The right to discriminate?-it buggers me!
Some time ago in response to the move in the state of New Jersey to regulate conduct toward homosexuals I wrote the following rambling piece which tries to think about the interplay between liberty and social policy. When should one trump the other? After a while, I get around to talking about it in the context of race.
Here is the piece:
This should be viewed not as a matter involving the right to discriminate against homosexuals but as an example of the police power of the state being invoked to extort sanctioned behavior and money from the politically incorrect. If you are politically correct, such as the African-American race represented by somebody like Jesse Jackson, you can extort money and behavior out of businesses by threatening to enlist the civil and criminal power of the state on your side.
If you are the Southern Poverty Law Center you can bankrupt the politically incorrect (Ku Klux Klan) through the vehicle of a class action RICO suit.
This matter is much more dangerous because it involves agents of the state, the Attorney General of New Jersey, directly in a blatant extortion. Why should the law have an interest in whether private enterprise provides separate but equal services to homosexuals? The answer is because the homosexual lobby has succeeded in writing statutes which prohibit discrimination against homosexuals. This sounds reasonable on its face, after all we prohibit discrimination based on sex, age, religion, ethnicity and race.
The rationale for these laws is that the discrimination is irrational as well as harmful. It is irrational because it assumes that every member of a class always behaves in a manner consistent with the stereotype of that class. Thus, if we fail to hire members of a given race because we think those people are shiftless, feckless, or dangerous, we might be right in our judgment as far as a statistical majority of that race is concerned. But the stereotype will never apply to 100% of the individuals in the race. There will always be individuals who break free of the stereotype, just as I intend someday to prove on the dance floor.
So from a sociologist's or a statistician's point of view, discrimination based on race is irrational. But it might not be irrational from a business point of view. If, for example, an employer believes that one race that is statistically more prone to crime than another, an easy way to eliminate a source of employee crime is to avoid hiring individuals of that race. It's a very cheap screening process which, although not perfect, reduces risk at no apparent cost to the employer except perhaps in missed opportunity costs because he passed over a superior individual who performs counter to the stereotype. There may be other very rational reasons for employers to commit racial discrimination such as customer acceptance, and co-employee acceptance, to name a couple. But the law prohibits this kind of discrimination.
The law prohibits it ostensibly because politicians have calculated that the harm done to the individuals so stereotyped, whether rightly or wrongly, far outweighs any advantage devolving to employers who practice discrimination. This is a judgment call, a value call, made by politicians and imposed on society. The politicians have said: we arrogate unto ourselves the sole right to make this judgment and forbid you from making this very same judgment on penalty of criminal sanctions. We do not care whether your business sense tells you it is rational for you to discriminate based on race, we tell you that the societal cost is too high; our value trumps your value; nor do we care that we are depriving you of liberty when we deprive you of the right or power to discriminate; as a matter of fact, politicians will routinely say that there is no liberty to discriminate based on race because the act is so heinous. Again, this is a value judgment. When the emotion is wrung out of the issue, we must concede that the liberty of the employer is sacrificed to accommodate a more favored value.
Interestingly, the law permits one to discriminate based on race in the choice of a spouse. Evidently, society considers it a higher value to respect the liberty of the bigots who refuse an offer of marriage based solely on race than to require them to marry. On the other hand, the law has said that society may not prohibit miscegenation and must respect the liberty of people to marry who decline to discriminate against a suitor based on race. Not too many years ago the failure to discriminate was considered criminal by some jurisdictions. (Anti-miscegenation statutes overturned by the Supreme Court in Loving V. Virginia, 1967). So that which the employer may not do is absolutely ok for the lover to do, in fact, society may not interfere with the lover bent on doing that which is criminal if done by an employer. Clearly, the idea of legally prohibiting discrimination is a moving target as values shift up and down the scale depending on the circumstances and the ebb and flow of political correctness.
So I have lost my liberty as an employer to discriminate on the basis of race but in nearly the same time frame I have gained liberty to marry without being forced to discriminate on the basis of race. I have also retained a liberty to decline to marry because I choose to discriminate on the basis of race.
Well, this is certainly going to get complicated. First, it is not clear whether or not the law compels me to discriminate on the basis of sex when I marry. It has recently become more clear by virtue of the Supreme Court case Lawrence v. Texas (2003) that I have liberty to discriminate on the basis of sex about whom I might choose to (yuck) sodomize. In other words, the state cannot prohibit me from sodomizing someone of the same sex providing I do it in private (the old "don't frighten the horses" test). So in the ever cascading values game, I am at liberty to sodomize whom I please but in about 48 jurisdictions at my last count I am not at liberty to decline to discriminate in marriage against persons of my own gender. The law compels me to discriminate against them if I want to marry them but not if I just want to bugger them.
Evidently, the Supreme Court permits buggery in private because it places a high value in the right of privacy. The Supreme Court so far has not chosen to invalidate laws against homosexual marriage, presumably because it does not value the right of homosexual marriage as highly as it does the right to bugger in private.
But fixing on privacy as the key to understanding these distinctions comes a cropper if I try to invoke the doctrine to permit me to bugger either sex when the objects of my attention are underage. Apparently, the need to protect the underaged from my perversity is greater than the interest society has in safeguarding my right to sodomize in private.
The point of all this is not just to demonstrate that the law weighs one value against another and almost always prefers one value over another. The point is that to prefer one value over another is another way of saying that someone just got deprived of liberty. It is important that we do not let leftists change the subject. It may be perfectly good to deprive bigots of the right to discriminate but let not our indignation over discrimination based on race becloud our understanding that we are sacrificing liberty for some other value which might be very important to the person deprived. This can become significant when one takes the next step and deprives an innocent person who has not engaged in discrimination of equal opportunity to obtain jobs or academic placement. Liberals get away with depriving these innocents of the equal protection of laws because they have succeeded in shutting off the idea of liberty and the need always to preserve it.
It is not really fashionable today to talk about liberty. In fact, we have come to the place where it is politically incorrect to talk about liberty in the wrong context.
In the context of housing and, generally, the right to freedom of association, it seems to me that a corollary duty arises in the state to protect the individual when it forces him against his will to associate with those whom he would rather discriminate against. That is why there was so much guerrilla resistance that ultimately prevailed in Massachusetts against busing kids to school. The parents felt their kids would be vulnerable. That is why we have white flight, because citizens feel the state does not keep them safe in a mixed race environment.
When liberals turn society into a giant Skinner Box and people into rats in an experimental laboratory, the people naturally become resentful, especially when they believe themselves made vulnerable by policies that they do not accept are in accord with the witness of their own eyes. Their eyes tell them that African-American ghettos are dangerous places but liberals conducting social experiments using the law deny these people the right to act on the evidence of their own eyes. More, they fail to provide protection against the very ills feared by the people who are the rats in the liberals' Skinner box. Worse and most galling, the liberal elites hypocritically insulate themselves from the risks associated with the laws used to box in the people as they frame their social experiments.
So long as the question is seen as one of bigotry rather than liberty, many people will feel themselves buggered by a government blind to the evidence of their eyes.
