APPENDIX 8

IS LIBERTARIANISM GOOD FOR LESBIANS AND GAY MEN?

            Maybe the right question is this: Is libertarianism good for lesbians and for gay men as individuals? This conjecture could be true, even if libertarian philosophy were not favorable for the conventional "gay rights" movement.

            Consider the following propositions:

            I make my own choices for my own life and I will answer for them.

            I consider an intimate partner or significant other to be an example of what I value in others.

            I want a system that offers me the optimum opportunity to advance myself and to help those whom I love.

            If you (gay or not) believe in these premises, then libertarianism probably will be good for you as a person.

            But consider these counter-ideas:

            My sexuality is not chosen and is not a matter of my personal choice or control.

            The established power structure needs to be dismantled before people will have liberty.

            I obtain my rights through the rights of my family or of my ethnic, racial, gender, or cultural associates as a whole. I do not have liberty until people who are similarly oppressed are liberated together.

            People belonging to groups that have been disadvantaged in the past need a head start.

            Many people sincerely believe these precepts, even though they don't articulate them. This mindset is somewhat the "solidarity" and group loyalty mentality of coalitions and labor unions. If this is how you feel, libertarianism is definitely not for you.

            Examination of how libertarian principles, if enacted, would affect gay men and lesbians may well begin by looking at specific issues, but it will run full circle into some heady psychological controversies.

           

            GOVERNMENT CAUSES MOST DISCRIMINATION 

            Libertarianism holds that most discrimination results largely because special interests can usurp the powers of the state to get their way at the expense of others. We should consider, for example, the Jim Crow laws in the South. Immigration laws help to maintain certain racist stereotypes and prejudices. Real estate tax breaks help encourage de facto segregation.

            SODOMY AND 'VICTIMLESS CRIMES' LAWS

            Libertarianism holds that a particular behavior should be a crime only when the behavior harms another or directly violates the free consent of another adult. Stealing, assault and murder remain crimes. Consensual sexual acts (in private), personal use of drugs, gambling, prostitution, adult pornography and even adultery are consensual and should not be crimes just because of the inability of some people to control themselves. Under libertarianism, there is no need for the state to make subjective (and unconvincing) "moral" distinctions between consensual behaviors.

            Libertarians oppose laws criminalizing private sexual acts between consenting adults. The notorious Bowers v. Hardwick decision in 1986 upheld the Georgia sodomy law. Sodomy laws, in about half the states, effectively make gays into unapprehended criminals. They are often used to justify other government abuses of gays, such as denying them custody of their children after divorce.

            It is probably very difficult to overturn all sodomy laws under current constitutional precedent, although Romer v. Evans (1996) may eventually invalidate all homosexual-only sodomy laws, since it prohibits government action motivated by mere animus against any group.

            As for drug-use issues, patients with AIDS or cancer should be allowed to obtain marijuana in situations where marijuana may provide them with relief from the symptoms of chemotherapy or the wasting of the diseases themselves. Libertarianism also supports the idea of home HIV test kits, which can be used in complete privacy.

            FREE SPEECH ISSUES

            Libertarianism values the free flow of information in public discussion in all media: broadcast, motion pictures, books, periodicals, and most recently the Internet. Libertarianism opposes censorship, which some conservatives support according to the view that some vulnerable persons are harmed by access to certain controversial materials. Recently, Congress has attempted to regulate the display of information in electronic media, including individually owned web pages. Although these attempts were declared unconstitutional, they are still a threat. Clearly, government, if allowed, could prohibit the dissemination of much material educating the public about sexual orientation and about safer sexual practices in an age of sexually transmitted diseases.

            Libertarianism recognizes that some speech activities are effectively carried out as privately owned businesses. Therefore, government practices and regulations which discriminate against individual business owners (as opposed to larger companies and organizations) hinder free speech. These regulations range from discriminatory treatment of health care premiums for the self-employed, to zoning regulations imposed on private business owners.

            Libertarianism also recognizes that, while the copyright laws are important to protect intellectual property, they could easily become a hindrance to scholarship; furthermore various intellectual property torts, when the tort system is abused, hinders publication and expression of ideas. For example, libertarianism would oppose punishing publishers and authors of books on weapons for crimes committed by readers of these books. Likewise, libertarianism would protect people who disseminate information about sexual practices in this age of sexually transmitted diseases.

            Libertarianism opposes the use of tax monies to fund the speech of others. This is viewed as an infringement upon free speech. So libertarianism would oppose the National Endowment for the Arts, and the use of mandatory student fees at state universities to fund political organizations, even those which advance civil rights causes. With various proposals, libertarianism encourages the privatization of schools and libraries.

            THE MILITARY

            First, we should remember that right now, the government still operates a Selective Service system, and does have the legal right to draft young men (it does require their registration at age 18). This requirement is inherently discriminatory with respect to gender, and furthermore potentially requires involuntary servitude.

            For those who volunteer to defend our country, the government owes a certain respect to basic privacy once those servicemembers are advanced enough to "live their own lives." With respect to gays in the military, the practice of excluding "open" or "suspected" homosexuals, whether by outright "asking" or by the "Don't Ask Don't Tell" policy in effect since 1993, represents a gross invasion of privacy. Particularly galling are the witch-hunts that still are conducted to ferret out gay servicemembers.

            Remember, too, what a draft in combination with a ban against gays can imply. That is, the government can legally draft young men, identify them as gay, and set them up for later discrimination. The military ban obviously sets a bad example for various civilian areas such as teaching and law enforcement, as well as the Boy Scouts.

            GOVERNMENT EMPLOYMENT

            Libertarianism would oppose all discrimination in public employment, and this would apply to the military, to holders of security clearances, law enforcement, and teachers. However, libertarianism recognizes that public employment would be significantly reduced in a libertarian society.

            WEAPONS AND CRIME

            Libertarians believe that law-abiding citizens should be allowed to carry weapons. Certainly this is relevant especially to gay men, who are often mugged or bashed near their homes or establishments.

            Libertarians believe that citizens should be able to use force to defend their own properties from intruders (and not only when there is immediate threat to life). This is of particular interest to gays, who may be more likely to live alone and have security concerns.

            Libertarians generally believe that all violent crimes should be punished according to the severity of the crimes, and not the identities of the victims. While the law has always recognized "motive" as a relevant measure in sentencing for crimes, libertarians do not believe that "hate crime" laws are a particularly effective deterrent, because they tend to send the message that other violent crimes are somehow more tolerable.

            MARRIAGE

Libertarian principles view marriage as a private contract (which could even be a lifetime covenant) between any two consenting adults. The only proper role of the state is to enforce the obligations of the contract. The state should not itself give privileges (such as tax benefits) to people merely because they are married. (Nor should it cause tax penalties because of such relationships, and this actually happens in certain cases.) However, it is possible that private interests may rightfully give such "married" persons privileges (such as airline discounts) when they can show they have such a contract.

Libertarianism insists that same-sex couples should be treated exactly equally before the law as opposite-sex couples.

Of course, marriage has long been a cherished social institution. In practice, there are many benefits given by the state to married couples, such as access to covering spouses with pre-tax health care benefits. As a matter of logic, these benefits must be subsidized by those who are not legally married. Perhaps we can argue that marriage ultimately pays for itself in a more productive society. Nevertheless, in today's world, adults who enjoy a legally recognized opposite-sex sexual relationship essentially enjoy an indirect subsidy from those who do not. This is wrong. The usual arguments against same-sex marriage demonstrate circular "reasoning."

CHILD CUSTODY

Libertarianism would hold that the most qualified parent (gay or not) should retain custody of children after a divorce. Libertarianism would also hold that adoptions should be placed with the best possible available families or persons, and these may not necessarily always be headed by heterosexual couples.

DISCRIMINATION BY PRIVATE INTERESTS

Libertarianism asserts the right of every person to use his property (that in which he has invested his own resources according to his own priorities) without interference from government, unless the person directly harms others.

Therefore, libertarianism is, in principle, opposed to conventional anti-discrimination laws, even those which deal with race, gender, national origin and handicap.

Of course, one asks, should large "private" organizations be treated like individuals, especially since they are essentially somehow chartered by the state. One concern would be that distinguishing between private entities according to size or according to profit status quickly brings up free speech concerns.

But weren't racial discrimination and, say, anti-Semitism and other similar problems so pervasive that they needed to be remedied by law to establish that they are unacceptable? Wouldn't private discrimination reappear if the state were not there to prevent it from occurring out of "competitive advantage?" I cannot say that it could not, although the wealthier society gets, the more effective is the free market in discouraging discrimination. As a practical matter, no one believes our current civil rights laws should be dismantled.

So should sexual orientation be added to the list of attributes for which no one may discriminate? Carried even further, should homosexuality confer minority or suspect class status? One can advance some arguments as to why it should not. For example, gay-related discrimination laws (such as the proposed national Employment Non-Discrimination Act [1993]) might send the message that discrimination is acceptable unless explicitly prohibited by law. Such legislation might interfere with right of private landowners or small employers to enforce their own moral or religious convictions. It might make employers afraid to hire people who "look gay" out of fear of litigation. It might force gay establishments, against their will, to open themselves to straights. It might be difficult to enforce without establishing a system of reverse preferences.

I do not question that there have been egregious examples of anti-gay discrimination. Cracker Barrel restaurants noted "employee is gay" in its personnel records when it fired cooks and waiters. A small accounting firm was able not only to fire a gay associate but also to sue him for post-termination competition because the gay employee had actually signed a contract that excluded "homosexuality." But such contracts in the private employment world are extremely rare. I found it difficult to find good employment in Dallas late in the 1980's partly because as a never married male, I was presumed a health insurance risk for AIDS.    

We do know that with race, for example, institutions have long been involved in a controversy over preferences. While "affirmative action" may have been intended to promote a no-discrimination society, in practice it has become associated with privileges for some minorities (at least to the point that employers must follow measures to prove they don't "discriminate"). Some will articulate arguments that some preferences, to offset the supposed social advantages of being born white or born whatever, are necessary to level the playing field at a high level, even though these preferences may result in hideous injustices in individual cases.

The Boy Scouts have recently added controversy by adamantly refusing to allow known gays to remain members or scoutmasters. The Boy Scouts may be influential; but they are still an essentially private organization, although in some communities their dependence on public facilities is troubling.       

There is one good, quasi-libertarian argument for measures like ENDA. Let us accept the fact that homosexuality does connect to behavior and can behavior ever be immutable? Well, so does religion. We hold the practice of religious faith such a fundamental right that even private interests, in most circumstances, must not be allowed to discriminate on the basis of religious practice (or lack thereof). Therefore, should not the choice of consenting adult sexual partner or significant other be granted a similar protection?

HEALTH CARE

Libertarianism is opposed to public funding of health care. The biggest objection is that public funding tends to politicize disease. Deciding whose illness gets the most funds becomes a political matter.

Libertarianism also opposes over-regulation of medical devices and pharmaceuticals. This is an important issue for people with AIDS who need new anti-viral drugs. (I'll add that some fringe elements of libertarianism oppose the idea that HIV is associated with AIDS that it was all some government plot. I disagree.)

Libertarianism envisions private and self-funding of health care, such as possibly the use of medical savings accounts. This could mean that persons who acquire HIV infection from their own past behavior might pay for more of their own medical care (although many do now); or that, since men with past homosexual activity cannot legally give blood, they should pay for their own blood even in emergency situations (that they should not expect insurance to pay for it). This is a brutal argument, but it is worth stating. We could make similar assertions about people who have harmed themselves through drug use, alcohol, tobacco, overeating, and any other risky behaviors.                                                     

PHILOSOPHY

Since the early 1970's a time marked by Watergate, suspension of the draft, the winding down of Vietnam, Roe v. Wade, and a more benevolent attitude by the American Psychiatric Association towards homosexuality public policy debate has become much more conscious of the rights of the individual apart from a person's association with a particular group representing a set of political interests. Of course, many pundits warn about the dangers of resolving moral issues in terms of abstract notions of individual rights and self-ownership. Rights, they say, are meaningful only in a social (or even religious) context, where they can construct a framework of ordered liberty.

Most people are accustomed to the idea that representative democracy should mediate the shared sacrifices and civil moral values that presumably are necessary for ordered liberty to survive and gradually become more prosperous. Democracy was an apparent improvement over all other historical (such as Hegelian) philosophies concerning the role and operation of the state. Government must presumably redistribute wealth to provide a safety net and provide a decent chance for the disadvantaged to overcome handicaps that they did not cause. Government must level the playing field. The problem is, of course, that over time the "sacrifices" tend to be determined by political coalition and muscle rather than well-thought moral principles. Government, when it tries to be responsible for all inequity in the world, tends to create dependencies. What starts out as "morality" melts into a spoils system where amalgamations of interests scheme to steal from one another.

There is no question that people inherit tremendously different opportunities, both from their genes and from their family circumstances. Ted Koppel's recent series on prison life has shown us the amorality that results in the worst backgrounds. But able and determined people often do overcome their own disadvantages. There is no principled way government can make everyone "equal" without destroying individual freedoms and individual choices. Everyone will just "live as they are." Whimsically, one friend suggested to me something like, "abolish all inherited wealth for one generation, then adopt libertarianism!"

I think that a moral philosophy of individual rights becomes ethically justified when the rights are paired with individual responsibilities and accountabilities. We would have to work toward a system in which everyone is truly accountable for the self. This is by far the simplest basis for a set of principles to maintain ordered liberty.

The social context of the past attitudes towards gay men (more so than lesbians) bears noting. Until recently (at least the Vietnam era) young men were expected to emphasize their supposedly "masculine" propensities to take risks and band together in competitive, rowdy group pursuits in order ultimately to become reliable providers for women and children. Society's survival depended upon this (as was most dramatically demonstrated on D-Day). Men were largely discouraged from developing sensitivity, goodness and other components of individuality on their own without the taming influence of women who were supposed to supply these missing attributes. If a few nerds or artists did so, that was all right as long as most young men couldn't find out about it. (Hence, the closet. "Real" men would scorn the nerds as parasitic "sissies" and really hate the sissies if somehow they reminded the "real" men of the vulnerability of their own manhood trappings or mocked these men's expected self-sacrifice.) For a short period, youthful passion could be catalyzed by opposites' sexual attractiveness as long as men (in particular) later learned a "deeper" sexuality (less dependent on visual satisfaction and residual reinforcement) through monogamous marriage and parenting, often without ever becoming fully cognizant of how society had collectively taken over many of their most intimate values. Less "sexual" young people found a place by taking care of other extended family members (necessary when there was less government safety net) unless they learned (with pastoral "help") a particular kind of aesthetic realism to help them find appropriately matched marriage partners after all. People who did not follow this obligation to marry or care for others "properly" were supposedly of bad character and not to be trusted. All of this constituted moral ukase, very rooted in moral collectivism and the "law of large numbers." Politicians and preachers exploited it, even if the real roots of homophobia lay closer to fear of physical and sexual failure.

If equality (or absolute "fairness") and a simple moral order (both for societal security and to protect more vulnerable people) is intended to become the objective function of policy, then open homosexual conduct with its apparent narcissism and unchanneled "selfishness" may become difficult to accept (other than tolerate at societal margins) and justify. One seems forced to resort to intellectually suspect appeals to total immutability. A closer look at gay partnerships, however, suggests the possibility of a world in which lifelong, committed same-sex marriages and families are accepted and even expected. Same-sex marriage may be preferable to remaining alone or to executing personal strategies which view sexuality as a mode of personal expression rather than as a disciplined way to become permanently important to other people. I cannot deny the possibility, envisioned by "liberals," that democracy, under the pressure to promote egalitarianism while providing security and stability, can grow more respectful of the interpersonal lives of gays. Yet any world set up largely by political barter is world much less encouraging for freedom of expression, and for the freedom to set one's own goals without the bureaucratic approval of others. With moral issues, political trading tends to slight personal responsibility in a way that actually insults gays and lesbians as individuals.

Today, society is precariously wealthier than it has been in previous decades, and indeed we may have reached a point where we won't survive unless we affirmatively embrace individual freedom and individual accountability, paired together as in a vector space. Lesbians and gay men seem, from a historical perspective, in a unique position today to lead this transition in subtle social values. But even in the way gays build and maintain relationships, ranging from partnerships to significant others, they need to be mindful that their success or failure will become an evermore individualized and local result, depending upon the abilities, effort, and appropriate charity of each person. A world in which people choose and execute their own goals is a world in which many goals appropriate for some people are totally wrong for others.

First printed (slightly condensed but with emphasis) in The Minnesota Libertarian, October 1998.

Appendix 9 - A Note on the "Age" of the Bill of Rights

The cover (of the DADT book in first 1997 printing) states (incorrectly) that the Bill of Rights is about 160 years old. Actually, Congress approved of the first ten amendments in 1789 and they became law in 1791 (on December 15) with Virginia's ratification (the 11th state). So a more reasonable approximate age is 210 years! Two of the original twelve amendments did not get ratified. James Madison had actually started with 17 amendments, yet at one time Madison had actually opposed creating a bill of rights! In 1833 (and this is a little more than 160 years ago), the Supreme Court, in Barron v. Baltimore, ruled that the Bill of Rights (understood as the first ten amendments) applied only to national government and not to the states. Madison had originally wanted to prevent the states from violating certain rights. About thirty years after the adoption of the 14th Amendment in 1868, the Supreme Court began to extend some of the bill of rights to the states, making them "complete."

Barron v. Baltimore did articulate another important idea. Since the Constitution gave specific powers to the federal government, the Bill of Rights (or any subsequent addition to it) could only constrain the already delegated powers. Even as many of the provisions of the Bill of Rights do now apply to the states, one could invent the same kind of reasoning relative to powers already given to states. The amendment that I proposed in Appendix 1 would still conform to this notion, even though most of the discussion in this book concerns more generic human rights that any moral society now should respect.

Here follows a short list of other documents that preceded the Bill of Rights:

English Magna Carta (1215)

English Petition of Right (1628)

English Bill of Rights (1689)

The Rights of Colonists and a List of Infringements and Violations of Rights (1772)

Declaration of Independence (1776)

Virginia Declaration of Rights (1776)

Northwest Ordinance (under the Articles of Confederation, about 1780)

Constitution of the United States (1787; ratified as "the law of the land" in 1788)

(Original) Bill of Rights: presented in 1789, ratified (but simplified) in 1791