Responding to Criticism On My Letter to Rand Paul On Gay Rights

As many of you know, I am not a libertarian, though I tend to lean libertarian on several issues (criminal justice, the war on drugs, foreign policy, marijuana reform, gay marriage comes to mind). Having received a shit storm on this issue following the publishing of my letter to Rand Paul, I am here to clarify a few things.

First, all I am saying is that nobody should be fired for being gay; when I saw the video of Rand Paul I got angry and wrote this article in its stead. I’m not backtracking against my comments, but I do need to clarify I was hot headed. Second, Rand Paul himself said that it wasn’t right to fire or hire someone based on their sexual orientation, which I agree with. I don’t believe that we need to give rights to people based on their behavior; I believe they need to have the same rights as everyone else in society.

Third, I understand that libertarians (at least the ones I interacted with), love property rights. Many argued against me is that people should be free to discriminate against whomever they want; however the free market regulates itself and those who are being bigots will be run out of business because…well they’re assholes and deserve to be out of business. While it is a beautiful concept in theory, I have hesitations about its validity.

This is because of the Civil Rights Movement and the Civil Rights Act of 1964. The movement began as a response to state sponsored racism and segregation. The Civil Rights Act was one of the many pieces of legislation that resulted in this racism de jure becoming illegal. But the Civil Rights Act also prohibited discrimination in private businesses from Title II and Title VII, which gets a lot of libertarians riled up I assuming. As one person said to me on Facebook, it’s been “thrown out as useless in libertarian circles.” It took a Supreme Court case to establish the constitutionality of it in Heart of Atlanta Motel v. United States in 1964, which resulted in the Court deciding unanimously to uphold the constitutionality of the Civil Rights Act.

I support getting the federal government out of your homes, not defining what marriage is, not imprisoning non-violent drug offenders for years at a time, and other things, but ensuring that de jure racism and segregation ended required federal action. Government should not “legislate morality” as Goldwater said back when he voted against the Civil Rights Act back in 1964. I agree; government cannot legislate morality, but at the same time it has an obligation to its citizens to protect everyone’s rights. Gay people aren’t asking for a place to high status above the rest. They believe that they should be able to live their lives without being fired by a bigot boss. And I agree with them.

However, I also read Joe Trotter’s The Bigotry of the Free Market article published a few months ago back in April. Trotter argues that government intervention isn’t what is needed to fight back against bigotry and racism; wholesale change comes from the change in public opinion, which leads to the collective of the majority shunning these people for their views. In other words, avoiding these institutions who are known to be openly racist and bigoted towards certain groups is good for gay activists and the majority of society.

While I agree with the government not allowing for the discrimination of anybody based on their personal lives, I also agree with the power of society’s shifting opinion. This was what allowed for the Civil Rights Movement to take off, along with continued acceptance of gay marriage and gay people in general. Anti-discrimination laws were needed back in the 1960s and maybe even today, but laws regarding hate speech, freedom of association are not. Wholesale change didn’t come from government but from the people themselves. Maybe it is time for government to leave the morality issue of anti-discrimination to the people considering we are much more accepting of all people than we were fifty years ago.

Libertarians have a point. I see that now and I aim to continue to expand my understanding.

There is also an argument here for tort reform against frivolous lawsuits. (But’s that a different story.)

On one hand, I think that the Civil Rights Act of 1964 did a lot of good for the country and some libertarians agree with some parts of it; they are just against Title II and Title VII. On the other hand, society changing as a result of shifting public opinion, the Civil Rights Movement and the shift in discussing gay people from people with mental illnesses to equal members of society, is a powerful argument. John Locke said in An Essay Concerning Understand that “There cannot any one moral rule be proposed, where of a man may not justify reason.”

In the end government cannot be discriminatory towards gay people, such as jailing them for being gay, or firing them in the federal or state workplace, but in private institutions and businesses, libertarians do have a point about the power of the free market. Let’s wait and see. If someone is fired for being gay, then let us see what the force of the free market exerts. Gay marriage is law in part because of the rapid switch in public opinion in just eight years.

But let’s see what has happened in the business community. The power of the free markets have led to, according to Fortune in October of 2014, “91% of Fortune 500 companies include sexual orientation protections. Seventeen years ago it was 5%.” That’s according to Selisse Berry, founder and CEO of the nonprofit Out & Equal.

That’s the power of the free market at work. Federal law already protects LGBT on a governmental level. And apparently the private sector is working hard to stamp it out in their own sector.

Hmmm…lots to think about. Thanks for the arguments guys.