Even the Libertarian Party is Useless on Oppressive Nondiscrimination Laws

Of all parties, you'd expect the Libertarians to stand against the big government insanity of private sector nondiscrimination laws. They don't.

bake the cake

If you’re like me you’re probably searching for a third party candidate in the wake of Donald Trump’s clinching of the GOP nomination. For those of you considering the Libertarian Party (LP), I hope you’ll reconsider.

The party’s current frontrunner, former New Mexico Governor Gary Johnson, doesn’t seem to understand this liberty thing. He thinks it means drugs and abortion but should you decide that you don’t want to engage in a business transaction he wants the government to coerce you. The party’s other candidates aren’t quite as extreme in their statism though none of them will make an unqualified stand for your Thirteenth Amendment right not to be held in involuntary servitude—which is exactly what private sector nondiscrimination laws are.

Johnson is so enamored with the concept of private sector nondiscrimination laws that he wants to force Jewish bakers to make a Nazi wedding cakes. Yes, really. Contrary to the battle cry of his party, “Minimum government, maximum freedom,” Johnson thinks the government should mandate that party A do business with party B. I don’t. My philosophy is that both ends of any economic transaction should be voluntary. That is not, by the way, a return to Jim Crow. Jim Crow was also a statist monstrosity which prohibited businesses from serving whom they wished. Big difference.

Johnson makes the familiar slippery slope argument that permitting businesses to refuse service to one group for one reason will quickly get out of control and then all sorts of businesses will be discriminating for all sorts of reasons. For the life of me, I can’t explain why a libertarian would be upset about this. It certainly puts the lie to the rest of his supposed libertarian beliefs.

The slippery slope argument goes something like this—today it’s one shop refusing to make a wedding cake for a homosexual wedding but tomorrow…who knows? Every bakery in town might refuse service as well. Every bakery in the next town might make the same decision. And the next town, and the next town. You can see how this would be a huge problem in say, San Francisco or New York both of which have strict laws against that kind of reprobate behavior. Then there might be a gas station owner who won’t serve blacks and he might own the only gas station in a hundred mile radius and a black guy might run out of gas in the middle of the desert and be disemboweled by vultures! And then doctors might refuse to perform life-saving surgery on patients because they’re divorced! It gets really stupid really fast.

The moderator, John Stossel, then asked whether Jews should have to bake a Nazi wedding cake and Johnson replied, “That’s my contention, yes.” He then went on to cite the silliest slippery slope argument I have ever heard—and I’ve heard some silly ones. He actually said that a private utility company might decide to shut off someone’s electricity for religious reasons.

Is this really a problem? No really; has this ever happened in the history of the universe? Where do they get these ridiculous scenarios?

I don’t mean to imply that slippery slope arguments are inherently suspect. To the contrary, we’re racing down a slippery slope at breathtaking speed but in the other direction. The idea that business owners can’t discriminate is being taken to absurd lengths and it will only get more bizarre in coming years. It isn’t just nondiscrimination laws either. Once we’ve accepted that private businesses aren’t really private there’s essentially nothing the government can’t mandate or prohibit. If you’re okay with that then please don’t call yourself a libertarian, a conservative, or even an American. Call yourself something else. Please.

The mental roadblock I think most people encounter when thinking about this issue is that most of us received very simplistic lessons about the so-called Civil Rights Movement in our grade school years. It’s sacrilege to suggest that maybe we made a mistake when we enacted, for example, the Civil Rights Act of 1964. When reasonable objections are raised to private sector nondiscrimination laws—objections that are grounded in the Constitution, the free market, and federalism—we tend to get nervous. Though we know that these objections make sense we also know that they might have been used by yesteryear’s white southerners to continue to refuse service to blacks.

But that’s the nature of freedom. Just as I will defend the right of free speech regardless of whether I personally agree with what’s being said, I will also defend the right of people to refuse service for the reason of their choosing. Just saying “I don’t want to” ought to suffice.

Strange things start happening when that right disappears. What seems like an absurd application of the law today may seem quite normal in twenty years. The sky’s really the limit. Just imagine if you could go back in time and tell Ralph Abernathy, one of Martin Luther King’s closest advisers and an ordained minister, that the precedent he was setting would one day be invoked to make Christians such as himself bake wedding cakes for homosexual weddings. He would have thought you were mad.

Nondiscrimination laws are now being used to force private businesses to allow men to use the ladies’ room. That’s what Houston’s HERO was about, as well as Charlotte’s recent law which was preempted by the state of North Carolina, which may in turn be preempted by Obama’s dictatorial powers. The Obama Administration’s wacky position isn’t even that we should integrate bathrooms, only that each of us should have the freedom to self-select which group we belong to.

Unlike most people, I won’t say that having separate bathrooms isn’t discrimination. Of course it is! Making any distinction between two things is discrimination by definition. If you think men belong in the men’s room then you are not unequivocally anti-discrimination. You believe, as I do, that some kinds of discrimination are at least tolerable if not acceptable or even desirable.

The hottest new fad in nondiscrimination law is protection for convicted felons. Most of us don’t think that being a murderer or rapist is a status deserving of protection but then again most of us don’t work for the Obama Administration. Last month, the US Department of Housing issued a decree saying that refusing to rent to a prospective tenant on account of a criminal record may violate the Fair Housing Act. Actually, it doesn’t. The act prohibits discrimination based on race but not on felony conviction. The Department maintains that discrimination against felons is de facto discrimination against racial minorities. So there you have it folks—Democrats think minorities are a bunch of criminals. And we’re the racist ones?

Here’s the weirdest one I have seen in a while. It is now illegal in New York City, through a bureaucratic regulation not passed by the city council, for a bartender to refuse to serve a woman because she’s pregnant.

If we don’t serve margaritas to pregnant ladies it’s a slippery slope back to Jim Crow! Or something.

Keep in mind that drinking while pregnant, as bad an idea as that may be, is not illegal in New York. Pregnant ladies can get as smashed as they want to; they just have to find someone willing to sell them the alcohol. What’s changed is that you no longer have a choice to serve them. According to the guidelines: “Judgments and stereotypes about how pregnant individuals should behave, their physical capabilities and what is or is not healthy for a fetus are pervasive in our society and cannot be used as pretext for unlawful discriminatory decisions.”

They hit on all the right words—judgement, stereotypes, pretext. A pretext, by the way, is “a reason that you give to hide your real reason for doing something,” according to Merriam-Webster. So the city of New York has decided that if a bartender claims not to want to contribute to fetal alcohol syndrome he’s actually lying. There must be a more sinister reason lurking behind that “pretext.” Much like our First Amendment, it’s a “cloak for prejudice.”

Unlike Governor Johnson’s silly scenario involving an electricity company shutting off power for religious reasons, all of the aforementioned examples are actually happening. No hypotheticals here. That doesn’t mean, however, that we have reached peak insanity. There’s always a new frontier in “civil rights” and I have no doubt that it will get worse before it gets better. Should nondiscrimination laws be used to protect child molesters? I don’t think that’s so far-fetched. Given the current administration’s policy on discrimination against felons, I would have to assume they’re already protected. A landlord can’t say that he will rent to criminals but not that kind of criminal. Will Curves gym be forced to take men? I don’t see why not. Discrimination is part of their business model.

We’re on a slippery slope for sure but not toward too much freedom. We’re like the Jamaican bobsled team racing toward total government control. I want off.

 

Benny Huang is a lonely conservative in the very liberal Pioneer Valley of Massachusetts. He strives to make the world a better place through his writing. He is a veteran.