(The Fraser Forum,
by Martin Masse and Jean-Luc Migué*
After a judicial saga that had lasted a number of years, the Supreme Court of Canada ruled in April 1998 that Delvin Vriend, a homosexual teacher who would assert his identity at work by wearing a t-shirt proclaiming his orientation, was unjustly fired by an Alberta Christian private college. This judgement thereby denies the right of religious institutions to defend their own values when these conflict with state orthodoxy. The law forbids individuals, corporations, and private institutions from discriminating when choosing their associates, employees, friends, and members.
On the other hand, governments in Canada—and even private employers, if
we are to believe some jurists—are forced to practice real discrimination
towards women and other groups when it comes to wages and hiring. At all
government levels, a vast bureaucratic apparatus is in place to monitor
the application of these rules.
These two examples are more proof that in order to comply with current trends in values and beliefs, the state is ready to negate freedom of opinion, freedom of association, and the principle of equality before the law, all this presumably so that past wrongs will finally be righted. And in looking at the conclusions of a report by a federal committee on human rights presided by Justice Gérard La Forest and presented to the Justice Minister some time ago, we can expect that new
Collective rights are typically defined as the coercive use of state power to bestow privileges on and transfer wealth to members of preferred groups. This concept collides with the rights of individuals to freely and voluntarily negotiate the terms of contracts among themselves. Collective rights imply that individuals have no rights except as members of groups. This inconsistency is clearly manifest in our Canadian Charter of Rights, where equality of all before the law (except for property rights) is proclaimed with the same force as a series of discriminatory preferential rights for some groups.
The notion of collective rights and its sister concept of social justice as conventionally defined, are inconsistent with private property. In the group rights framework, wealth produced by individuals becomes a collection of goods that belong to the
Individual rights are to be distinguished from claims on some other person or on the property of someone else, which in reality constitute a violation of individual rights. No one has a right to the wealth of others without their consent. Francophones have no right to French unilingualism or to bilingualism from coast to coast, or to a Radio-Canada as richly funded as the CBC, no more than the Canadian elite has a right to be offered Canadian content on a full range of TV programs produced with taxpayers' money. Residents of the Gaspe have no right to the wealth produced in Montreal, women have no right to wage parity with men, and cultural communities have no right to claim a special status. As morally wrong as prejudices can be, homosexuals have no right to force private employers or associations to welcome them. Even the poor have no right to the money of richer people, which of course in no way precludes the latter from voluntarily sharing their wealth with the former if they so wish.
Equality of opportunity based on property rights is a by-product of the market solution, even in the presence of prejudices on the part of the few. It is the only foundation that sustains not only wealth creation, but also justice. Privilege and unjust redistribution is the by-product of government discriminatory rules. The tragic error propounded by contemporary political morality is that social justice can be furthered by violating property rights. Social justice thus defined can never serve as a foundation for a stable society. By contrast with the rule of law and equal rights and opportunity for all, it can be defined as anything that anybody says it is at a given moment. It is an excuse that serves to justify the suppression of the rule of law. It promotes antagonism and perpetuates underdevelopment. Since these so-called rights are invariably created and conferred by people who hold temporary authority, they are likely to change often and without notice, just like the definition of social justice itself.
Indeed, historically, women and homosexuals have been the target of systematic discrimination by state authorities, indirectly through the use of regulations and directly at the hand of monopolistic public institutions. Women used to be denied nominations to the Senate, forbidden access to professional corporations and court benches, forbidden to work during the night or in mines, or in jobs controlled by trade unions; married women could not contract without their husband's consent. Homosexual acts were specifically outlawed (there are still a dozen US states that have
The market does not discriminate
Discriminatory laws engineered by the state are not only arbitrary diktats that can change from one decade to another and create as many new victims as they
Minorities have nothing to fear from the effects of true justice based on the logic of economic liberalism. Equality of opportunity for every individual, irrespective of colour, religion, or sex, is precisely what freedom to contract generates in the absence of government regulation. The history of the job market confirms that minorities are not victims of other people's prejudices, even of prejudices held by a majority. To be able to transfer the burden of his prejudices to his victim, an employer must indeed possess monopoly power, a power to coerce like the one reserved to the state.
For an employer, discriminating means, in effect, forgoing the use of manpower of higher productivity as the cost of indulging one's bigotry. The narrow-minded employer thus penalizes himself. The key proposition is this: an employer who would hire a heterosexual male candidate for $14 an hour instead of a female or homosexual candidate of equal productivity for $12 an hour would deny himself $2 of net profit for every hour of work. Such discriminatory behaviour would be unstable and could not be sustained for long, because competing employers free of such prejudices would seize the opportunity and rush to hire the cheaper candidates and beat the other firm. In a competitive environment, prejudices are irrelevant because they do not affect the victims. Neither
The market destroys employment prejudice. In the 1960s, Birmingham and Atlanta fought to become the US south's business centre. In Birmingham, politics ruled. In Atlanta, businesses promoted a telling slogan —
The trendy discriminatory laws themselves render the job market less flexible, increase the cost of female work, reduce the number of jobs for women and other
The conclusion to derive from this logic, the only arrangement consistent with essential liberties and acceptable in an open society, is that discrimination should be solely prohibited in state institutions, inasmuch as these are in a position of monopoly. As morally abhorrent as it may appear, individuals, private associations, and corporations should be allowed to practice the kinds of exclusions which they deem desirable. Any other coercive rule is a threat to freedom of thought, freedom of association, and freedom of religion. Actual discrimination outside government would be limited and without any consequences for minorities, thanks to the constraints imposed by a competitive market and the evolution of social attitudes towards more tolerance and open-mindedness. It is time that minorities be freed from the burden of official bureaucratic discrimination.