Liberals, progressives, and other left-leaning individuals have made discrimination a dirty word. Their crusade against all forms of discrimination in employment, in housing, in public accommodations, in private organizations, and in life in general is an attack on private property, freedom of assembly, freedom of association, free enterprise, and freedom of contract.
This does not mean, however, that conservatives are opposed to antidiscrimination laws and other government attempts to prevent acts of discrimination. Far from it. They are just very inconsistent and selective as to which acts of discrimination government should seek to prevent. This makes it very painful to read what most conservatives write about discrimination, even when they are mostly right.
At the beginning of last month, Richard Garnett, a law professor at Notre Dame Law School, penned the opening essay (“Protecting Equality or Correcting Thoughts?”) in a Law & Liberty symposium in which he discussed discrimination and the Supreme Court case of 303 Creative LLC v. Elenis (2022), which involved Colorado using its antidiscrimination laws “to require a graphic-design business to provide customized, expressive, wedding-planning services to a same-sex couple.” Responses to Prof. Garnett were then contributed by R. Shep Melnick, professor of politics at Boston College; Thomas Powers, professor of political science at Carthage College; and Jesse Merriam, associate professor of government at Patrick Henry College.
In a concluding piece (“The Use and Abuse of Antidiscrimination Law”) written by Garnett, he states:
Like Melnick, I do not regard antidiscrimination laws generally, or public-accommodations laws specifically, as impermissible intrusions or unwarranted interferences. Still, it matters that they are constructed and deployed in prudent, context-sensitive, and ideologically modest ways.
I agree [with professor Powers]; it is not productive — nor do I think it is desirable or defensible — to imagine strategies for eliminating all legal rules that prohibit or restrain access-limiting discrimination in certain contexts, on particular grounds, at least insofar as they do so in a way consistent with an appropriate respect for pluralism, the public-private distinction, and the bounded autonomy of non-state associations.
Here, too, we [Merriam and I] disagree: I think Congress had and has the power to regulate what that Act regulates, and I would insist that it is a stretch to characterize the Act as making “private, interpersonal conflicts a matter of national significance.”
I also think it is a mistake [of Merriam] — one that overlooks long stretches of grave injustice in the United States — to characterize appropriately focused public-accommodations laws as “managing associational decisionmaking.”
Political authorities’ egalitarian aims should be modest, proceeding with appropriate respect for the role and rights of non-state and pre-political institutions and societies.
The powers of government to superintend civil society can sometimes be valid, but they should have clear, jealously guarded limits.
So basically, he thinks the government should have antidiscrimination laws as long as they are limited, fair, and good.
And who decides if they are limited enough, fair enough, and good enough? Why, conservatives, of course.
Contrast this with the simple and consistent libertarian position on discrimination: Since discrimination — against anyone, on any basis, and for any reason — is not aggression, force, coercion, threat, or violence, then, as far as the law is concerned, the government should not proscribe it, seek to prevent it, or punish those who practice it.
So, what does libertarianism say about the latest attacks on discrimination? Here are two of them.
The owner of a hair salon in Michigan has announced that she will not provide services to transgender individuals. Christine Geiger, the owner of Studio 8 Hair Lab — “a private CONSERVATIVE business that does not cater to woke ideologies” — said: “If a human identifies as anything other than a man/woman, please seek services at a local pet groomer” because “you are not welcome at this salon.” Although Geiger maintained that she has no problem serving lesbian, gay, or bisexual people, she added that her stance “was taken to insure that clients have the best experience and I am admitting that since I am not willing to play the pronoun game or cater to requests outside of what I perceive as normal this probably isn’t the best option for that type of client.”
A spokesperson for Michigan attorney general Dana Nessel said the office has received “several complaints” about the salon and noted that any Michigan resident who experiences discrimination could file a report with the state’s civil rights department. Nathan Triplett, president of the American Civil Liberties Union’s Michigan chapter, maintained that “contrary to claims made by this salon owner,” refusing to serve someone because of their gender identity violates Michigan law.
In New York City, a recent law added “weight and height” to the list of characteristics protected from discrimination in employment, housing, and public accommodations “alongside race, gender, age, religion and sexual orientation.” Said NYC Mayor Eric Adams: “It shouldn’t matter how tall you are or how much you weigh when you’re looking for a job, are out on the town, or trying to rent an apartment. This law will help level the playing field for all New Yorkers, create more inclusive workplaces and living environments, and protect against discrimination.”
“Size discrimination is a social justice issue and a public health threat. People with different body types are denied access to job opportunities and equal wages — and they have had no legal recourse to contest it. Worse yet, millions are taught to hate their bodies. As the global beacon of tolerance, it is only right that New York City is leading the national effort to end size discrimination with the signing of this law today,” said New York City councilmember Shaun Abreu, who sponsored the law.
In a free society, however, any business owner would have the right to refuse to serve or accommodate anyone for any reason, including the right to not hire or house anyone for any reason.
In a free society, therefore, laws prohibiting discrimination based on race, color, religion, sex, or national origin should be considered just as absurd as laws prohibiting discrimination based on height, weight, sexual orientation, or gender identity.
