Just one day before the Supreme Court ruled that states must recognize same-sex marriages, Cato Institute Executive Vice President David Boaz took to the website of The Advocate, a venerable national gay publication, to remind readers about the long history of libertarian support for gay rights. The Libertarian Party, Boaz noted, has called for decriminalizing gay behavior and treating gay people equally under the law since the organization was founded in the early 1970s.
Many other libertarian organizations (including reason) have been taking such positions for just as long or even longer. And since then, the United States has seen the abolition of sodomy laws, the end of officially sanctioned government discrimination against gay employees, and now—with the Obergefell v. Hodges decision in June—the end of government non-recognition of same-sex marriage.
So: Is that it, then? Is the gay movement ready to declare victory and go home?
Don't bet on it. Now that government discrimination is largely tamed, gay activists are going after private behavior, using the government as a bludgeon. After a long alliance with libertarians, the two camps could be settling into a new series of conflicts.
Libertarians and gay activists were aligned in the pursuit of ending government mistreatment, but libertarians draw a bright line between government behavior and private behavior, arguing that the removal of state force is the essential precondition for private tolerance. Many gay activists believe that government power is a critical tool for eliminating private misdeeds. What many activists see as righteous justice, libertarians see as inappropriate, heavy-handed coercion.
Now that gay marriage is a settled matter, it's worth taking an inventory of political issues frequently raised within the LGBT activist community to see where the two groups' values line up and where they conflict.
Historically, employment discrimination, not marriage recognition, was the big political cause for gay leaders. It would be easier, the logic went, to convince Americans not to discriminate against gays than to convince them to let gays marry.
That isn't how things worked out. The Employment Non-Discrimination Act (ENDA), introduced and reintroduced in Congress repeatedly over the last 20 years, has never passed; the closest it came was when it passed the Senate in 2013 by a vote of 64–32 but was not considered by the House. Meanwhile, gay marriage went from a pipe dream 20 years ago to the law of the land.
Workplace discrimination is clearly where the gay movement wants to pivot next. There is no federal protection against private anti-gay discrimination, and many states don't have laws against it either, so in 18 states gay citizens can get fired by their bosses for getting married. "A gay employee could be congratulated by a coworker for his upcoming nuptials and the next day find a pink slip on his desk," Robert P. Jones wrote in The Atlantic this June.
But the workplace push is largely based on the theoretical possibility—and a much earlier history—of discrimination: The fear is that unless a law explicitly prohibits an unwanted thing from happening, it will happen. Yet there's been a huge culture shift these past two decades in support of letting gay people live their lives as they choose. Big corporations with products to sell celebrated gay pride in June, openly marketing themselves to gay customers and their allies. So where is the evidence that anti-gay employment discrimination in 2015 is a widespread phenomenon requiring urgent government intervention?
Solid numbers aren't easy to come by. In 2007, the Williams Institute at University of California, Los Angeles, which researches sexual orientation and gender identity issues, aggregated a bunch of studies starting from the 1990s that rely on self-reported claims of workplace discrimination. The numbers vary widely, from 16 percent to 44 percent of gay people claiming everything from being denied jobs and promotions, to abuse or harassment, to unequal pay. But the institute itself warns about data based on self-evaluation.
The Williams report also looked at how many complaints have been received in states with laws against sexual-orientation discrimination. California, the biggest such state at the time, had all of 154 complaints throughout its history until 2002, compared to 8,232 complaints of gender discrimination. (Granted, the gay discrimination number would naturally be smaller because of the smaller population of gay and lesbian citizens.)
A 2011 study by a Harvard researcher used fake job applications, with some resumes boasting similar skills and experience, but differing by indicating involvement in a college gay group. It found a gap of up to eight percentage points in callback responses to candidates who indicated involvement in a gay organization when compared to the control group, depending on what state they were applying in.
What none of this social science can determine is a threshold over which it should be considered justified for the government to intervene in private employment practices. In general, libertarians and gay leaders have been united against anti-gay discrimination by government employers, such as the military. As the government answers to (and takes tax dollars from) all citizens, including the gay ones, the government should logically and ethically treat people the same regardless of sexual orientation.
But in the private sector, there should be something more than an ever-shrinking number of unpopular hiring decisions before asking Leviathan to step in. It used to be that the biggest enemy of gay people in the workplace was the federal government itself, which in past years actively purged gay employees from its rolls (and encouraged private contractors to do the same). As culture shifts, it would be more appropriate to use social media campaigns, boycotts, bad publicity, and other forms of influence to bring about changes in private sector hiring practices.
Another major divide between libertarians and many gay activists—with the American Civil Liberties Union (ACLU) and state-level civil rights commissions coming down on the latter side—involves religious business owners who don't want to provide their goods and services for gay weddings. We're now seeing additional concerns that religious colleges could be punished for not accommodating gay couples, and some have floated the idea that churches that pursue such policies shouldn't have nonprofit status anymore.