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Source link: http://archive.mises.org/10204/whose-right-is-it-anyway/

Whose Right Is It, Anyway?

June 29, 2009 by

Recently, the Shelby County Commission passed an ordinance that would make it illegal for employers and firms that contract with the county to discriminate against people based on sexual orientation. Unfortunately, the debate largely ignored the key issue, which is whether it is just, moral, and appropriate to use force to correct others’ wayward beliefs. FULL ARTICLE


2nd Amendment June 29, 2009 at 8:31 am

Let the market forces correct this. By hiring people based on their sexual orientation instead of their skills, those employers handicap their competitivity and will lose in the market place.

There is no need to create an added bureaucracy or laws, free market capitalism will take care of them.

Joe June 29, 2009 at 9:16 am

How long is it until employers won’t be allowed to discriminate based on criminal records or past work experience?

Jay June 29, 2009 at 9:22 am

We need to avoid tolerance.

Sorry, it may seem like a nit to pick, but it has important aspects. Maybe a new word would work here?

I refer to this: “Tolerance is ennobling, which is why we should teach it to our children.”

In common usage, I suppose that tolerance has come to mean something akin to learning to live with things one isn’t all that happy with (e.g. “I can tolerate the heat, if only barely”), or being nice to people you disagree with. That’s all fine. I have no problem with that meaning.

I do have problems with an earlier usage, one that should be especially ominous to lovers of liberty.

Tolerance was associated with an established, government-sponsored group making it clear that it had all the rights, and nobody else did, and then deciding to be generous and give a few rights to others anyway, within the strict limits it chooses, since of course all the rights really belong to it anyway, and it can take them back if it wants, when it wants (see the Tolerance Act of 1689 in England where a state religion granted some rights to various non-state religions).

I’m sure neither Steven Landsburg nor Art Carden have that earlier sense of the term in mind. I still think it’d be nice if we could just get away from it altogether.

Ken Zahringer June 29, 2009 at 10:13 am

You veered into a kernel of scary truth in your first paragraph. The county commissioners and others in the debate didn’t ignore the key issue of whether the State has the right to coerce virtue in its subjects. Rather, they consider the matter already settled in the affirmative. Otherwise they wouldn’t have taken up the proposed measure in the first place.

More work for us. Keep talking and writing, Art!

V Harris June 29, 2009 at 10:25 am

Ultimately, the State owns all rights to all property over which it enforces jurisdiction.

As owner, the State is the proper entity to dictate who may discriminate against whom — when, where and how.

Even Austrians agree that a property owner is free to coercively exert his governance on occupants — even if such governance is detrimental to all.

V Harris

Inquisitor June 29, 2009 at 11:00 am

“Ultimately, the State owns all rights to all property over which it enforces jurisdiction.”

Sigh, here we go with this rubbish again. No, it doesn’t. No, it never will.

Joe June 29, 2009 at 11:48 am

Dear everyone,

Here is a good story about contradictory government intervention causing a havoc for a bar & grill owner:

It’s an example that shows how owners of stores don’t get to chose their patrons, and how kicking them out of the establishment is illegal, and how letting them stay in the establishment is illegal.

Shay June 29, 2009 at 12:05 pm

Let the market forces correct this. By hiring people based on their sexual orientation instead of their skills, those employers handicap their competitivity and will lose in the market place.

Except that the customer is the government, which isn’t restricted by such trivialities as cost, efficiency, or competitiveness. So in a way this makes sense (other than the obvious scaling back of government). On the other hand, since it only applies to government customers, isn’t it just another way of stating that the government is going to become more picky about which companies it contracts work to?

Joe Stoutenburg June 29, 2009 at 12:33 pm

Though I always try to do it respectfully, too often my comments on sites such as this tend to be critiques. For once, let me say only, Bravo! Very well done!

Due to its concise writing, I think that this essay is suitable for wider distribution. I hope that mises.org and the writer will consider promoting it as op ed material.

Haragan June 29, 2009 at 1:35 pm

The ordinance says they cannot deny employment based on their sexual orientation which does not imply they have to as there are still plenty of other reasons to refuse them. And if that is the reason they are being denied employment then it would mean they are really qualified employees and the boss is hurting his bottom line for not hiring that person. So overall, it would seem that discrimination will take care of itself. People should be persuaded by good arguments. And yet they are usually not, which probably is what intolerance is about.

Could the civil rights movement have advanced without legislation (or for that matter slavery without a civil war)? Would apartheid have ended without international condemnation? Maybe, maybe not. I’m somewhat skeptical. Even if it did, perhaps it would have taken much longer, and some government legislation might act as a catalyst, although, in this case, it is likely that there already exist other laws protecting the gays as a minority.

Also, as stated, if you were forced to hire a gay man and reject the straight man, you would be breaking that same law as you would be denying a job to the straight man based on his sexual orientation.

Jorge Borlandelli June 29, 2009 at 1:43 pm

I think that the government, using taxpayers’ money, can refuse to buy from firms that discriminate with the argument that a substantial percentage of the taxpayers would not like that their taxes be used to do business with the discriminators. For the same reason, government should not use taxpayers’ money to support or subsidize any activity in which the taxpayers are clearly divided, for example abortion.

I Hate Governments June 29, 2009 at 2:00 pm

Jorge Borlandelli,

Governments should not be taxing us in the first place. Governments should not be spending at our place.

D. Saul Weiner June 29, 2009 at 2:04 pm

Jorge, let’s not stop there. Let’s not allow the government to use taxpayer money for wars which many find unjust and unnecessary. Let’s disallow government from using taxpayer money from bailing out financial firms that screwed up big time. Do you think that the government would adhere to this standard with any consistency? I don’t think so either.

I Hate Governments June 29, 2009 at 2:07 pm


The government has no business in being the customer anyways. Governments derive their revenues from force, fraud, looting and killing.

And how dare the government tells those companies to hire gays when the government himself refuses to have gays in his army.

Talk about hypocrisy and double standards.

What if the company owner is gay himself and then wants to join the army ?

How can the government force companies to hire gays but then turns around and fires gays from his army ?

This doesn’t make sense to me.

I Hate Governments June 29, 2009 at 2:10 pm

Jorge Borlandelli,

“a substantial percentage of the taxpayers would not like that their taxes be used to do business with the discriminators.”

I bet my soul that there is a substantially higher percentage of the taxpayers that don’t like that their taxes be used to bailout wall-street and fund wars overseas.

I bet a lot more people would rather higher a pro-straight company than bailout wall-street and fund wars abroad.

So your argument is false.

Franklin June 29, 2009 at 2:49 pm

“Could the civil rights movement have advanced without legislation (or for that matter slavery without a civil war)?”

The slave was denied his right to the property that is inherently his own — his person, his body.

The back-of-the-bus rider was denied equal access to the only publically allowed transportation line on the street, yet was forced to subsidize it with her taxes.

Whether a war was necessary for the former, or millions descending upon the Washington mall for the latter, is question I ponder without easy answers.

I am convinced, however, that government as (using your term) “catalyst,” rather than as individual “guardian,” has resulted in Leviathan as we now know it.

JMT June 29, 2009 at 3:40 pm

How long until people cannot discriminate based on criminal record, etc?

How about right now. In the education community it is a very touchy subject to ask questions about prior performance and possible termination. Basically, if a teacher has lost their license you can consider that. Other than this looking too far into prior performance, etc you run risks. Suppose they were terminated for inappropriate conduct towards a student. They did not lose their license but were released from their contract. Heaven help if either you ask the wrong question or the previous employer were to tell you about it.

We are already headed this direction.

Ansury June 29, 2009 at 3:44 pm

Unfortunately the politically correct activist crowd doesn’t care about principles like this. They are no more intellectually sophisticated and enlightened than the average person on the street. They see business not as a privately funded and owned enterprise that should be treated equally under the law, but as an exploitative, greedy organization used by the rich to use whatever means they can get away with to add to their wealth.

As powerful as the argument is, if it’s too far above your target audience’s head, it is going to be ignored at best–and turned into something else at worst. In this case typically it’s turned into a supposedly racist, sexist, or sexually discriminitory argument that is then used to villify whoever presented the point.

I don’t know if logical arguments like this are very useful against the sea of ignorance we’re up against, sad to say.

prettyskin June 29, 2009 at 4:21 pm

Humans thinking themselves above another to curtail and control with pharisaicalness. Government is a collection of individuals.

Franklin June 29, 2009 at 4:45 pm

Asbury, do not we represent “the average person on the street”?

“The [politically correct crowd sees] business not as a privately funded and owned enterprise that should be treated equally under the law, but as… exploitative…”

I think that’s a fair generalization. But a quibble here. Equal treatment under the law applies to “human beings,” not to an “enterprise” or organization. Well, it ought to.
I think that if more courtroom deliberations were rooted in this approach, we would find a way to crush the silly paradigm of judging a “company’s behavior” rather than a person’s.
It’s much more difficult for do-gooders to institute policy when individuals recognize such laws as directives on who they personally should hang out with.

Franklin June 29, 2009 at 4:50 pm

Ansury, forgive me for misspelling your name.

Rose Ley June 29, 2009 at 5:16 pm

I’m sorry but this was a very unpleasant article to read because the writer continually alluded to a supposed fact that ‘others’ were bigoted. All of us make judgments about people – how they speak and act, whether they share our values and whether or not we would would value a friendship with them.How could anyone employ someone if not based on a judgment about their implicit value. Accusing ‘others’ of being bigoted is in itself a bigoted statement..

gene June 29, 2009 at 6:38 pm

The government hires and contracts as a “collective” entity.

When the government hires contracters and employers, it is entering into a contract. The government can by the article’s own logic, agree to whatever it wants to. It can be a bigot or it can be an anti bigot. No one is forced to contract with the government. If I am going to buy a pencil from your factory, I have a right to to ask you if you would hire a gay and then decide if I want to purchase the pencil based on that. Government is instead turning this simple question into a law because they can and because they are lazy.

Government by definiton possesses superior force and is using it in this situation. They are incorporating their preference into law. We have given them this power by granting or submitting to superior force.

The better idea would be to only directly contract with government. In other words, only hire government to do the things that only government can carry out without any outside help. What these things would be are up to the people, but as long as government only hires employees and not firms, corporations etc. this problem would never crop up.

Ben O'Neill June 29, 2009 at 7:13 pm

Dear Prof Carden,

You state, “I hope that people find discrimination on the basis of race, religion, sexual orientation, physical “handicaps,” and other arbitrary criteria morally repugnant.”

With great respect for your usually good articles, you have fallen right into the Venus fly trap of political correctness here. You have uncritically swallowed the false and dangerous egalitarian idea that discrimination (on the grounds mentioned) is necessarily a manifestation of irrational bigotry, and therefore morally repugnant.

If you genuinely find all discrimination (on the grounds you mention) to be morally repugnant then I presume you must be perfectly okay with a local fire department staffed entirely by quadriplegics. You would certainly have no qualms about hiring a babysitter who is a practicing Satan worshipper. Also, you must also be a 100% no-preference-either-way bisexual. No? Perhaps you are discriminating more than you realize.

In fact, there are innumerable instances where discrimination on the grounds of race, religion, sexual orientation or physical handicaps (that’s right: handicaps, not “handicaps”) is perfectly rational and morally legitimate.* These are not arbitrary criteria for decision making. Some of these characteristics are causally related to characteristics of legitimate concern to people (e.g. physically handicaps may cause poorer performance in physical tasks that an employer requires or values) while others are correlated with other characteristics of legitimate concern (e.g. race, sex and age are all correlated with criminal behavior). In either case, this leads to well known instances of rational discrimination on all the grounds you mention, a phenomenon that has been amply documented by economists and others.

While it is true that there exist many instances where people discriminate on these grounds in an arbitrary or unjust manner, the assertion that all discrimination on the basis of these characteristics is irrational is contrary to the principles of rational inference. I sincerely hope you will re-think your position on this issue.


* For anyone interested, I have previously written about this topic at length in an article for The Independent Review: http://www.independent.org/pdf/tir/tir_13_04_4_oneill.pdf

Eric June 29, 2009 at 8:37 pm

The author alludes to the state enforcing thought crime laws – and now they have the tools.

I can just see it now, they hook you up to an MRI and show you pictures of men on men. If your brain scan shows activity in the area of revulsion, it’s the can for you.

Ansury June 29, 2009 at 10:09 pm

Franklin – (don’t sweat the misspelling, everyone seems to do it!)

I don’t think anyone visiting this website is equal to the average person on the street. The average person would look at you funny if you mentioned the term “Austrian economics” probably thinking you’re talking about Austria! I’d guess that most (“average”) people literally never even briefly consider whether it is “just, moral, and appropriate to use force to correct others’ wayward beliefs.”

Beyond this, I don’t think we really disagree. I probably should have specified that I think equality under the law applies to “enterprises” or organizations specifically because they are owned and operated by individuals. At the corporate scale it’s harder to see this, but scaling down to a business operated by only a single person, it becomes a little clearer.

gene June 29, 2009 at 11:30 pm

“Equal treatment under the law applies to “human beings,” not to an “enterprise” or organization. Well, it ought to.
I think that if more courtroom deliberations were rooted in this approach, we would find a way to crush the silly paradigm of judging a “company’s behavior” rather than a person’s.”

I really don’t see how a “business” or “enterprise” can be treated under the law in any manner?

A business or an enterprise has no place to be treated under the law at all, regardless of the entire system of law referred to as “corporate” law. Law can only apply to individuals. It is the action of individuals that cause harm and injury.

Part of the failure of our judicial system is supporting a system that “prosecutes” or “defends” business or enterprise. It is individuals that should be liable, not some abstract entity.

What is it exactly that a business or enterprise can do that is either legal or illegal that was not in reality done by an individual or group of people?

when the individuals that are responsible for the harm or injury that is attributed to abstract entities are made to face the responsibility of their actions, we will have quite a different world. This is the real problem in our judicial system.

Paul Marks June 30, 2009 at 7:25 am

Whether company or individual they should be allowed to “discriminate” as they see fit.

There is no crime here – and no true tort either.

Yes that even means that discrimination (on employment or on trading with) should be allowed against short, bald men with Jewish family names.

If someone does not want to emply me (because of the above) that is their choice – ditto if they do not want me as a customer in their shop.

The issue is that stark – libertarians can not support “anti discrimination” stuff.

John Nurbo June 30, 2009 at 7:46 am

By principle, I would never do business with the government, just like I would never do business with the devil. Even if he paid well, the devil can go to hell and so can the government.

I could never accept the government’s dirty money and I could never accept to partake in his bloodshed and destruction of mankind.

I’d rather stay a poor and honest civilian and private business man than a “rich” government contractor.

And the government makes it very difficult to be accepted for doing business. It’s like trying to register on a website online and always be prompted back because you entered something wrong or forgot to enter an information, only millions of times worse.

When you finally get accepted, it’s very difficult to get paid. The government is the worse customer there can be.

But by principle, I refuse to serve someone who loots and kills to get his revenue.

gene June 30, 2009 at 9:58 am

We all do business with the government. We have no choice in the matter.

gene June 30, 2009 at 10:00 am

John, wasn’t arguing against your principles, just noting the fact that we all do business, pay our taxes, or we go to jail!

Shay June 30, 2009 at 2:34 pm

“But by principle, I refuse to serve someone who loots and kills to get his revenue.”

In fact, it’s illegal to accepting money you know that the buyer has stolen, unless of course the buyer is the government.

newson June 30, 2009 at 8:53 pm

to ben o’neill:
excellent paper. i’ve got a theory that the various discrimination laws enacted here in australia were the cause of the death of australian comedy. i recall much more cruel and amusing comedy (think “the paul hogan show”) before lawyers got to vet the scripts. today all punches are pulled.

ironically, i find the many of the funniest comics are the black americans, who can get away with all manner of irreverence without copping a racism charge. cartoons, too, have managed to slip under the discrimination radar (“south park” etc.)

lawyers and comedy don’t mix happily.

Vanmind July 2, 2009 at 6:51 pm

Perhaps someone has made a similar comment already, but what I’d do is urge every young, straight, job-hunting person I know to adopt a pretense of homosexuality.

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