When Should Discrimination be Allowed?

When our first reaction is to bring in government, we stop asking the hard questions.

Trevor Burrus
Research Fellow, Constitutional Studies

Trevor Burrus is a research fellow at the Cato Institute’s Center for Constitutional Studies. His research interests include constitutional law, civil and criminal law, legal and political philosophy, and legal history. His work has appeared in the Vermont Law Review, the Syracuse Law Review, and the Jurist, as well as the Washington Times, Huffington Post, and the Daily Caller. He holds a BA in Philosophy from the University of Colorado at Boulder and a JD from the University of Denver Sturm College of Law.

The hubbub over Indiana’s Religious Freedom Restoration Act (RFRA) has reached a fevered pitch. As is often the case with debates like these, the law is horribly misunderstood, there’s a lot of unnecessary shouting, and, in the end, everyone is just signaling their tribal allegiances.

Maybe we can learn something from this signaling war. RFRA is being attacked for allegedly allowing religiously motivated discrimination based on sexual orientation, and libertarians often get bludgeoned with questions about discrimination.

So let me bludgeon with a question of my own: Under what circumstances should people be allowed to discriminate? What traits should people be allowed to discriminate against (or for)? In what situations should discrimination be allowed? It seems like there are some cases where we’re fine with people discriminating, so it can’t be that discrimination of any kind is in itself wrong.

For example, if I hold a dinner party and politely request “no long hair, blondes, people over 70, or Laplanders” is that illicit discrimination? Are we prepared to say that discriminating on age is okay—who wants a fuddy-​duddy at a party, after all—but that discriminating against nationalities, or pseudo-​nationalities like Laplander, is not okay? What if Laplanders are notoriously dull at parties?

Or maybe it’s bad if money is involved. What if I ask the guests to chip in on costs? Bring a side dish or wine? Does that change the situation? What if I hold a dinner party via Eatwith, a website that connects guests with hosts who have “a talent for making amazing meals and a love for welcoming people into their homes to share them.” Is that illicit discrimination because money is now involved?

The questions continue: What about reasons to discriminate? Are some reasons (religion, perhaps) better than others? In college, I was once told that my “white maleness” was compromising the “energy patterns” of the room and kicked out of a discussion on gender politics before I even said a word. Was this justified discrimination based on a religious belief? Was it discrimination at all or was it just practicing the freedom of association? What’s the difference?

Any society that is going to have laws prohibiting private discrimination must wrestle with these questions if it is to remain even moderately free. What’s most frightening is that those difficult questions have been forgotten, and increasingly, when people see alleged discrimination anywhere, they go running to the government.

Those of us who believe that free association necessarily entails a right to discriminate (but maybe not in all cases whatsoever) are often called out for not parroting the modern catechism—namely, that one of the core purposes of government is to “stop” discrimination. I put “stop” in quotes because, generally speaking, the government doesn’t stop discrimination, it merely penalizes after the fact those who engage in prohibited discrimination. Prohibiting discrimination doesn’t turn bigots into hippies, and it certainly doesn’t (and shouldn’t) “solve” discrimination by forcing bigots to hire and work with people of color or people of a different sexual orientation. That doesn’t help anyone and would cause more problems than it solves.

Yes, government can be sometimes a moral leader to some, and perhaps government action can boldly lead the way towards a more moral and just world where people are not singled out and treated differently for who they are. And perhaps this is what government did with bills like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that helped lead us out of the shadow of Jim Crow. And maybe government needs to take such leadership now for a new civil rights moment.

Or maybe we should understand that government is simply force and power, and that it would be odd to hold up the same institution that perpetuated Jim Crow as an exemplar of moral instruction. Usually we should look to the institutions of civil society as the primary source of moral teachings and not to an institution that spends so much time doing things that are purely and unquestionably evil.

The movement for gay rights is unquestionably one of the great civil rights stories of our time, and, in small ways, like contributing to Cato’s Supreme Court brief in the upcoming gay marriage case, I am proud to have done even a little to help it. But that liberation did not occur, and is not occurring, because gay rights activists focused their attention primarily on government. It occurred because of the sexual liberation of the ’60s, the relaxation of moral puritanism throughout the ’70s, the growth of social consciousness in the ’80s, the mainstreaming in ’90s, and the slow realization of equality in the first decades of the new century. People like David Bowie, Freddie Mercury, Rock Hudson, and Billy Crystal’s character on Soap have more responsibility for liberating the LGBT community than any government action. Thankfully government didn’t lead the charge on those issues because it probably would have probably screwed it up.

Ultimately, Indiana’s RFRA doesn’t authorize massive discrimination against homosexuals. Even if it did, however, gays and lesbians are thankfully strongly protected from discrimination by something better than a mere law: the moral opprobrium of civil society. If government were the primary barrier to discrimination, then we’d be in real trouble.