Thanks to Jason at Positive Liberty for a pretty detailed analysis of a post of mine regarding sexual orientation discrimination codes and libertarianism.
A couple of reactions: First when discussing what antidiscrimination policy actually entails, Jason puts it this way:
We must either [if we have no anti-discrimination laws] 1) infringe on the liberties of racial and other minorities by allowing bigots to discriminate or [if we do have antidiscrimination laws] 2) infringe on the liberties of bigots by forbidding bigots to discriminate. Given these options--and accepting the premise that someone will have to lose some liberty--Volokh chooses option two, albeit with some hesitation, because taking anyone's liberty is always a bad thing.
Now, I’m not sure I agree with this characterization. That is, I don’t agree that allowing bigots to discriminate infringes on the liberties of racial and other minorities, unless of course, the bigots are using the organs of government to do the discriminating. But when bigots are forbidden to discriminate in the private sector (using their own property—their businesses, their real estate, their capital) then I think this does infringe their liberty.
Let me use dating as an analogy. Say Phil asks Marcia out on a date. And Marcia thinks Phil is a real troll. So she says no and no date occurs. Has Marcia diminished Phil’s liberty? I don’t think so. Phil is left with the exact same set of possession after the rejection than he had before. But if we don’t allow Marcia to discriminate—if we force her to date Phil when she doesn’t want to—then I think it is clear that her liberty is diminished.
As far as the 1964 Civil Rights Act is concerned, I agree it was a good Act. But, in my mind, it was good for one reason and one reason only: It helped to put the final nail in the coffin of Jim Crow, which was a state enforced system of discrimination. To the extent that the Civil Rights Act presently forbids private parties from discriminating, with no connection whatsoever to any kind of government discrimination, it should be repealed.
Jason likes an idea that I put forward (but reject) regarding generic antidiscrimination policy that I later reject:
Jon Rowe hits on a formula that I much prefer, even while he himself seems to reject it later on. Here is the formula I like:
...a code that says something along the lines of "any and all job decisions shall be made strictly on the grounds of merit" and "any behavior that is not illegal shall not serve as grounds for adverse job decisions." Arguably gays--like smokers, pork-eaters, short people, red-heads, flat-chested women or those with breast implants, guys that are too skinny or who have a beard--would all be protected against adverse decisions under such a policy, even as they receive no special protection on the official "civil rights list" that includes race, gender, religion, age, etc.
As far as I know, some governments are actually subject to such a code. I think Colorado had a very similar one when the Romer v. Evans case was decided (That's what I was thinking of. As I remember, Scalia discusses it quite a bit in his dissent). And such a policy would indeed be workable in the public sector where just about all job applicants are taxpayers and ought to be treated as evenhandedly as possible (AND where government holds a monopoly, and can pass off the cost of irrational discrimination to the taxpayer, such a policy would probably help to guide government’s hand towards economically rational decisions).
However, the impression I got from his post, Jason might wish for such a policy to be mandated in the in the private sector; such a broad policy in the private sector would constitute a radical turn away from employment at will, which is the default rule (subject to quite a few exceptions nowadays—like anti-discrimination policy). But employment at will represents the maximum freedom that both sides of the employment contract possess. While I have no problem tying government’s hands with a rule that says, “merit only,” I would have a big problem with such a rule in the private sector as a major diminishment of freedom of employers. How would we, as employees like it, if we had to put forth such a reason if we wanted to leave a job?