Anti-Discrimination Law: Bad Idea, Bad Policy
Earlier this week, an anti-discrimination bill was shot down by a House committee. Sponsored by Representative Wiley (a Democrat), HB132 would have enacted legal protections against discrimination in employment for individuals because of their height or weight (as well as the “impression,” and not actual measurement, of that person’s height or weight).
Another anti-discrimination bill had a different outcome in a committee meeting yesterday. SB262, sponsored by Senator Urquhart (a Republican), aims to criminalize discrimination in employment and housing against individuals because of their “sexual orientation” or “gender identity.” The bill passed 4-3 after public comment which featured a number of weak arguments advanced by the opposition.
None of the opposition addressed the fundamental violation of property rights as it relates to anti-discrimination law, instead focusing on compliance costs, awkwardness of allowing boys whose “gender identity” is female to share a bathroom with girls, fear of providing legal support for introducing same-sex marriage in Utah, and other more superficial reasons. While these and other concerns shared are valid, they were not effective. More importantly, they did not address the heart of the issue—the reason why anti-discrimination law is so repugnant to liberty and limited government.
To explain that reason, it is important to first clarify and understand what government is. A government is merely an association of individuals who organize together and delegate certain powers to that institution to exercise on their collective behalf. Legitimate government cannot exercise any authority that it was not delegated by the individuals who comprise that government, and who had the authority to begin with. (An exception can be made for instances in which the individuals ruled under the government unanimously agree, without exception, to empower the institution with additional authority they themselves do not possess.)
Imagine that Bob owns an apartment complex down the street from you, and decides that he wishes to no longer rent his property to a homosexual individual. Do you, as his neighbor, have the right to impose a fine upon him? Do you have the right to lock him in a cage or use violence against him in any way? In other words, are you morally justified in using coercion against him as a result of his discriminatory action?
You would not be justified—not at all. You may strongly disagree with Bob’s action, but it is his property, and those choosing to rent from him have no right to use his property (apart from any binding obligations that may exist from a contractual agreement to which both parties had previously agreed).
Because you and I lack the authority to dictate to property owners to whom they must offer rent, and because we likewise lack the authority to tell business owners who they must employ, we cannot delegate that authority to the government to exercise on our collective behalf.
A person does not have the right to a job in somebody else’s business, nor the right to rent somebody else’s property. That person cannot demand, therefore, that the heavy arm of the state intervene to coerce a business or property owner to afford him that non-existent right.
Senator Urquhart’s legislation is not about gender identity or sexual orientation. It’s about property rights. Opposing it does not mean that somebody thinks that homosexuals should be fired from their jobs or kicked out of a home they may be renting. It simply means that the government does not have the authority to punish property owners for it.
Proponents of anti-discrimination laws such as this can boycott companies, protest landlords, or use other persuasive and peaceful means to seek the change they desire. These are market-based, non-governmental solutions which have worked before and can work in the future. But the government is not the proper means of effecting this change, because no inherent and individual authority exists which can be delegated to the institution.
In his masterful treatise which heavily influenced this nation’s Declaration of Independence, John Locke wrote that “The great and chief end… of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.” Anti-discrimination laws violate property, rather than preserving (protecting) it, by compelling landlords and employers to create or perpetuate an association that would otherwise not exist.
We do not believe that short or obese individuals should be fired from their jobs for that characteristic alone, just as we do not believe that people should be terminated or kicked out of their home because of their sexual orientation.We do argue, however, that these decisions remain with property owners who have the right to act in this way should they choose to do so.
We further argue that the government possesses no legitimately delegated authority to prohibit such discrimination, and that empowering the state to enforce such prohibitions is a dangerous deference to the arrogation of unjust authority which seems to increase without abandon in Utah.