In my latest reading of What’s a Nice Republican Girl Like Me Doing in the ACLU?, Sheila Suess Kennedy talks about the issues of gay rights and the criminal justice system. What I’d like to do in this post, however, is to interact with something that Kennedy says on pages 105-106. Kennedy is distinguishing between civil liberties and civil rights, and she defines civil liberties as “the rights secured to citizens against government infringement.”
“Civil rights, on the other hand, entitle us to freedom from discrimination by nongovernmental employers, landlords, and proprietors of public accommodations. Civil liberties don’t do a whole lot of good if the only factory in town can decide not to hire women, the only apartment complex won’t rent to African-Americans, and the diner won’t serve Jews. Civil rights statutes prohibit such private sector discrimination. While the ACLU is a civil liberties organization, we favor civil rights laws. So, historically, has the Republican party. Both would agree that there must be limits to government’s authority to require equal treatment by private parties. Unlike restraints on government action, civil rights laws restrict the freedom of those who are discriminating and thus must be carefully crafted and narrowly targeted. Religious enterprises must be allowed to insist on conformity with doctrine, for example, even if that doctrine operates in a discriminatory manner. The behavior of private parties not engaged in commerce cannot be compelled. But within the limits imposed, we agree with most Americans that businesses ought not be able to reject people for characteristics having nothing to do with their performance as employees or their behavior as tenants or customers. Currently, in 1997, gays are protected against such discrimination in exactly nine states (and some assorted cities).”
I agree with much of what Kennedy says in that passage. For one, I think that it is awful for people to be fired for something that has nothing to do with their job performance, whether that be race, gender, or sexual-orientation. Second, I believe that there are more sources of oppression out there than the government, such as private interests. That consideration is why I personally am not a full-fledged libertarian.
I guess that my quibble with the passage is that I wonder how Kennedy would reconcile it with her less-government political philosophy. While Kennedy is correct that there were many Republicans who supported civil rights laws, my impression is that the conservative Goldwater wing of the Republican Party that she champions in the book did not particularly care for them, at least not during the 1960’s. Barry Goldwater was all for banning government discrimination against African-Americans, and he himself supported integration in Arizona. But he did not support the Civil Rights Act of 1964 because it forbade private interests from discriminating, and he regarded that to be an infringement on individual liberty. You hear similar sentiments expressed by certain libertarians today, such as Ron Paul and Rand Paul.
As far as I could see, Kennedy does not seek to harmonize her support for anti-discrimination civil rights laws with her belief in less-government and individual liberty. How could one reconcile the two? Could one say that the government should stay out unless one person harms another, and one person is harming another when he fires someone for something that has nothing to do with his or her job performance? Could one say that conservatism or libertarianism values treating people as individuals rather than as part of a group, and firing people just for being gay or African-American does the exact opposite? I don’t know. In my opinion, just saying that discrimination should be banned because it’s wrong would be problematic in terms of Kennedy’s positions throughout this book, for she often has a problem with people wanting to ban something just because they think that it’s wrong. I wish that, in her chapter on gay rights, she had wrestled more with the question of how her support for anti-discrimination civil rights laws can be reconciled with her political philosophy on the role of government.
And yet, Kennedy’s philosophy about the role of government still seems to influence the passage that I quoted, for Kennedy realizes that bringing government into a situation is a delicate matter. Consequently, she wants for civil rights laws to be “carefully crafted and narrowly targeted”, unlike the vague anti-pornography laws (or proposed laws) that she criticizes in the book. She also wants for the government to respect the liberty of private interests to discriminate in certain areas, such as the right of religious groups to discriminate when doing so is consistent with their doctrines. My impression is that, for Kennedy, the government telling individuals what they can and cannot do is not a step that should be taken lightly, and so there should be measures to insure that the government does not unnecessarily curtail liberty.
But does allowing the government to ban private discrimination put us on a slippery-slope? There have been advocates for small government who have answered “yes” to that—-particularly during the 1960’s. If the government steps outside of its role of protecting the individual’s right to life, liberty, and property, a la John Locke, are we on a slippery slope towards totalitarianism? Kennedy, although she is a supporter of civil rights laws that ban discrimination by private interests, herself fears that granting the government certain powers can lead to results that are deleterious to personal liberty.
I guess that, speaking for myself, I’m tempted to say that we should look at each situation on a case-by-case basis. I think that firing people for being gay is wrong, and so it should be banned, and I don’t believe that the government should limit itself to protecting the individual’s life, liberty, and property, a la John Locke. Again, I’m not a libertarian. At the same time, though, I probably should have crisp principles for what the government should and should not do, otherwise what would prevent the government from getting out of control and becoming authoritarian? I think that Kennedy departs somewhat from her less-government, pro-individual liberty absolutism in her treatment of anti-discrimination laws, but perhaps she is a model for how to approach the role of government when she seeks to draw from the principles of her political philosophy in delineating what anti-discrimination laws should and should not do. In that case, she is not an absolutist, but she is still guided by principles (i.e., a commitment to individual liberty).