Libertarianism, just as much as “social conservativism” poses a danger for minority rights of all kinds. If you support the cause of gay marriage, anti-Jim Crow civil rights, etc., you should not be a libertarian. If you think homophobic laws are wrong, you should also think economically unequal social arrangements are just as bad. I’ll try to explain why.
The Lazy Media Narrative of “Economically Liberal and Socially Conservative”
The media coverage of the recent debate over legislation that would have allowed business owners to refuse serve to gay couples all seemed to agree on one thing, that can be paraphrased as follows: “this legislation and the argument over it highlights tensions within the Republican party between ‘traditional conservatives’ on the one hand and the ‘newly emergent libertarian wing’ on the other.”
Here’s a good example: this New York Times article from 2/28/14 says “…many libertarians do not embrace the typical conservative view on this issue.” The idea sounds plausible: there are some people – “social conservatives” who believe that gay people shouldn’t exist, or if they’ll allow them to exist, they shouldn’t have access to major social institutions like marriage, and everything that goes with the, because we shouldn’t “promote their lifestyle.” But, according to the conventional wisdom, those people are bad. Not to worry however, that’s not all the “big tent of the Republican party” includes: there are also supposed “libertarian” members of that party, and they are much more “socially liberal” even if they are also “economically conservative.”
Those on the libertarian wing act like those on the “social conservative” wing are backwards – and they’re probably right. But what the libertarian wing misses is that IT’S socially backwards too, just in a more hidden, and therefore more pernicious way. The more we allow people to say “yeah, but I’m a libertarian, I’m not one of those crazies,” the more we miss that their ideology is actually helping the crazies just as much, if not more.
“Economically conservative but socially liberal” is an unstable, inconsistent position: the gay rights issue allows us to see this clearly.
A pretty core libertarian position asserts that things like taxes and environmental regulations on businesses should be kept to a minimum or eliminated entirely. Why? Because they “restrict liberty.” I, as a small business owner, should be able to invest my capital how I see fit, regardless of whether it violates what you think is a good idea, like not causing global warming acid rain. And I, as a small business owner, shouldn’t have to pay a lot of taxes to support the “liberal welfare state,” again, a big statist attempt at social engineering that I may or may not agree with. For the most part, I should get to spend my money how I like. I’ve previously argued that this position itself is already incoherent – because my taxes actually do help pay for the system that allows my business to exist in the first place, but let’s set aside that argument for now. Let’s suppose that the libertarian preference for low taxes and minimal regulation has somehow been justified.
Next question: as a libertarian (which, to clarify, I AM NOT ONE OF THESE), should I have to serve a gay person with whom I disagree? Should I have to serve a black person whose presence offends me? For the libertarian, the answer HAS TO BE “no, I shouldn’t have to” to both of these questions. If it makes sense that a small business owner shouldn’t in general be subject to taxation or regulation that furthers social interests with which that business owner may not agree, then it also makes sense that that same small business owner should not have to serve members of minority groups (or anyone else) that he/she doesn’t want to serve. Libertarianism means tolerating racism and homophobia: in Arizona, in the Jim Crow south, wherever. And that’s a bad thing.
Discrimination is Something Libertarianism Can’t Object To – or Else it Will Cease to be Libertarianism (but would be a good thing)
The natural rejoinder here will be something like “but the small business owner has no right to discriminate.” I agree, but if this is true, I would argue, that small business owner ALSO has no right not to be subject to taxes or environmental regulations. All three of those obligations grow out of the social context in which being a business owner arises, and for libertarianism, social context is generally not the sort of thing that justifies restrictions.
The above-referenced New York Times article includes this snippet:
“This bill instinctively struck people as a violation of individual liberty,” said Ari Fleischer, a conservative who was White House press secretary under President George W. Bush. “The notion that because of your orientation or your religion that you can be denied food service because of someone else’s sincere religious belief went too far.”
Ari Fleischer appears to be making a reasonable point, right? Something seems “instinctively” wrong with this type of discrimination, that is not “instinctively wrong”, presumably, with ordinary libertarian opposition to tax laws and environmental regulations.
My argument can be roughly summarized as follows: the “instinct” Fleischer is referring to is actually a BIG PROBLEM for the libertarian-conservative side of things. The “instinct” that the government has a legitimate interest in the regulation of businesses for anti-discriminatory purposes comes from a place that, were it thought through consistently, would require that businesses be subject to all the other regulations that most libertarians find objectionable.
One of the most important passages in John Rawls’s A Theory of Justice says just this:
Even if [something like libertarianism] works to perfection in eliminating the influence of social contingencies [i.e., discrimination on the basis of race, gender, or sexual orientation], it still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents [it still allows economic inequality]. Within the limits allowed by the background arrangements, distributive shares are decided by the outcome of the natural lottery, and this outcome is arbitrary from a moral perspective. There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural assets than by historical and social fortune. (73-74 – my emphasis and brackets)
In other words, if you think it’s unfair to for people not to have access to resources because they are black, or because they are gay, you ALSO need to think it’s unfair for them not to have access to resources because they were born poor. Each is just as “arbitrary from the moral point of view.”
Discrimination is bad for the same reason environmental destruction and not helping poor people have health care are bad – they are damaging to people and others on this planet. And if “not damaging people and others on this planet” is something that falls within the legitimate purview of the government, and it can regulate businesses in that basis, then the libertarian arguments against each of these three kinds of restrictions -taxes, environmental regulations, discrimination against minority groups – all of these arguments stand and fall together. If you are really “socially liberal” you need to become “economically liberal” too, at least at the level of principle.
Another way to put this – if there really is a “right” for a gay person not to be discriminated against by a business (and I believe there is) that right most likely comes from a source that can also be used to justify the “rights” of people not to live in a world destroyed by acid rain, or the “rights” or people not to live in a world where they do not have access to health care because they are poor. And the business owner, insofar as he/she exists within a world that respects those rights, has to pay taxes, obey regulations and also not discriminate against his/her customers.
Not Expanding The Interstate Commerce Clause Means Racism, Homophobia and No Affordable Care Act
Another way to see this is to reflect on libertarian opposition to the expansion of the Interstate Commerce Clause in the constitution. The normal libertarian argument against this is that it should only be used to regulate commerce between states, but not commerce within states. Both Rand and Ron Paul (and their followers) are very fond of this argument. One of the big arguments against the Affordable Care Act (one the court did not accede to) was that the Interstate Commerce Clause would be unduly expanded by having an individual insurance mandate. This, it was argued, was an anti-libertarian restriction on individuals. The court, more or less, upheld that this use of the Commerce Clause was legitimate.
The commerce clause has come under fire from “traditional conservatives” too – back in the civil rights era. One of the first cases that ruled on the Civil Rights Act was Heart of Atlanta Motel vs. United States. Wikipedia’s summary of this case: “a landmark United States Supreme Court case holding that the U.S. Congress could use the power granted to it by the Constitution’s Commerce Clause to force private businesses to abide by the Civil Rights Act of 1964.”
Do you know what the Heart of Atlanta Motel was suing for? They said, roughly, “we should be able to refuse service to black people. The Civil Rights Act places a restrict on our commerce which does not fall under the purview of the Interstate Commerce Clause.” The Supreme Court disagreed, and desegregation of businesses and the dismantling of Jim Crow proceeded apace.
My argument is that it’s not a coincidence that the Interstate Commerce Clause was instrumental in both the Supreme Court’s decision to uphold most of the Affordable Care Act, and its decision to uphold the Civil Rights Actin back in 1964. In both cases, libertarian interests were seen as not as important as what I would call an interest in justice as fairness.
And just the same with Arizona: there is a legitimate public interest in forcing business owners to do ALL of the following:
- allow black people to say in their hotels
- pay taxes that fund social welfare programs
- follow environmental regulations to protect our planet
- sell gay people items for their weddings.
Note that 1 and 4 are issues we typically connect with “socially liberal”, and issues 2 and 3 we typically connect with being “economically liberal.” My argument is that they all come from the same place: an insistence that our world be ordered along the lines of justice, whether economic or social. If you want to be a libertarian, in other words, you may have to tolerate racism and homophobia, whether you want to admit it or not. And if you want NOT to tolerate racism and homophobia, you might want to consider not being a libertarian.
And – let’s all stop giving free passes – in the media or in our own lives – to that most obnoxious of pseudo-political cocktail party distinctions “I’m economically conservative but socially liberal.” You’re not – you’re just selfish and wanting to disguise that selfishness behind a facile distinction.