Although Arizona’s controversial SB 1062 (the so-called “gay segregation bill”) appears to be dead for now, the liberal hand-wringing continues. As before, many of the criticisms of the law have no basis in reality (Salon’s Elias Isquith lazily conflates the bill with Jim Crow-mandated segregation, despite the fact that SB 1062 would not have mandated anything.) And, as the good folks at Reason have pointed out numerous times, discrimination against gays was and still is legal in the State of Arizona.
That’s right, SB 1062 would not have affected the right of businesses in Arizona to refuse to serve gays and lesbians. What it would have done was create a religious exemption to so-called “public accommodations” laws, meaning that, for example, a Muslim taxi driver could refuse service to a woman travelling alone–although it isn’t clear that such an act is not already legal–if exceedingly rare—in The Grand Canyon State. (There’s nothing like a good dose of Islamophobia to scare conservatives back into the State’s arms.)
This brings me to one of the more interesting arguments against anti-gay discrimination laws–this one put forth by Salon’s Matt Bruenig (it was written regarding Kansas’ proposed law, but could jut as easily apply to Arizona’s). Bruenig’s argument is that since the State must enforce anti-gay discrimination, it is not truly “private” discrimination as libertarians claim.
Responding to libertarians who want government to get “out of the way” of free association (neither mandating nor prohibiting private discrimination), Bruenig argues that:
“Since it is the state that is ultimately tasked to bring out the violent enforcers who effectuate the discriminating intents of public accommodations providers, the state literally cannot get out of the way. It will either grant to public accommodations the right to direct the state’s violence against people solely because they are gay or it will not. In constructing when and under what circumstances it will permit people to be expelled from restaurants, the state is making a decision about when and how it is willing to mobilize itself as a violent enforcer.”
Bruenig has hit upon one of the foremost libertarian objections to the State: its monopoly on the use of retaliatory force. The State has proclaimed itself the sole legitimate user of non-defensive violence, meaning that while I may hire armed guards to protect my property from trespassing, once trespassing occurs if I want to expel the trespasser I have no choice but to call on the state’s agents (I don’t have any alternative, private enforcement options).
Since the State will not likely be relinquishing its monopoly on the use of force anytime soon, it should at least be kept neutral and objective in its enforcement of property and other rights. Just as libertarians believe that if the State is going to grant special legal status to certain couples it should grant that status to any couple that wants it, libertarians also believe that if the State is going to enforce property rights it should do so without regard to the race, religion, cultural tastes, etc. of those whose property rights are being infringed.
To put it another way: If a restaurant owners bans firearms from his premises, and he notices that a patron is carrying a concealed handgun, he may call the police to have the man forcibly expelled should the man refuse to leave. Similarly, a restaurant owner who does not wish to serve same-sex couples should have the same recourse.
The State can’t simply decide to enforce some property rights but not others. It shouldn’t matter what a person’s reasons are for wanting someone expelled from their business, their house, or their bedroom. It’s their property, and therefore their right to include or exclude as they choose (whether the law recognizes this right is an entirely different matter).
Bruenig seems to be concerned that by enforcing the property rights of bigots, the State itself is engaging in, or at least tacitly endorsing, bigotry. But the State already does enforce the property rights of bigots: If a white supremacist’s home is burgled and his Nazi memorabilia stolen, he can file a police report and have the items recovered and returned to him by the State. If a young black man in a do-rag and sagging jeans walks into the clubhouse of an exclusive, private (read: all white) country club, the club can call the police and have the man arrested for trespassing should he refuse to leave.
If liberals have a problem with the State’s police enforcing the property rights of bigots and racists, perhaps they should support legalizing alternative, private enforcement options (in other words, ending the State’s monopoly on the use of retaliatory force).
And if, as Bruenig would have it, the State only enforces the property rights of the good and the righteous, where does one draw the line? How are police supposed to objectively determine whose property rights will be protected and enforced, and whose will not?
The State should not be able to pick and choose whose property rights it will enforce, anymore than it can pick and choose whose relationships deserve legal recognition. If the State is going to grant itself a complete monopoly on a specific service (e.g. expelling trespassers), it can’t fairly turn down any customers, can it?
So no, libertarians are not hypocrites for wanting the State to enforce the right of property owners to choose who is or is not allowed on their property. If libertarians had their way, after all, the State would not exist–much less maintain any sort of monopoly on the use of retaliatory force.
In a libertarian society, businesses would be free to discriminate against any person or group, and for any reason. Most businesses won’t discriminate, though, because they’re in it to make money, and you don’t make money by turning away customers.
Do liberal critics of laws like those proposed in Arizona and Kansas honestly believe that in the absence of laws prohibiting discrimination against gays, businesses would be turning them away in droves? As I pointed out above, it is currently legal to discriminate against gays in Arizona, and yet we don’t see starving gay men on the streets of Tucson, nor do we see out-of-work lesbians panhandling in Peoria.
In a free market, businesses seldom turn away paying customers based on arbitrary characteristics like race or sexual orientation. Those that do will rightly be criticized and boycotted. And let’s not forget that the same right of free association that allows business owners to turn away gays also allows businesses to turn away homophobic legislators.