Workplace Discrimination Against Gays

The Senate is poised to pass legislation banning workplace discrimination based on sexual orientation and gender identity.  This is good, right?

Maybe, maybe not.  Unfortunately, as with many gay and lesbian issues these days, almost no one wants to debate the issue intelligently.  Rather, the advocates of nondiscrimination have successfully framed the issue as one of "civil rights," whatever that means.  But describing it that way just clouds the issue.

Freedom of association is a fundamental human right, recognized worldwide and in the U.S. in the Constitution.  Absent some compelling public interest, it is bad policy to legislate restrictions on that freedom.

Let's say I really don't like red-haired people.  My fellow citizens can try to persuade me to change that attitude, but they shouldn't be able to force me to do so.  That would constitute governmental "mind control," which we all recognize as bad. So if I choose to live where there are no red-haired people, or I choose to work where there are no red-haired people, or if I choose to avoid them whenever I can, that is my right, and government shouldn't try to force me through any type of mind control to do otherwise.

Most of our law comes from English law developed over several centuries.   English law, like U.S. law, has always recognized freedom of association as a critical and fundamental right.  But over those centuries the law has created exceptions.  One of the earliest exceptions was the law relating to innkeepers. When travel was by horse and stagecoach, a trip could take several days, and that meant travelers had to find overnight lodging, often at country inns.  An innkeeper might hate red-haired people and refuse to lodge them, but that was a problem because the inn might be the only one within a reasonable distance, and refusing to lodge the red-haired person might mean he or she had nowhere to sleep. 

So the law evolved to prohibit innkeepers from refusing lodging based on the innkeeper's personal likes and dislikes. Note carefully that this is a conclusion based on weighing competing interests and coming down on the side of one of them.  The innkeeper's right to refuse to associate with certain people was subjugated to the interest of travelers.  There are two important aspects to this:  First, it is an EXCEPTION to the general rule that people may refuse to deal with (associate with) others for whatever reason they wish; and it does not obligate the innkeeper to like red-haired people, it just prohibits him from refusing service to them.

As the law has developed in the U.K and the U.S., it has wisely followed that balancing approach, at  least until recently.  But with respect to racial discrimination and now sexual orientation discrimination, it has morphed into a more good-versus-evil debate, with opponents castigated as wrong-headed bigots whose rights are to be ignored.  Underlying that attitude is where the real risk lies: we should never legislate against what people think, and describing protection of a class of people as furthering "civil rights" ignores the deprivation of rights of those whose conduct is proscribed.

So the intelligent debate about whether workplace discrimination based on sexual orientation should be prohibited would center around balancing the significance of the interests of gays and lesbians in being employed (and how often it actually occurs) against the interests of employers in controlling the characteristics of their work forces.  I'm not sure how that debate would come out.  But we ought to have it, rather than just relegating the interests of those who find gays and lesbians repugnant to the trash bin because their position is "wrong."