Anti-Discrimination Laws vs Freedom of Association

by | May 3, 2015

Anti-discrimination laws make life more difficult for the independent and self-responsible, while mainly helping out the litigious and the victim-oriented.


Should gay and lesbian persons have special anti-discrimination status under the law, just as blacks and other groups do? In other words, should a gay or lesbian person have the right to sue, fine or even jail somebody who (actually or allegedly) commits discrimination against them, for any reason?

An overwhelming majority say yes, according to a poll reported at

Nearly three quarters of Americans say sexual orientation should be protected from discrimination the same way race is, according to a new Bloomberg Politics poll.

The finding of widespread support for legal protections for gays and lesbians comes in the wake of the contretemps over religious-liberty laws in Indiana and Arkansas, and with the Supreme Court expected to rule broadly on the constitutionality of same-sex marriage in June.

“Gay people and people of color are going through the same fight to be accepted,” said Brandi Jackson, a 31-year-old nursing assistant from Baltimore who is African-American and participated in the poll. “It doesn’t matter your race, your orientation. Everybody should be treated fairly.”

Eighteen percent said sexual orientation should not be protected the same way race is, and eight percent said they were not sure. The poll of 1,008 adults was conducted April 6-8 by the West Des Moines, Iowa-based Selzer & Co. It has a margin of error of plus or minus 3.1 percentage points.

The 74 percent who say “yes” to anti-discrimination laws for gays and lesbians take it for granted that anti-discrimination laws (for any segment of the population) are valid, in the first place.

But are they? Anti-discrimination laws — whether in support of blacks, gays, women, the disabled or any other group — violate the right to freedom of association. In order to support anti-discrimination laws, logically (and implicitly) you must be against the right to associate and/or do business with whomever you please. Because you cannot have both.

Those supporting anti-discrimination laws for gays and lesbians no doubt take it for granted that such laws are in the best interest of gay and lesbian persons. But are they, really?

What would such laws look like? With respect to anti-discrimination laws for blacks, it’s almost always easy to tell whether a person is black/African-American, or not. If a black person wishes to prove a discrimination claim, he doesn’t have to prove that he’s black. He only has to prove that the discrimination took place, often an impossible task in and of itself.

But sexual orientation, despite what people might assume about stereotypes and mannerisms, is not self-evident, as race almost always is.

Does it occur to anyone that a person might lie about his or her sexual orientation, in order to make a legal claim against another, whether out of spite or for financial gain? While this might be a boon for trial attorneys and government regulators, what might it do to the already overburdened legal system?

Will forcing people to accept and even endorse homosexuality actually be good for gay and lesbian persons? Or will it lead to deep-seated resentment and perhaps even greater outbursts of intolerance, hatred, and authentic crimes? How does it advance the individual rights of a gay or lesbian person to violate the individual property rights of a Christian conservative who chooses not to make a wedding cake for a gay wedding? What kind of person wants another to do something against his or her will?

Will anti-discrimination laws for gay and lesbian persons lead to affirmative action quotas as happened with blacks and other groups? Is it really in the best interest of minority groups to be singled out in this way, fueling the perception of being given special favors?

Social attitudes regarding homosexuality have shifted dramatically in the last two or three decades. Interestingly, this has happened without a single government law or mandate, on the national level, requiring people to change their minds. Attitude change did not just occur in San Francisco, Massachusetts and New York City, but throughout the land, as this poll illustrates.

A similar thing happened with smoking. Anti-smoking laws only followed a widespread change in attitude about smoking; such laws, whatever you think of them, did not create the attitude change, nor could they.

Guns do not change minds; only minds do. If anything, guns, prisons and fines make the problems worse, particularly when they’re used as a substitute for persuasion.

I know this from years of studying and practicing psychotherapy. Yet most of my colleagues, while they agree with me on the individual level, would never agree with what I’m saying on the political level. It’s as if something magically and mysteriously changes when you go from talking about people at the individual or family/relationship level to the social level. When people utilize force in personal relationships, we call it dysfunctional and abusive; when people try to force one another to think or act differently at the social level, it’s called enlightened and progressive. Yet what is society, other than a large number of individual people?

Here’s another question nobody (to my knowledge) is asking. Will people be forced to reveal their sexual orientation on various government forms, insurance or other means of documentation required in our society today? Will our passports and driver’s licenses specify sexual orientation? The government could arguably say, “Yes,” on the premise that it’s necessary to fight anti-discrimination and gather data for purposes of justifying government offices, and so forth. Perhaps the government would not mandate it, but merely insist on it in order for gays and lesbians — as a protected group — to get various benefits, subsidies, grants or other kinds of payments from the government.

Do gay or lesbian individuals necessarily want the government (or others) having this information? Administrations come and go. Some are in favor of fighting gay and lesbian discrimination, while others will be just the opposite. Today’s President Barack Obama or President Hillary Clinton could be tomorrow’s President Rick Santorum or someone equivalent. Do gays and lesbians really wish to expose themselves to this kind of risk?

It seems to me that anti-discrimination laws make life more difficult for the independent and self-responsible, while mainly helping out the litigious and the victim-oriented. I don’t envy black people, particularly the competent, independent and individualist ones, who must fight the widespread feeling that they got where they are by special favors, rather than actual achievement. Anti-discrimination laws set up this kind of mindset. I don’t see how this is beneficial for any group.

The eighteen percent who do not favor anti-discrimination laws for gays and lesbians will probably say, “Those laws are fine for black people; but not for gays and lesbians. It’s a different matter.” One can make this case, pro and con. But ultimately, that’s not a compelling counter-argument. If you accept the validity of anti-discrimination laws for one group, it makes sense (and seems only fair) to extend them to another. If you have anti-discrimination laws for blacks, women, the disabled and gays, you’ll eventually need them for some other group. In fact, there will be a long waiting line. Let’s be real. Politicians aim to please select pressure groups who bring them votes and power, not to administer anything close to actual justice. It’s an endless regression until, ultimately, everyone is protected against discrimination from everyone else, and nobody has the right to freedom of association at all — other than with the government’s permission.

In the end, everyone (gay/lesbian/black/white) must decide: What’s most important? Does freedom of association trump everything else, or not? If it does not, then are we to permit freedom of association only when it feels right, or when the government feels it’s right, while not allowing it in other cases? Do some people get to associate freely, while others do not? Isn’t that a more vicious form of discrimination than anything going on now?

In a truly and consistently free society, the government may not outlaw discrimination, but it also may not foster, mandate or encourage discrimination, either. When we think of Jim Crow laws or South Africa’s apartheid, we’re talking about government-mandated discrimination. Of course that must be outlawed. But outlawing government-mandated discrimination does not mean it’s equally valid to outlaw privately based discrimination.

It’s ironic that the whole basis for gay rights or the right to gay marriage centers on privacy. “What I do with my own body and sexuality is my own business, so long as I don’t rape another person, or molest a child.” If others think homosexuality is perverse, immoral or simply disgusting, they’re entitled to their opinion, but that opinion has no legally imposing status.

Yet it’s the advocates of anti-discrimination laws who seek to impose their own will and judgment on private individuals who wish to act on their own conclusions, just like gay or lesbian persons wish to act on theirs.

“Discrimination” is something we do with our minds. It can be valid or invalid, rational or irrational, mean-spirited or benign, or perhaps just a matter of opinion. Regardless, we do it with our minds. The government has no right to rule our minds. We must all be free to make our own decisions, without government interference, so long as we do not interfere with the right of another to do the same.

Refusing to do business with someone is every bit as much your right as refusing to be friends with someone. I don’t hear anyone proposing laws (at least yet) to outlaw refusal to be friends with a gay/lesbian person, or black person; by what right do we pass laws outlawing people making choices in business? Your business is your business, whether it’s your personal life or your money-making or professional life.

It’s often difficult to discriminate against gay and lesbian people, unless you start asking them questions about their sexual orientation, or you operate on stereotypes that may or may not be reliable. Demographically, since gay people — as a group — have children less often than heterosexual people, they tend to have more expendable income. So long as businesses wish to make money, they will gladly accept the dollars and cents of gay and lesbian persons with money to spend. Rational business people, who by definition must be concerned first and foremost with profit to survive in a free marketplace, necessarily must cater to everyone they possibly can. While they don’t have to cater to everyone, most will, and are glad to do so. If that weren’t the case, there would not be 75 percent of the population calling for anti-discrimination laws for gay and lesbian people.

Most people, sadly, don’t think in principle. They will call my position “ideological,” i.e., too deep, too abstract, and therefore automatically wrong. I get this all the time.

Unfortunately, it’s an abstract principle you’re relying on when you take it for granted that you have a moral and political right to choose your own friends, business associates and even your business customers, if you want to run your business that way. You can minimize or even mock the idea of general principle, but abstract principle provides the difference between life in a relatively free country like ours and life in a totalitarian, life-hating (and certainly gay-hating) regime like Iran, or many other places.

In fact, even if you’re in favor of anti-discrimination laws, then you’re relying on abstract principles of some kind. It’s your responsibility to identify and name those principles aloud, and explain why those principles, in your view, trump the more basic right to associate with whomever one chooses.

Dr. Michael Hurd is a psychotherapist, columnist and author of "Bad Therapy, Good Therapy (And How to Tell the Difference)" and "Grow Up America!" Visit his website at:

The views expressed above represent those of the author and do not necessarily represent the views of the editors and publishers of Capitalism Magazine. Capitalism Magazine sometimes publishes articles we disagree with because we think the article provides information, or a contrasting point of view, that may be of value to our readers.

Have a comment?

Post your response in our Capitalism Community on X.

Related articles

International Criminal Court (ICC) Lacks Jurisdiction Over Israel in Gaza

International Criminal Court (ICC) Lacks Jurisdiction Over Israel in Gaza

Israel is not Hamas, and the rules of the ICC are not the same for democracies that live under the rule of law and terrorist groups that live under the rule of lawlessness. This distinction is central to the legitimacy of the ICC and its rule of complementarity. Without recognizing it, the ICC would become a partisan “court” of politics rather than a neutral court of objective law.

No spam. Unsubscribe anytime.

Pin It on Pinterest