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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.