Is This Where Libertarians and the Gay Community Part Ways?
With little government-sponsored discrimination permitted in the United States any longer, what's left that both groups agree upon?
Just one day before the Supreme Court ruled that states must recognize same-sex marriages, Cato Institute's Executive Vice President David Boaz took to the website for gay publication the Advocate to inform readers about libertarians' and the Libertarian Party's lengthy historical support for gay rights. Libertarian Party support for ending the criminalization of gay behavior and for treating gay people equally under the law goes all the back to its first platform back in the 1970s.
In the 40-some-odd years since the Libertarian Party took such positions, we've seen the end of sodomy laws, the end of officially sanctioned government discrimination against gay employees, both civilian and military—and with Obergefell v. Hodges, the end of government bans on same-sex marriage recognition. We've seen the end of just about every government policy that treats gay and lesbian citizenry as somehow less than the heterosexual citizenry.
So: Is that it, then? Have supporters won, after all this time? Should we move on to other issues of liberty?
Some gay activists are warning that no, there is still work to be done. There are other issues of concern that affect the gay, lesbian, and transgender community. Top gay activist Michelangelo Signorile, predicting the gay marriage ruling and the subsequent celebrating, wrote a book-sized warning, titled It's Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality. Even before the ruling, "What comes next?" analyses started popping up in the media.
But just because libertarians and gay citizens were aligned in the pursuit of ending government mistreatment, that doesn't mean other goals line up. Libertarians draw that bright, hard line between government behavior and private behavior. Others often do not, and what many gay activists see as justice and equality in the private sector, libertarians see as inappropriate government coercion.
Now that government gay marriage recognition is a settled matter, it's worth taking an inventory of political issues frequently raised within the LGBT community to see where values line up and where the fractures are.
Employment Nondiscrimination. Historically, fighting employment discrimination was actually the big political cause for gay leaders, not marriage recognition. There is a certain logic behind it: One would think that it would be easier to convince Americans not to discriminate against gays than to convince them to let gays marry.
But it hasn't worked out that way in the real world. The federal Employment Non-Discrimination Act, introduced and reintroduced in Congress repeatedly over the last 20 years, has not passed. This is where gay rights supporters clearly want to pivot to next. The talking point is that there is no federal protection against anti-gay discrimination, and many states don't have their own laws. What this means is that, in 18 states, gay citizens can get fired by their bosses for getting married. At The Atlantic, Robert Jones presents this as a theoretical possibility.
But is that a realistic evaluation of outcomes? A lot of the push for employment nondiscrimination laws is based upon the possibility of discrimination, based on historical trends, not the reality of the current climate. There's a fear that because the law allows an unwanted thing to happen, then it's going to happen. But there's been a huge culture shift in support of the letting gay people live their lives as they choose. Big corporations with products to sell have been celebrating gay pride in June and marketing themselves to gay customers. From the perspective of a libertarian, where is the evidence that anti-gay employment discrimination is an actual, widespread phenomenon that is not lessening on its own and requires government intervention?
Solid numbers aren't easy to come by. It's not easy to determine whether somebody is actually discriminated against for being gay or transgender unless the employer is honest about it (and sometimes they are). The Williams Institute, which researches sexual orientation and gender identity issues at UCLA, has aggregated a bunch of studies starting from the 1990s that rely on self-reported claims of workplace discrimination. The numbers vary extremely widely, from 16 percent to 44 percent, making it a challenge to look at the report and to come to any real conclusions. They warn about the limitations of the studies that because those polled are relying on their own evaluation of workplace discrimination that may or may not exist (and the reverse could also be true—employees may not even know if they've been discriminated against due to their sexual orientation).
The report also looked at how many complaints states that had actual laws against discrimination on the basis of sexual orientation actually received. When the report was written in 2002, California, the largest state, had all of 154 complaints, compared to 8,232 complaints of gender discrimination. Granted, the number would naturally be smaller because of the smaller population of gay and lesbian citizens. A more recent study using fake job applications found a gap in positive employer responses, ranging from none up to 8 percentage points in some states, between candidates who indicated involvement in gay organizations on resumes and those who did not.
What none of this social science can determine is a threshold through which it should be considered justified for the government to intervene in private employment practices. In general, libertarians and gay leaders have been in agreement against anti-gay discrimination by government employers and by 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 has got to be something more than a bunch of unpopular hiring decisions before turning to the leviathan to punish bad actors under the color of law. It used to be that the biggest enemy of gay people in the workplace was the federal government itself. As culture shifts, it would be more appropriate to use influence in the private sector to bring about changes in private sector hiring practices. There is little reason to fear that a mass firing spree will be the result of a growing public support for gay and lesbian citizens living their lives as they please. When it does happen, we have a lot of cultural tools—social media, boycotts, bad publicity—to press for reform without calling for government sanctions.
Religious Freedom Exemptions. Even more than anti-discrimination employment laws, there is a significant philosophical divide between libertarians and many gay activists, the American Civil Liberties Union (ACLU), and state-level civil rights commissions over the responses to religious business owners not wanting to provide their goods and services for gay weddings. We're now seeing additional suggestions that religious colleges could be punished for not accommodating gay couples, and even an early suggestion that churches should not have non-profit status any longer.
The freedom to choose with whom to associate is a fundamental human and Constitutionally protected right. The ability to engage freely in commerce another one. Anybody with any doubts about the importance of free commerce to human liberty is encouraged to ask a nearby Venezuelan about the alternatives. As such, libertarians have consistently been supporting the rights of religious businesses and individuals to say "No thanks" to potential customers.
To be clear, though: This position is not entirely about religion. That happens to be the framework for this debate because the people who want to discriminate against gay customers are doing so for religious reasons. The practice of religion, also a fundamental right, is deeply tied into how some people express with whom they associate and what business practices they endorse. As long as these individuals do not violate the rights of others, they should be free to do so.
A wedding cake is not a right. A wedding photographer is not a right. Everybody has the right to engage in commerce. We have the right to buy and sell our services and goods, but it must be voluntary on both ends of the exchange. Nobody has the right to force the baker, the photographer, or anybody else to work for them in a free country. The exchange of money doesn't make it acceptable.
When defending accommodation laws used to force religious people's hands, the response tends to be something along the lines of "A business is not a church. If religious folks want to run a business, they can't use their beliefs to ignore the law. Those who choose to run a business have to follow all the government regulations."
This argument flips the idea of civil liberties completely on its head and attributes the source of our rights to the government, a contradiction of the spirit of our own Constitution. If somebody said "If people choose to speak out they have to follow all the government regulations," most people would immediately wonder: "What sort of regulations are we talking about? We have freedom of speech. The government can't just pass any regulations they want to control what people say."
The same should hold true for people's right to engage in commerce. Any law or regulation that inhibits the right of individuals to choose with whom to associate needs to immediately be treated as suspect. In order to justify restrictions or mandates on this freedom, the government should be required to prove that a significant amount of harm is the result of inaction.
That's obviously not the case here. Nobody has presented a credible argument that gay couples have been completely unable to buy wedding cakes or rent photographers. There is no actual "harm"—just inconvenience. The vast majority of businesses across the country are more than happy to serve gay citizens. A handful of holdouts in non-essential services is not a good reason to bring to bear the full force of government to fix. It is callous and selfish to use the state to go after small businesses and try to extract fines from them or shut them down over a problem that barely even exists anymore. It is very clearly an effort to punish people for holding disfavored opinions or positions, something that used to happen with great frequency to gay people and their allies. Flipping the switch on who is punished by the state is not justice. Turning the machine off entirely is what we should all be calling for. On this issue libertarians will likely continue to stand with the religious holdouts for the foreseeable future, even if it's on "the wrong side of history." It's on the right side of liberty.
Transgender Recognition. While libertarians may be splitting with the gay and lesbian community on issues of discrimination and religious freedom, there's still many issues that need to be resolved over the way the federal government treats transgender people.
Fundamental to liberty is the right to personal identity and expression. This includes gender. Transgender citizens have the same right as everybody else to live their lives as they please without unnecessary government interference. There's a lot that we still don't know about how gender is expressed biologically, genetically, and psychologically. Those are issues for science to explore. As a legal and ethical matter, though, it generally shouldn't matter why somebody identifies as transgender. It's their right. In the event that somebody decides to pose as transgender in order to engage in some sort of fraud or criminal behavior, there are already laws to punish such actions. But there's very little evidence that anybody identifies themselves as transgender in order to spy upon or harass other people in vulnerable locations like bathrooms or locker rooms. It is a paranoid response to the unfamiliar "other."
And so it would be appropriate that in any situation where the government treats a transgender person on the basis of his or her identity it respects their form of gender expression. That means the government should allow for any official documentation—such as a driver's license—that requires the listing of a person's sex to match the identity by which a person lives, as much as it's feasibly possible.
Probably of greater importance, in any situation where the government is forcing transgender folk to remain in their custody for long periods of time, be it prison, immigration detention, or simply public schools or jury duty, their needs must be accommodated. Contra some people's fear that transgender folks are targeting them for some sort of sex crime, when in government detention, the transgender citizen is more likely to be targeted for sexual assault in prison or government detention.
Transgender citizens are seeing some big inroads both culturally and legally, and we should all see these generally as positive developments. Last week, a transgender activist heckled President Barack Obama at a gay pride event over the federal government's poor treatment of transgender immigrants. She was booed and shouted down by the gathered gay activists. But just days later immigration officials announced they will make an effort to try to detain transgender immigrants who end up in their custody by their gender preferences.
All of the previous positions are about the relationship between transgender citizens and the government. The libertarian trend of separating government and private treatment continues here. Transgender citizens have the right to demand the government treat them fairly and with dignity. In the private sector, it's all a matter of cultural negotiation and voluntary agreements. The law should not be used to mandate private recognition of transgender needs, whether it's requiring insurance companies cover gender reassignment surgeries or requiring private businesses to accommodate their bathroom choices. The reverse is also true: It would be inappropriate for the government to forbid insurance coverage or to require private businesses to police their own bathrooms to keep transgender folks out.
As long as the transgender community is focusing on how the government is treating them, libertarians should support their activism. But change in the private sector is manifested by cultural and social engagement, not yet more laws.
Adoption. Earlier in June, Florida officially ended its ban on gay parents adopting children. It was mostly a symbolic gesture. The courts actually struck down the law down in 2010. It is now legal all across America for gay people to adopt children, and now with same-sex marriage, they can adopt their partner's child as well. This fight is largely over, and was actually pretty much won even before gay marriage recognition.
But there is another side, and it ties back into the treatment of religious people. Some adoption agencies are tied to religious groups who do not want to serve same-sex couples or place children in same-sex homes. They are also typically recipients of state funding for placing children, and are therefore subject to state regulation. Should they be required to serve gay couples?
Some states, such as Illinois, attempted to force them. As a result, Catholic Charities, which helped the state find adoptive and foster home services for four decades, stopped providing their services in 2011. At the time, a gay activist 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, and the agency's closure probably ended up making it harder for some kids to find homes. For some insight, we turned to Walter Olson, a senior fellow from the Cato Institute and a contributing editor to Reason. He's also gay and the parent of an adopted child.
In Olson's experience, the more agencies out there serving the needs of the children looking for homes, the better. The existence of Catholic Charities in the pool of adoption agencies does not prevent gay couples from accessing the same pool of children looking for homes through other agencies. Much as with the controversies over bakers and florists, being denied service by one agency does not actually impact a gay couple's ability to find and adopt children at all. But eliminating Catholic Charities from the pool reduces the number of people able to help place these children. It's the children who are punished by the politicization of adoption, not Catholic Charities. This is especially important when dealing with older children or children with special medical needs.
"There have been two groups of angels who have stepped in again and again," to adopt children in difficult situations, Olson explained. And those groups are "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. Allowing both sides (and others as well) to play their role as they see fit benefits all children in the system.
As for the concern that some adoption agencies take taxpayer money and then discriminate, Olson points out that it's much more expensive to the taxpayers 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 also be very devout themselves, and they have as much a right to find a family where they could fit. Fighting against religious adoption agencies doesn't create a better system. It hurts kids. This is not an either/or scenario. Our highly decentralized adoption process can cater to everybody without forcing out organizations guided by religious principles, even if such principles lead to overt discrimination.
Bullying in Schools. For the past decade we've seen increased attention to the suicide rates of gay, lesbian, and transgender teens. It inspired Dan Savage's "It Gets Better" video project. It may seem counterintuitive that gay suicides could still be such a serious problem, given that American culture has become so remarkably more tolerant to 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 where they and all 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.
As such, whatever is done to try to curtail bullying needs to be managed with the understanding that we are dealing with children on both sides of the issue. There is a danger when we look at bullies from the viewpoint of an adult and judging them as though they're adults.
The libertarian concern here is, just as with the other issues, using the state or the law to punish people—in this case, children—when there are better social tools for this battle. We should hold schools responsible for keeping students physically safe while in their custody. But before considering new policies or laws with the intention of fighting bullying, activists need to remind themselves that public schools now have absolutely terrible, oppressive disciplinary policies that they use to discard students at the first sign of trouble. The last thing we need is more "zero tolerance" policies. As it stands, we have children and teenagers being arrested by police for common school misconduct and their families forced to deal with costly and time-wasting court systems. It is an absurd outcome that actually threatens children's futures. It does not protect them.
In this case, school choice is a benefit to gay teens. If a student finds himself in an unhospitable 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 environment for their kids. Not only does such a system protect the emotional health of gay teens, it creates the appropriate economic incentives (because schools get money based on student attendance) to push schools to consider changes that don't involve potentially disastrous "one-size-fits-all" solutions.