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).