiting state discrimination based on Privileges and Immunities, and overruling all the slaughterhouse etc. precedents. In the fourth footnote.

    Hey, Pats win Superbowl, Heels win the tourney; number 3 has to be extra special. I’d settle for Trump having what appears to be a mild stroke, and waking up possessed by the ghost of Milton Friedman. Seems improbable, but not 3-28 improbable.

  22. The ruling only applies in the 7th circuit so it’s not a new protected class under federal law.

    1. The ruling doesn’t create a new protected class at all, just affirms that gay men and women are in fact men and women.

      1. No, by applying this to “sex discrimination” they are basically saying there are more than just 2 sexes, and it isn’t determined by biology, but by behavior (that can change).

        It’s colossally stupid, and very in line with what governments do.

        Also, I’m an An-Cap so all of this is just background noise to me. The whole issue here is the complete lack of logical consistency.

        1. Quotas are forbidden.

          1. I’m assuming in response to the affirmative action thread. Precisely defined “quotas” aren’t necessary.

            “After controlling for grades, test scores, family background (legacy status), and athletic status (whether or not the student was a recruited athlete), Espenshade and Radford found that whites were three times, Hispanics six times, and blacks more than 15 times as likely to be accepted at a US university as Asian Americans.”
            Wikipedia article…

          2. Quotas are forbidden.

            Really?

            The city I live in has a very specific “quota” that “woman, or minorty owned” businesses must receive at least 15% of all city Gov’t contracts.

            Can you believe it was written by a white businessman/council person married to a black woman who he transferred his ownership in his company to her 3 days before the law passed?

        2. I don’t see how it says that at all.

          1. Furthermore, the Supreme Court has previously established a precedent that discrimination on the basis of whether a person conforms (or not) to a gender stereotype counts as sex discrimination.

            Right there, for one.

            One of the useful things about the Left’s recent celebration of everything trans is that I now am more aware of the differences between the terms “sex” and “gender”. Sex is biological. Calling discrimination against those who don’t fit into gender norms “sex” discrimination is doing further violence to the language. You might say it’s gender discrimination, in that there could be infinite genders, but it’s not sex discrimination.

            1. But it is because, say, if the person calling herself a woman was actually a woman, the behavior would be different based on that fact alone (her sex).

              1. if the person calling herself a woman was actually a woman

                This is a tautology and cannot be considered by law, the very law you seek to define specifically without regard to whether she’s in fact, a woman, simply identifies as one, or is one of a myriad of genders unknown.

                You’re not just starting with a conclusion and working backwards, you’re starting with a conclusion, disregarding what actually happened, and ignoring your own principles for reasoning in order to get the judgement you like.

                The fact that this is so accepted/tolerated by legit libertarians (obv. not referring to you Tony) just shows how completely and absolutely fucked up on a basal secular logic level the LGBT rights issue has become.

                1. I so want to see a women’s B-Ball coach at a third tier college to start five dudes with beards and chest hair he recruited from the intramural league to slap down UConn by 18 points and win the Women’s NCAA National Champonship next year.

                  “They’re all feelmg like ladies tonight”… and please don’t police how they choose to express their gender!

        3. No, by applying this to “sex discrimination” they are basically saying there are more than just 2 sexes, and it isn’t determined by biology, but by behavior (that can change).

          Moreover, because the 2 sexes are (nominally) equal, the equality stretches to all the imaginable sexes without regard for scale. Because M = F, M/M = F/F = M/F *and* F/F = M *and* M/M = F an M/M partnership must be treated equally to an F/F/F/F/F/F/F/F/F/F/F/F/F/F/F/F/F/F/F/F partnership.

          The ruling rests on the notion that F/F != M/F *and* M/F = M/M (or M = M/F = M/M). If they barred her promotion the same as M/M then the case still stands on an discrimination against orientation that doesn’t exist but was applied equally across sexes.

          Damn I kinda wish I had a formal computer science/linquistics degree.

      2. Because before this ruling, if you killed a gay guy you’d merely be charged with animal cruelty?

        Come on Tony, even you’re not this dumb. Try not reasoning with your feelings for a change.

  23. Posner’s embrace of this kind of thing is a corruption of how the judicial branch is supposed to work. It is not up to the courts to decide what the law should be, it is to decide if the law grants the authority for the government to act and if the Constitution grants yhe authority for the legislature to create such a law in the firdt place. When judges decide they should and do have legislative authority, then part of republican self-government dies.

  24. If you thought there was any doubt about the Senate going nuclear over the Gorsuch nomination, well, that doubt should be removed now.

    This is a disgraceful decision, and it highlights everything that strict constructionists hate about living constitutionalists.

  25. If you thought there was any doubt about the Senate going nuclear over the Gorsuch nomination, well, that doubt should be removed now.

    This is a disgraceful decision, and it highlights everything that strict constructionists hate about living constitutionalists.

    1. Fucking squirrels…fix the comments engine, fffs!

  26. If you thought there was any doubt about the Senate going nuclear over the Gorsuch nomination, well, that doubt should be removed now.

    This is a disgraceful decision, and it highlights everything that strict constructionists hate about living constitutionalists.

  27. The only actually solid libertarian position on this is to oppose it as a court decision, on the basis that such things should only be done by passing laws. Activist judges erode democracy by removing consent as the basis for positive law.

    I happen to think also that libertarians should argue that a government of limited powers is the only guarantee of liberty. If we consider this an increase in liberty– and frankly I do not; I think it’s merely a redistribution at most– then we should still remember that judges can then use the same interpretive powers to take away people’s liberty. That’s why the libertarians who supported a “living Constitution” concept of the document were idiots. Sooner or later, they should have predicted, “living Constitution” would become a blank check for authoritarians– which is what happened.

    1. I think it’s merely a redistribution at most

      And, because Coase and that which is unseen, unless the redistribution is entirely voluntary, you don’t redistribute cost-free.

  28. The key to this isn’t anti-discrimination; if the people want this, they can get Congress to pass the appropriate law. It’s not supposed to be done by 8 arrogant black-robed tyrants rewriting existing law to suit their beliefs. It’s time for some sic semper tyrannis to clean out our corrupt juristocrats.

    1. “It’s time for some sic semper tyrannis to clean out our corrupt juristocrats.”

      This whole gay thing goes way beyond the reach of congress or the courts. It’s international and out of control.

  29. When elimination of laws and regulations are not on the table?and they’re not here?the appropriate alternative is for them to all apply equally. That’s been the libertarian argument

    For a long time before abolition was on the table in the USA & its predecessor colonies, slavery of whites had been outlawed. So there was a libertarian argument to re-extend slavery to all?

    1. Sure, why not?

      From a libertarian starting point, you can argue for *both* extending non-discrimination protections, *as well as* abolishing all of them.

      It’s up to the individual which way to argue based on what is doable and what is defensible.

  30. The only entities that should be subject to anti-discrimination prohibitions are government and monopolies. Everyone else has the basic human right to discrimniate as they please….

  31. “Everyone else has the basic human right to discrimniate as they please….”

    We already tried that. It led to police sending their dogs after people trying to drink from the wrong fountain. It wasn’t all that long ago. You could try to elect politicians who are against these new laws, but I wish you luck, the trend is against you. Even Trump the iconoclast goes out of his way to say good things about gays etc. I think it comes down to the times are a changing, new taboos and prohibitions pop up where old ones die. You want to prosper in the world of the future, you have to adapt.

    1. Your shameless alternation between sanctimonious moralism and Darwinian nihilism is probably the worst case of pathological goal post moving I’ve ever seen in a person. You have not a shred of intellectual honesty.

      In 1995 Rwanda, if you wanted to survive, you had to adapt and grab a machete and start hacking down Tutsis. I guess you don’t fault them for it.

      1. Times change. It’s the cruelest rule of the universe.

        1. There you go again. First you’re morally indignant about people being discriminated against, or pretty much anything ‘right wingers’ do, then when rebutted, you fall back on your nihilism and say ‘oh well, my views are inevitably going to become the norm, so it’s not about right or wrong, it’s jus about evolving.’

          But of course, did you notice who won the election? Things aren’t going your way; they may well be going very much against you. Tell me, will you adapt and accept ‘right wing’ ideals to get with the times? Or go on being petulant inexplicably indignant little nihilist?

          1. If you’re going to bring up the 2016 election as done sorry of indication of what direction “society” is taking, you should probably remember (A) Clinton got more votes and (B) turnout was horrible.

            That said, everyone keeps talking about how Trump is the most gay-friendly (Republican) President ever.

            So I’m not sure the election supports the point you’re trying to.

  32. “There are multiple ways of both defending and critiquing this decision from a libertarian perspective.”

    A lie, the right to discriminate is a fundamental natural right. There is no libertarian justification for curtailing it, with violence.

    “When elimination of laws and regulations are not on the table?and they’re not here?the appropriate alternative is for them to all apply equally. ”

    Another lie, the elimination of such unjust laws is on the table, this case could have struck a blow against them, instead it re-enforces them. If the state perpetrates violence against say, black people, then is the libertarian position to expand that violence to include white people, asians and other ethnicities, so that we can all be oppressed equally? No, and doing so sets precedent that makes it harder to repeal such laws. A key strategy in eliminating such intrusion into our lives is to point out that they are unequally applied. State oppresion that is equally enforced accross all demographics stands a much better chance of enduring.

  33. “Discrimination in employment and housing is a little different, though”

    No, it is not.

    “But if that’s how the citizenry feel, maybe federal law should actually spell it out.”

    Why? majority rule is not libertarian, and has no basis in a libertarian argument, should laws that actually enforce discrimination be spelled out in law because “that’s how the citizenry feel?” And if the majority feel that way, if it does reflect such overwhelming cultural sentiment, then why is it neccessary? as such discrimiation would be so rare.
    Scott Shackford’s arguments in this article are not libertarian.

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