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 pro-discrimination law.
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.
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 Quebecois generally.
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 execrable legislation?
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 unconditionally.
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.
* Larry Deck is a librarian who lives in Montreal.