On Sept. 8, Rep. Robert Pittenger (R-NC) was asked by ThinkProgress’ Alice Ollstein after a town hall meeting in Ballantyne about whether he supported laws to protect gays in the workplace. He responded, “You need to respect the autonomy of somebody running their business. It’s like smoking bans. Do you ban smoking or do people have the right to private property? I think people have the right to private property. In public spaces, absolutely, we can have smoking bans. But we don’t want to micromanage people’s lives and businesses. If you have a business, do you want the government to come in and tell you you need to hire somebody? Why should government be there to impose on the freedoms we enjoy?”
This statement led to predictable outrage from leftist activists, bloggers, and newspaper editorial boards. “Rep. Pittenger’s ill-informed opinion is also not consistent with the fair-minded opinion of most Americans,” said David Stacy, government affairs director for the Human Rights Campaign, a gay rights organization. “The vast majority of Americans back commonsense workplace protections for LGBT Americans.”
Below, I will make the case that such an opinion is not ill-informed (even if ill-stated and ill-defended by Rep. Pittenger) and is consistent with libertarian philosophy.
The first order of business is to define what is meant by discrimination. The dictionary definition of discrimination is “the practice of unfairly treating a person or group of people differently from other people or groups of people.” The only problematic part of this definition is the word “unfairly,” which could be (and has been) used to twist the meaning of discrimination in an arbitrary fashion. After all, who decides what is fair or unfair? Those involved in an interaction, or someone outside the interaction? If the latter, then what gives them legitimacy to say what is fair or unfair? Ultimately, fairness is subjective because values and opinions are subjective. The only objective consideration concerning fairness in libertarian philosophy is whether an action is consistent with the non-aggression principle. Therefore, discrimination for the purpose of this essay will be defined as “the practice of treating a person or group of people differently from other people or groups of people without violating the non-aggression principle.”
The second task is to construct a logical framework for the right to discriminate. This is a rather straightforward task. The right to discriminate against any person for any reason is part and parcel of the right of freedom of association. In order to argue against freedom of association, one must exercise freedom of association toward the recipient(s) of one’s argument. Therefore, any argument against freedom of association contains a performative contradiction which falsifies the argument. As an idea which cannot have a valid argument against it must be true, freedom of association is a valid right which should not be violated.
The other right which comes into play when discussing discrimination is the right to private property. Private property is rightfully established by mixing one’s labor with unowned natural resources. This comes from being responsible for the consequences of one’s actions, which in turn comes from ownership of one’s physical body. In order to argue against ownership of one’s physical body, one must exercise exclusive control of one’s physical body (to write, speak, type, etc.), which only a rightful owner legitimately may do. Therefore, any argument against ownership of one’s physical body contains a performative contradiction which falsifies the argument. Thus, ownership of one’s physical body is a valid right which should not be violated, as are the corollaries thereof, such as private property rights.
So far, we have a logical case that no one, including an agent of the state, should interfere with private property or freedom of association. Effectively, this means that no one should initiate the use of force to prevent discrimination. (This, of course, does not equate to a case for why people should exercise their right to discriminate on the basis of sexual orientation, race, gender, age, or any other basis; it is only a case for why they should be allowed to do so.) But although discrimination is allowed under libertarian philosophy, it will be discouraged by market forces. In a free market, bigots are punished because they relinquish customers and employees who have the traits against which the bigot is prejudiced as well as customers and employees who are sufficiently offended by said prejudice to ostracize the bigot. This is more than a linear relationship, as those who cannot or will not obtain goods, services, and employment from the bigot will be likely to do so from other providers who are not bigoted rather than do without. This will not only impoverish the bigot, but enrich his competitors. The eventual result is that bigots cannot compete with those who are not bigoted, and must either renounce their bigotry or go out of business.
At this point, statists may protest that the above free market scenario has not played out, and that government intervention is therefore necessary to stop discrimination. Of course, this violates logically proven rights, but statists tend not to understand or care about this; otherwise, they would not be statists. The Charlotte Observer Editorial Board asked whether Rep. Pittenger would find it acceptable to fire an employee for being black, so let us consider the history of that case. Prior to the Civil Rights Movement, Jim Crow laws forced many business owners not to serve customers or hire employees whom they would have served or hired otherwise. Since that time, anti-discrimination laws have forced many business owners to serve customers and hire employees whom they would not have served or hired otherwise. In both cases, force has been used to interfere with the market to keep voluntary methods of dealing with bigotry from being tested. To claim that voluntary methods cannot work while supporting laws that prevent voluntary methods from having a chance to work is logically inconsistent.
One must also remember the role that government has played in indoctrinating children with racist beliefs. The racists who held political and business positions in the 1950s and 1960s would have been schoolchildren in the 1920s. Let us consider an example of what they were taught. This excerpt comes from Civic Biology (1914). (If the book sounds familiar, it is because it was used by John Scopes to teach evolution in Tennessee in 1925, leading to the Scopes “Monkey” Trial.)
“The Races of Man. — At the present time there exist upon the earth five races or varieties of man, each very different from the other in instincts, social customs, and, to an extent, in structure. These are the Ethiopian or negro type, originating in Africa; the Malay or brown race, from the islands of the Pacific; The American Indian; the Mongolian or yellow race, including the natives of China, Japan, and the Eskimos; and finally, the highest type of all, the Caucasians, represented by the civilized white inhabitants of Europe and America.”
With this sort of racism being taught to children in public schools, it is no wonder that a large number of them would grow up to be racists.
Another important aspect of government laws is that they frequently have unintended consequences that harm the people they are intended to help. For example, when an anti-discrimination law prohibits firing an employee for having a certain characteristic, an employer is less likely to hire people with that characteristic because it is too difficult and troublesome to fire such people if they are incompetent, as they can claim that they were fired for a legally prohibited reason and make trouble for an employer.
More generally, the belief that an action cannot be performed solely because it has yet to be performed constitutes a logical fallacy. The assertion that the free market cannot effectively deal with bigotry simply because there is not yet an empirical example of the exact outcome described above is such a fallacy (as well as an ipse dixit fallacy.)
The other criticism typically levied against libertarianism in this regard is that it is just a cover for bigotry. This criticism is easily dismissed. Libertarianism is a philosophical position on what constitutes the legitimate use of force. It says that initiatory force is never justifiable and defensive force is always justifiable. Libertarianism says nothing about bigotry one way or the other, as long as that bigotry does not involve initiatory force. To claim that a philosophy defends a certain position simply because it does not attack that position is a false dilemma fallacy. That being said, even if it were true that libertarianism is a cover for bigotry, this would actually produce good results. If bigots would become libertarians, then they would have to abide by the non-aggression principle. This means that they would stop initiating the use of force and advocating for politicians to do so on their behalf in order to advance pro-bigotry agendas. Therefore, bigots will do less damage to other people if they become libertarians.
It is thus clear that while Rep. Pittenger’s defense of his position was rather inept and his comparison between discrimination against LGBT people and discrimination against smokers is problematic, the opinion that discrimination should not be legally prohibited by the state is not ill-informed or illogical.