A Libertarian-Gay Divorce?

Government-sponsored discrimination is nearly eradicated. So what's left to work together on?

Jason Keisling

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.

Job Discrimination

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.

Religious Freedom

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.

The freedom to choose with whom to associate is a fundamental human right. The ability to engage freely in commerce is another one. As such, libertarians have always defended the ability of religious businesses and individuals to say "no thanks" to potential customers.

This is not just about faith. Religion happens to be the framework for this debate because the people who want to discriminate against gay customers are doing so while citing their religious beliefs. But any regulation that inhibits individuals' right to choose with whom they trade or do business needs to be treated as suspect. To justify restrictions on this freedom, the government has to prove that inaction would produce a significant amount of harm.

That's obviously not the case when it comes to the provision of marketplace goods. Nobody has presented a credible argument that gay couples are unable to buy wedding cakes or hire photographers. There is no actual "harm"—at worst, just inconvenience and insult.

When Mark Silverstein, ACLU legal director in Colorado, helped a gay couple sue a bakery that had declined to provide them a wedding cake, he asked: "If a business owner is allowed to simply cite personal beliefs as a basis for turning away same-sex couples, then what stops a doctor from denying medical care to the child of same-sex parents or a police officer from refusing to defend a church or a synagogue?" The proper response is that cops are prevented from discriminating by law, and doctors by professional oath. But beyond that, we have little reason to believe that most people want to discriminate against gay, lesbian, or transgender customers. The burden created by those who do is remarkably small and can be remedied without government intervention.

There was a time—and it was not so long ago—when many businesses and individuals who supported gay rights felt the need to contribute to the cause as secretly as possible so as to avoid adverse reactions from their straight customers. Flipping the switch on who gets punished for their beliefs, especially when the penalties are administered by the always-domineering state, is not justice.

Transgender Rights

With transgender issues, by contrast, libertarians and LGBT activists are closer to being on the same page. Transgender citizens—those who identify as a gender different than the sex they were assigned at birth—are seen by both groups as having the same right as everybody else to live their lives as they please without unnecessary government interference.

There's a lot we still don't know about how sex is expressed biologically, genetically, and psychologically. As a legal and ethical matter, though, it generally shouldn't matter why people identify as transgender.

So what is the government's role in recognizing individual gender expression? Ideally any official documentation, such as a driver's license, that lists a person's sex, should match the identity by which a person lives, as much as that is feasible. Probably of greater importance: In any situation where the government forces transgender folks to remain in the state's custody for a long period of time, from prison to public schools, it should accommodate their needs by respecting how they present themselves when­ever separating citizens on the basis of sex in everything from bathrooms to prison cells. People such as former Arkansas Gov. Mike Huckabee may tell jokes implying that transgender Americans have some sort of erotic advantage in locker-room situations, but within detention it is the transgender citizen who is more likely to be sexually assaulted.

Transgender people have recently seen big inroads in acceptance and accommodation, both culturally and legally. In June, a transgender activist heckled President Barack Obama at a gay pride event over the federal government's poor treatment of transgender immigrants. The gathered activists booed her and shouted her down for interrupting the celebration. But just days later, federal officials announced they will make an effort to detain illegal immigrants by their gender preferences.

It's one thing to ask the law to curb public discrimination. In the private sector, it needs to be a matter of cultural negotiation and voluntary agreements. The law should not be used to mandate the recognition of transgender needs, whether that means requiring health insurance companies to cover gender reassignment surgeries or forcing private businesses to accommodate bathroom choices. The reverse is also true: It would be inappropriate for the government to forbid insurance coverage for gender reassignment or to require private businesses to police their own bathrooms to keep transgender people out. (As is often the case in culture wars, different states have recently proposed laws both to mandate and to outlaw transgender-friendly bathrooms.)

Adoption

In June, Florida finally ended its ban on gay parents adopting children. This was mostly a symbolic gesture, since the courts struck down the law in 2010. It is now legal across America for gay people to adopt children (except in Mississippi, but that ban faces a strong legal challenge); and now, thanks to same-sex marriage, they can adopt a partner's child as well. This fight is largely over. Indeed, it was pretty much won before gay marriage recognition was even seen as a widespread possibility.

But there is another side to this story, and it ties back into the treatment of people of faith. Some adoption agencies are affiliated with religious groups that do not want to serve same-sex couples or place children in same-sex homes. Most of these groups receive state funding, and are therefore subject to state regulation. Should they be required to facilitate adoptions by gay parents?

Some states, such as Illinois, have attempted to force these adoption agencies to serve gays. As a result, Catholic Charities, which helped the state find adoptive and foster homes for children for four decades, stopped providing its services in 2011. At the time, Anthony Martinez of the Illinois Civil Rights Agenda declared this a victory, saying, "Finding a loving home for the thousands in the foster/adoption system should be the priority, not trying to exclude people based on religious dogma." But this statement is a huge misreading of how the adoption process works. The likely result is that some kids will have a more difficult time finding homes.

Walter Olson, a legal analyst for the Cato Institute, is a contributing editor at reason. He's also gay and the parent of an adopted child. In Olson's experience, the more agencies out there helping children look for homes, the better. The existence of Catholic Charities as one among a number of adoption agencies does not prevent gay couples from accessing the same pool of children through other agencies. Much as with the controversies over bakers and florists, being denied service by one agency does not prevent a gay couple from finding and adopting children. But eliminating Catholic Charities from the pool does reduce the number of people able to help place kids in homes. They children are the ones who are punished when adoption agencies leave a state.

This is especially important when dealing with older children or those with special medical needs, who are often hardest to find homes for. "There have been two groups of angels who have stepped in again and again" to adopt children in difficult situations, Olson explains: "the gays and the highly devout religious people." Children in the system do not gain anything by politicizing adoptions and preferencing one side over the other.

Olson acknowledges that many of these adoption agencies take taxpayer money, but he points out that it's much more expensive to leave children to be raised by the state, not to mention terribly cruel. "If you don't care about the kids or the families, at least care about the taxpayers," Olson says. But you should probably care about the kids, too.

Some teens in the system may be gay, and we want the system to be able to place them. But some kids in the system may be very devout themselves, and they also have a right to find a family where they fit. Fighting against religious adoption agencies doesn't create a better system. It hurts kids.

This is not an either/or scenario. A highly decentralized adoption process should cater to everybody without forcing out organizations guided by religious principles—even if such principles lead sometimes to overt discrimination.

Bullying in Schools

The past decade has seen increased attention on suicide rates among gay, lesbian, and transgender teens. It may seem counterintuitive that gay suicides could still be such a serious problem, given that American culture has become so much more of tolerant gay and transgender people than just a decade ago. But as a result of these cultural changes, we have teens coming out of the closet at a much younger age, at a time when they and their peers are still hammering out their identities and learning the intricacies of cultural navigation. Bullying is an outcome of this push and pull. It is not harmless, but it is normal.

Whatever we do to curtail bullying, therefore, needs to include the understanding that we are dealing with children on both sides. As with the other issues, libertarians think it dangerous to use the law to punish people—in this case, kids—when social tools are better suited to this battle. We should hold schools responsible for keeping students physically safe while in their custody. But before considering new policies meant to fight bullying, activists need to remember that public schools are already using terrible, oppressive disciplinary practices to discard students—often pushing them into the criminal justice system—at the first sign of trouble. The last thing we need is more "zero tolerance" policies. In fact, the federal government's own anti-bullying education materials warn that "suspending or expelling students who bully does not reduce bullying behavior."

While the gay movement has coalesced around concerns about bullied teens, thus far there is no sign of a single plan of action. Libertarians and the gay movement are not necessarily opponents here. Rather, the role of libertarians would be to discourage emotional, largely symbolic policies in which school districts purge troubled students rather than actually dealing with problems.

School choice can help. If a student finds himself in an inhospitable environment with an unhelpful administration (these two situations often run in tandem), rather than having to fight the school district over it, parents should be empowered to yank their kids out and find a better situation. Not only does such a system protect the emotional health of gay children, but because schools get money based on student attendance, it creates good economic incentives that push administrators to consider changes that don't involve potentially disastrous "one-size-fits-all" solutions.

What's to Come?

One month after Obergefell, Sen. Jeff Merkley (D–Ore.) and Rep. Dave Cicilline (D–R.I.) introduced the Equality Act to expand several federal anti-discrimination protections to include sexual orientation and gender identity. This bill is much broader than ENDA, encompassing not just employment discrimination but housing, lending, jury service, and public accommodations.

In addition to adding new categories to the Civil Rights Act of 1964 and the Fair Housing Act of 1968, the Equality Act would drastically widen what the federal government classifies as a "public accommodation." Federal law currently has a more limited definition than many states do, confining the phrase to cover hotels, food providers, gas stations, and entertainment venues. The Equality Act would add any business that provides "a good, service, or program," including transportation providers. Under the Equality Act, any business that has customers would count as a public accommodation, and therefore nearly any business in the United States could be subjected to federal sanctions for any form of discrimination listed in the Civil Rights Act. The Equality Act would also prevent the federal Religious Freedom Restoration Act from being used as a defense against accusations of discrimination against a protected class.

The goal, it seems, is to combine nearly every single matter of interest to the gay, lesbian, bisexual, and transgender communities into one big bill. This legislation clearly has little chance of passing a GOP-controlled Congress. But that probably isn't the point as we head toward what is looking to be a raucous 2016 election. The Equality Act has nearly 200 sponsors in Congress, all Democrats. Gay and lesbian rights could remain a campaign issue, but unlike in previous years, it will be the Democrats using it as a wedge issue, not the Republicans.

As the debate shifts from government treatment to private treatment, libertarians may find more alignment with the right in a culture battle that once put libertarians and conservatives on opposite sides. Even so, the truce is bound to be an uneasy one. Libertarians care more about restraining government authority over the individual than allegiance to anybody's "side." Support for the rights of religious conservatives to discriminate should not be taken as endorsement or encouragement for their goals or moral framework.

As a gay libertarian, I support the right of a baker to decline to produce a wedding cake for a same-sex couple, but don't expect me to buy so much as a cookie at their shop. And now that government-enforced oppression and discrimination is ending, I'd much rather see my peers embrace a world where we are all equally free to decide the terms by which we deal with each other, not one where we seize the same government powers that were once used to abuse us and use them to pummel our ideological opponents.