Private vs. Public Anti-Gay Discrimination

Over at the Washington Blade blog, Mark Lee raises an important question about the recent Brendan Eich/Mozilla debacle: are we more interested in punishing our enemies than we are about changing the social and political landscape?

He argues, “It is astonishing that in the midst of winning hearts and minds on the most essential elements of equality, some would gamble the goodwill of the many for the pleasure of revenge on the few.”

Michael Hamilton followed up Lee’s point by suggesting that, at very least, gay rights activists might want to refrain from exacting retribution on our opponents until we’ve actually won. Lest we forget, 33 states still ban same-sex marriage.

While it’s possible that those bans won’t survive constitutional scrutiny following the Supreme Court’s ruling in Windsor, we aren’t in a position to declare victory, much less punish losing side. They haven’t lost yet, and we are alienating reasonable people by turning our opponents into martyrs on the altar of political correctness.

So why, given the obvious costs, are many activists spending so much time attacking private citizens and businesses while the battle for legal equality has yet to be won? The answer reveals a growing division between the libertarian and progressive positions in the battle for gay rights, and their different conceptions of victory.

The libertarian argument is that the state should not arbitrarily discriminate against anyone on the basis of sexual orientation or expression, because it’s inconsistent with individual liberty and equality on the law. But progressives want much more than an end to legal discrimination–they would like to make sexual orientation a protected class, the way race, religion, sex, and disability are now, and extend non-discrimination laws to private businesses. While important, merely striking down anti-sodomy laws and gay marriage bans is not the endgame for progressives.

gay discriminationAttacking individuals like Brendan Eich, Orson Scott Card, and Dan Cathy* is actually very savvy politics, given what progressives aim to accomplish. There has always been much more public support in favor of banning private discrimination against gays than in favor of legalizing gay marriage.

A recent Washington Post-ABC News poll found that 59% of Americans think same-sex marriage should be legal, but over 80% think that private businesses should not be allowed to discriminate against gays. Over 70% of conservatives think private discrimination should be banned.

I suspect that heterosexual people can more readily imagine and empathize with the humiliation of being denied service or employment for no reason than the notion of wanting to marry someone of the same sex. Thus, I think it makes a lot of sense for progressives to go after business people who don’t support equal marriage (even if, like Mozilla, their companies have been very good at implementing non-discrimination policies for gays and lesbians) to help them score points against the business community.

nondiscrimination17 states currently allow gay marriage, and when that number reaches 50, the libertarians will have won. 21 states also have non-discrimination laws for sexual orientation, but until that reaches 50, progressives will not be finished.

Philosophically, the libertarian argument for gay rights revolves around limiting the power of the state to promote discrimination, while the progressive argument is about pro-actively using the state to mandate acceptance and punish those (including private individuals and businesses) who have ugly beliefs and attitudes about gays.

I might have more to say about the arguments for and against non-discrimination laws later, but for now, I’ll simply point out that this division is deep and isn’t going to go away anytime soon.

* The Chik-fil-A situation is in fact a bit different because the company itself was actually donating money to some extremely unpleasant groups, including those that expressed support for Uganda’s anti-homosexuality laws.