Scott Tibbs
Hoosier Review, July 9, 2003

Back to opinion page.

Legislators should be wary of the Indiana Equality initiative

A series of press conferences around the state earlier this month announced the Indiana Equality Initiative, which proposes to add sexual orientation and "gender identity" to the list of protected classes under Indiana's nondiscrimination laws. State law currently bans discrimination on the basis of "race, religion, color, sex, disability, national origin or ancestry in education, employment, housing and public accommodations", according to the Herald-Times.

Supports of the initiative argue that discrimination is wrong and that it is only fair to add homosexuals to the groups that cannot be discriminated against. IU vice president for student development and diversity Charlie Nelms told the Herald-Times, "This is not about correctness. It's about fairness. Justice and fairness always trump everything else."

But the problem with including homosexuality in Indiana's nondiscrimination law is that many people have a moral objection to homosexual behavior, often based on religion. Those people may be uncomfortable hiring a homosexual due to their beliefs. In a country that values religious freedom, we should be wary of passing laws that require religious beliefs be set aside. Furthermore, while things like race, color, and national origin are immutable characteristics, the choice to engage in homosexual behavior is not. Should we tell people that objection to a behavior they find morally wrong is not good enough reason to disqualify a potential employee?

The rhetoric of those supporting this initiative leaves something to be desired. The Rev. Rebecca Jimenez of the Center for University Ministry addressed faith-based objections to homosexuality by saying, "It took a long time for faithful, religious people to understand that slavery was wrong and should be abolished."

The hyperbole Jimenez employs does not serve her cause well. Her words only serve to polarize the debate and create resentment in those opposed to her. Her words do not create room for compromise, but they do cause opponents of the Indiana Equality initiative to dig in on their position.

No mainstream political figure, even the most socially conservative, is suggesting that homosexuals be imprisoned, enslaved, or otherwise denied civil rights. The question is whether or not private employers should not be allowed to consider a lifestyle that is antithetical to their religious beliefs. Just because a business is not religious in nature does not mean that the government should require the owner to set aside his religious beliefs.

Some would argue that the same objection to including homosexuality in nondiscrimination laws applies equally to religion, especially when one's belief system is in direct conflict with the belief system and/or practices of a potential employee. This is not an invalid point, and cannot be dismissed by opponents of adding sexual orientation to nondiscrimination laws.

What the Indiana Equality initiative should allow is the opportunity to review the concept of nondiscrimination laws. While this may seem to be a radical concept, it should not be written off without consideration. Should we have laws prohibiting discrimination against currently protected characteristics, immutable or not? Most people would instinctively say that such laws are necessary. It simply is not fair to disqualify someone due to skin pigmentation or gender. Most people rightly find this kind of discrimination to be immoral as well. But should an immoral activity necessarily be illegal?

In the case of government, all discrimination should be forbidden. Government should not practice discrimination of any kind. Government represents all the people and should not exclude anyone for any reason that does not impact on an individual's qualifications for employment, participation in a program, interaction with the criminal justice system, educational opportunities, or anything else. Qualifications and character should be the only considerations used by government.

But in terms of private relationships, the First Amendment forbids the government from infringing on the right to peaceably assemble, which is also seen as the right to freedom of association. The Supreme Court ruled in Boy Scouts of America v. Dale that a New Jersey law forcing the Boy Scouts to keep a homosexual scout leader violates their right to freedom of association. We can use this to surmise that freedom of association also includes the right to limit that association. Does this right become void when the reasons for exercising that right are bigotry based on immutable characteristics like skin pigmentation?

I would argue that it does not. While racial discrimination is distasteful, hurtful and immoral, we should be wary of making that discrimination illegal. From a libertarian perspective, force should not be used to change behavior unless that behavior directly harms another person. While discrimination is indeed harmful, it causes harm by inaction, not by action. If someone refuses to hire a racial minority due to a bigoted world view, he does not deny that person the opportunity to seek gainful employment elsewhere.

Nondiscrimination laws do not create fewer bigots, they just drive the bigotry underground. The use of governmental force does not change hearts or minds. It is better to eliminate bigotry through persuasion than through force. The Libertarian Party platform states: "the right to trade includes the right not to trade -- for any reasons whatsoever; the right of association includes the right not to associate, for exercise of this right depends upon mutual consent."

One could argue that forty years ago such laws were necessary. It is unfortunately true that there was rampant discrimination against blacks (and other minorities) prior to the nondiscrimination laws passed during the era of the civil rights movement. However, society has become more educated and tolerant of differences, and social pressure against discrimination in the modern era would be intense.

Furthermore, if all nondiscrimination laws were repealed today, those who wish to discriminate would have a difficult time practicing discrimination without consequences. Denny's restaurants, for example, faces significant pressure (including boycotts) from non-governmental forces for their discrimination against blacks. While Denny's also faced legal trouble in the form of a class action lawsuit, they would not have gotten away with bigoted actions. The restaurant chain learned its lesson after the discrimination fiasco and now is much more minority-friendly. In the age of instant worldwide communications via the Internet, discriminatory practices will not remain hidden for long.

Without laws against discrimination, there would also be more incentive to act against those who discriminate, as there would not be an assurance that the government would take care of such matters itself. More civic involvement in eradicating bigotry will lead to a more healthy society. When dealing with a topic as important as fighting discrimination, do you really want to abdicate such an important responsibility to the government?