With the Supreme Court having legalized same-sex marriage across the country last month, libertarians are left to ask themselves if the fight for gay rights is over. This question is particularly pressing given the great media attention that has been paid to bakers and photographers who have been sued for refusing to service a gay marriage.
In a personal sense, the struggle for LGBT acceptance will never be over since there will always be hateful people in the world. However, from a policy standpoint, I believe there is nothing more that liberty lovers can do that would not infringe upon others’ property rights.
Some LGBT free market groups like the Log Cabin Republicans support additional anti-discrimination protections for LGBT people like the federal Employment Non-Discrimination Act (ENDA). At first glance, it’s easy to see the logic behind such a push. Federal protections already exist in the Civil Rights Act for discrimination based on sex, race, religion, age, and a number of other classes — but not sexual orientation. So why not simply add it for consistency’s sake?
However, the question becomes more complicated when you consider the history and property rights. Regarding the former, as David E. Bernstein points out in Cato Unbound, anti-discrimination laws like the Civil Rights Act were passed to break up a racist monopoly in the Jim Crow South. State and local governments back then conspired with local businesses to keep blacks out of most public and private spaces. This level of animus simply does not exist for homosexuals today. People like myself can walk in public spaces and patronize private businesses largely free from fear of discrimination. That’s because, unlike race, sexual orientation is not a visible trait that one can be instantaneously profiled for. Yes, there are very feminine gay men and butch lesbians who passerby’s can strongly suspect are homosexual. However, suspicion is not confirmation, and oftentimes these individuals can pass as straight if they tried.
Read the rest on Rare here.