Discriminators should lose in the market

Christian blogger Rod Dreher at the American Conservative website calls it “The Law of Merited Impossibility.” It describes the attitude of the secular left as, “It is absolutely absurd that any harm will come to Christians because of their opposition to gay rights, but when it does, boy, they will deserve it!”

Dreher worries that America is no longer a Christian nation. He calls the prevailing religion—not only among non-churchgoers, but even the de facto religion of many mainstream churches—“Moral Therapeutic Deism.” What he calls a secular religion of the self-centered is especially prevalent among Millennials, who will soon achieve political power. Are we heading for a pink police state?

The Libertarian Party from the beginning of its existence has favored gay rights. Its first presidential candidate in 1972 was an openly gay California academic, John Hospers.

In contrast, at the 2008 Washoe County Republican convention, I was one of only two delegates who spoke out for gay rights. Republicans believed they would win under the banner of traditional marriage. It didn’t quite work out that way. By 2014, the Nevada Republican platform said little about marriage.

Democratic Party leaders were almost as bad, but their ill-deserved reputation as defenders of civil liberties allowed them to swiftly take advantage of the gay marriage victory, even though conservative Andrew Sullivan was its champion. Now Republicans can only sputter and call for a constitutional amendment affirming traditional marriage. The list of Republican proposed constitutional amendments is becoming longer than Bill Cosby’s accusers.

Many Republicans know their realistic goal is protection of religious liberty. Their only culture-war victory is the Hobby Lobby decision wherein the Supremes ruled that the Religious Freedom Restoration Act allowed a closely held, for-profit corporation to refuse to pay for Obamacare coverage for contraception deemed abortofacients by its religious owners.

But when Indiana tried to implement its own RFRA, the secular left, emboldened by the “Christians refusing to bake gay wedding cakes” meme, attacked Gov. Mike Pence as a bigot. When the corporations joined them, the Republicans quickly capitulated. Here in Nevada, our version of RFRA died in committee. Gov. Sandoval did not want a media circus, especially when a boycott of Las Vegas could result.

Immediately after the Obergefell v. Hodges decision recognizing gay marriage as a fundamental right, the national ACLU announced it would no longer defend civil rights under RFRA. Religious belief, they say, does not mean you can violate the discrimination laws. Here is where libertarians separate from left liberals. Classical liberal principles hold that government should never discriminate, or pass laws that mandate discrimination. But except for public accommodations, libertarians draw a bright line against government involvement in private market decisions. Contracts to perform personal services should be free and un-coerced. Currently, the federal laws ban only public, not private, market discrimination towards gay people.

There is no solid evidence of pervasive market discrimination against gay people. In housing, many landlords prefer to have gay tenants. Some anti-discrimination laws could be cruel, such as punishing religious adoption services that do not place children with gay parents. The only outcome of shutting them down would be fewer adoptions, hurting the children most.

The best way to prevent discrimination is to have economic growth which opens opportunities for more people, not crude regulations that often do more harm than good. Freedom of opportunity, not equality of outcome, is the best way.