The Pros and Cons of Discrimination
After a century of triumph for anti-discrimination legislation across
the developed world, the Quebec government has had enough and has moved
to adopt the Charter of Quebec Values, a bold and innovative return to
Meanwhile, last week the US Senate passed the
Employment Non-Discrimination Act (ENDA) with the intention of
banning discrimination in employment on the basis of sexual orientation
or gender identity for any employer with at least 15 workers. ENDA has
been a perennial bill since 1994. Every congress has taken it up with
the exception of the 109th when Republicans controlled both chambers,
but it has usually died in committee. One version passed the House in
2007 before dying in Senate, this one has passed the Senate and is
expected to die in the House.
The easy passage in the Senate this time around reflects the growing
shift in public opinion with respect to lesbians, gays, bisexuals and
(to a lesser but still significant extent) transgendered persons. Polls
show widespread support for the legislation even among Republicans.
(Other polls show that a majority of respondents believe that employment
discrimination against LGBT persons
is already illegal.) Although significant minorities continue to
think prejudice against gays should be protected, the majority seem to
have decided that it is as unfair to fire people for their sexual
preferences as it would be to fire them for having the wrong eye colour.
The present version of ENDA includes the usual exemptions for religious
organizations and private non-profit societies (except labour unions)
that since the Civil Rights Act of 1964 have expressed the uneasy
compromise between state-led progress and a civil society that does, in
fact, support many old prejudices. Many see ENDA, in fact, as a simple
extension of the CRA, but this is problematic for at least two reasons.
First, it trivializes the CRA, which was a massive effort to dismantle a
massive system of official white supremacy and which arguably deserved
the support (pace Rand Paul) of libertarians in spite of its violation
of certain otherwise sacrosanct property rights. (David
Bernstein makes the case here.) The unfairness and violence that
gays continue to face in the US and elsewhere is real and important, but
it does not compare to the monstrous dehumanization that was official
policy in the Jim Crow-era south. Officially-sanctioned lynch mobs and
segregated lunch counters were the tip of the iceberg. To give just one
example of the deep systemic injustice that the CRA dismantled, American
courts had, during Jim Crow, absurdly upheld deeds that stipulated that
a piece of property remain in white hands in perpetuity ‒ like some
regression to medieval “entails.”
Moreover, to the extent that ENDA is an extension of the CRA, it
encourages the suspicion that finally there is no aspect of economic
activity or civil society that can remain exempt from the intervention
of the state. Some take the contortions that found a constitutional
justification for the CRA in the Commerce Clause to justify pretty much
anything the federal government might decide to do as “constitutional,”
as if the framers had not seriously intended to limit the power of the
state in any way. But a libertarian, even one like me who thinks the CRA
was a reasonable way to destroy institutionalized white supremacy, has
to wonder at this point if it opened the door to basically
unlimited state meddling in private affairs.
The success of the CRA should not be used to justify unlimited state
intervention. Hillary Clinton has famously said that the privately
organized non-violent direct action of the civil rights movement was not
enough to dismantle Jim Crow and “it took a president to get it done.”
Well of course we’ll never know now, will we? The movement was getting
plenty done, in combination with the black exodus from the south, and
Johnson would hardly have taken up the cause of civil rights absent that
groundswell. The CRA did “get it done,” but we do not and cannot know to
what extent it was necessary and to what extent it might have worked
absent the private-sector interventions of the law.
“The Parti Quebecois was the
first provincial party to have had an openly gay leader and
its membership would probably be appalled by the idea that
someone might be fired for being gay, but officially they
have no problem with firing someone for wearing a
What really should not be in dispute, however, is that public
affairs ought to be conducted without prejudice to one’s faith, skin
colour, sexual orientation or what have you. Defenders of liberty were
clear on that in the ‘60s ‒ Ayn Rand and Milton Friedman, for instance,
backed the public sector aspects of the CRA while criticizing the
private sector interventions ‒ and they should be clear on it today.
Which brings us back to Quebec, where this principle is suddenly under
scrutiny for supposedly giving a too-generous “accommodation” to strange
peoples and cults who do not share the putatively secular values of
The Charter of Quebec Values proposed by the Parti Quebecois government
of Pauline Marois, seeks to ban “ostentatious” displays of religious
faith of the sort typically associated with Muslims especially, but also
Sikhs and Jews and immodest Christians.
This retrogression to pre-Westphalian religious intolerance is only
conceivable in a context that is already secular almost to the point of
official atheism. The Parti Quebecois was the first provincial party to
have had an openly gay leader and its membership would probably be
appalled by the idea that someone might be fired for being gay, but
officially they have no problem with firing someone for wearing a
headscarf. This irony and countless others seem to be lost on the
visionaries of the present provincial government.
How might libertarians respond to the now-probable passage of this
Obviously anyone in a position actually to implement the ban on
religious symbols should refuse to do so. Dr. Lawrence Rosenberg, the
executive director of Montreal’s Jewish General Hospitals shows the way:
with the support of the hospital’s board of directors, Rosenberg has
declared his intention to ignore the ban. He and other administrators of
public institutions who refuse to be the “willing executioners” of the
government will come under fire and they should be supported
Once the legal challenges to the legislation begin, libertarians should
support them financially and endorse them publicly.
At the risk of inviting criticism, I would say that libertarians should
also undertake to punish the Parti Quebecois electorally by
strategically supporting the Liberal Party anywhere it can be expected
to defeat the PQ.
Not to put too fine a point on it, if the Charter of Quebec Values
becomes law, the PQ should never again be allowed to form a government.
Many libertarians (though not I) may once have supported the Coalition
Avenir Quebec as an alternative to the corrupt and disgraced Liberals,
but the CAQ’s miserable split-the-difference support for the Charter
shows how thoroughly its leadership lacks decency, much less principles.
It may be objected that if the Charter does become law, the Liberal
Party cannot necessarily be expected to overturn it even if they are
elected. But the zealousness with which the law is enforced will of
course depend on the party in power and therefore, regardless of all
other considerations, I think it prudent to support the replacement of
the PQ at the earliest possible convenience.
Libertarians are right to hold to lofty principles, and right also to
make compromises as the historical context demands.
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