This article was originally published in my column at the Colson Center. It is republished here with permission. For a complete directory of all my Colson Center articles, click here.
Why Discrimination is Sometimes Good
My previous article on anti-discrimination laws looked at the controversy concerning laws recently introduced in Coeur D’Alene, Idaho. These laws forbid businesses from discriminating against a person based on sexual orientation.
I ended my last article by suggesting that discrimination isn’t always a bad thing. I’d like to now defend my claim that only some types of discrimination are actually unjust.
Let’s consider the case of gender discrimination. Most of us would probably be quick to say that gender discrimination is wrong. However, in his book The Retreat of Reason, Anthony Browne has shown that many forms of gender discrimination are necessary, laudable, defensible and uncontroversial:
“Young men pay higher rates for car insurance than young women and older men, because young men are, on average, more dangerous drivers than young women and older men. A young man who is a safe driver is thus discriminated against because of the characteristics of other people in his age and sex group….Anti-discrimination campaigners may publicly declare that all discrimination on the grounds of sex should be outlawed, but they are unlikely to agree that all men should have the right to use women’s toilets, that men should be allowed to go to women’s gyms, or to demand overturning the right of women’s clothes shops to refuse to employ men….Men pay smaller pension contributions than women for a given level of private pension, for the simple reason that, on average, they have shorter lives and so on average claim less….The various forms of rational discrimination that are widely accepted are not often called discrimination – although that is clearly what they are – because accepting that some discrimination is actually essential to the working of a society would undermine the public acceptance of a ‘zero tolerance of all forms of discrimination’. The war on discrimination would become meaningless if there were general public awareness that actually some forms of discrimination are needed.”
Given that many forms of rational discrimination are publically practiced and even enshrined in law, in order to justify a law banning any type of discrimination, we need to first establish that that type of discrimination in question is unjust. Therefore, when faced with a type of discrimination that people want to criminalize, we must always ask: does this fall into a category like forcing blacks to move to the back of the bus, which is irrational and unjust, or is it like making men pay higher car insurance premiums, which is rational and just? The answer to such questions cannot established by comparing the contested type of discrimination to other types of discrimination that we already agree are unjust, for such a comparison only works if we first assume that the former is also unjust, in which case the argument collapses into circularity.
Let me give an example of this type of circular reasoning. If I were to say that Apple computers are more reliable than PCs and that the reason I know this is because Apple computers are like the most reliable types of cars, then I haven’t actually made an argument but simply restated my conclusion twice. It is similarly illogical for someone to say that discrimination against blacks is unjust and discrimination against homosexuals is comparable to discrimination against blacks, for the comparison is only legitimate if you begin by assuming that discrimination against homosexuals is unjust, which is precisely the matter under debate. To begin an argument by assuming one’s conclusion is to reason in a way that could justify absolutely anything.
The Role of the State
Let’s assume, however, that it were possible to establish that discrimination against homosexuals is unjust, as I’m sure it probably is under certain circumstances. Now by itself this still doesn’t prove the necessity of anti-discrimination laws, for we would also need to establish that government ought to get involved in forcibly preventing this type of unjust discrimination. Just because an activity is wrong doesn’t in itself establish that the activity should be made illegal. For example, I personally believe that anyone who rides a motorcycle without a helmet is being foolish almost to the point of sin. But this is a separate question to whether there should be a law requiring helmets.
Now the issue of motorcycle helmets is different to the question of discrimination, since discrimination affects more than just oneself. However, I’ll warn you that even on this issue, I’m still pretty libertarian. When it comes to racial discrimination, I’m so radical that I think a Mexican restaurant ought to be able to practice racial discrimination and just hire Mexicans if the owners want, and those of us who find this offensive can exercise our right to eat elsewhere. I’m so radical that I think the owners of a Chinese restaurant should be able to practice racial discrimination and just hire Chinese workers if they so desire. If there is a Mormon Boy Scout troop that wants to only include Mormons, that should be up to them; if there is a homosexual Boy Scout troop that wants to ban heterosexuals, or visa versa, that should be up to them. If I have a private gym that I only want to make available to Christians, or perhaps supralapsarian postmillennial theonomists Christians, that should be up to me.
But what about the really nasty type of racism that has been such a problem in American society? Shouldn’t there be laws against that? Perhaps, but when we look back over the history of racism and segregation in this country, we see that most of the progress towards integration has been the result of courageous acts by individuals and not government policies. In fact, the times when government tried to get involved through policies like forced bussing or affirmative action, it often only succeeded in inflaming racial tension, as Thomas Woods showed in his book The Politically Incorrect Guide to American History. It wouldn’t surprise me if we find that anti-discrimination laws make a similar mistake, creating unnecessary new social tensions between homosexuals and Christians.
The Freedom to be Bad
I have suggested that even if it could be shown that discrimination against homosexuals is always wrong, we would require further argumentation to prove that such discrimination should be made illegal. The same applies to discrimination against Christians.
The non sequitur move from “X is wrong” to “X should be illegal” usually hinges on the implicit notion that it is the state’s job to redesign society from the top down, and that in a free society no one should have the freedom to be bad. However, this is a questionable assumption at best.
All property rights assume, at some level, that the law should give us a certain degree of freedom to be bad. Your body is your property, your thoughts are your property, your earned possessions are your property and your business is your property. To coerce someone under threat of violence to use their own property in a way he or she does not want to is a violation of the basic principle of freedom. Similarly, to argue that anyone has a ‘right’ to property that is not theirs, whether it be someone else’s body, money, business or thoughts, is antithetical to the principles of a free society.
Now, to be sure, there are other principles that come into play which sometimes justify the state stepping in and removing someone’s freedom in one area so that freedom can be preserved in another area. For example, it is legitimate to force citizens to surrender a degree of freedom over their own money in the form of taxation, in order that the state can afford to hire law enforcement officers to protect our property in other areas. Similarly, if I have a river that runs through my property and I am dumping pollutants into it, then the state is justified in stopping me, in order to preserve the property of those who live further downstream.
Therefore, some degree of coercion can be necessary in order to preserve liberty. However, before we can appreciate the times when this type of coercion might be justified, we have to first understand that the cost of freedom is that people will behave in ways you may not always agree with. Put simply, in a free society people should have the freedom to be bad. This perspective is lost once we start to view the state as a nanny tasked with the vocation of making us good – a viewpoint which lurks implicitly behind much of the recent anti-discrimination policies
I’d like to close this post with a couple quotes from C.S. Lewis, taken from two different essays in his collection God in the Dock.
“The modern State exists not to protect our rights but to do us good or make us good – anyway, to do something to us or to make us something. Hence the new name “leaders” for those who were once “rulers.” We are less their subjects than their wards, pupils, or domestic animals. There is nothing left of which we can say to them, “Mind your own business.” Our whole lives are their business.”
“Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busy-bodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”