“Hate crimes” legislation and discrimination on the basis of sexual orientation were the topics of the June 12 edition of C-SPAN’s Washington Journal, which featured a debate between Kenneth Connor of the Family Research Council and Elizabeth Birch of the Human Rights Campaign, “America’s largest gay and lesbian organization.”

Connor criticized the federal intrusiveness that would result from expanding anti-discrimination law to include homosexuals.  He argued that the federal government has no business dictating employment criteria to proprietors.  Birch asserted that this meant Connor ultimately wanted to repeal Title VII of the 1964 Civil Rights Act, which he denied.  To the contrary: Connor claimed that Title VII’s classes are legitimate but that adding sexual orientation would be wrong because homosexuality is a behavior.  

Curious if the Family Research Council has formalized this opinion, I went to its website and found an assessment by Dr. Timothy J. Dailey (http://www.frc.org/get/if01g1.cfm) of the legislation in question: the Employment Non-Discrimination Act (ENDA).  “It grants special rights to homosexuals while ignoring those of employers,” he writes.  “The federal government should not force private businesses to abandon their moral principles.”  However, Dr. Dailey also defends the current anti-discrimination framework as part of his case against ENDA: “[ENDA] is misleadingly referred to as a logical extension of Title 7 of the Civil Rights Act.  While the Civil Rights Act was enacted to protect the rights of racial minorities, ENDA is aimed at providing heightened protections for a particular sexual behavior—homosexuality.”

Yes, homosexuality is a behavior, unlike race, sex, etc.  From a proprietary perspective, though, what does that matter?  For example, say a business owner refuses to hire applicants X, Y, and Z: X, because he is homosexual; Y, because he is Hispanic; and Z, because he is Hindu.  Whether these acts of discrimination are equally judicious may be debated, but each should be within the business owner’s discretion.  Each is a legitimate decision as a matter of property rights, and racial or religious minorities should have no right to force employers to hire them.  

The business owner’s decisions may be myopic or rude, but they don’t abridge freedom.  Anti-discrimination laws, on the other hand, trespass upon proprietary autonomy and threaten expropriation for particular exercises thereof.  Prof. Richard Epstein observes that “private property entails the right to exclude others from one’s premises.”  Anti-discrimination laws undermine this vital entailment through an aggressive intolerance masked by a compassionate patina.  The inclusion that Title VII and its progeny purport to foster is predicated upon coercion—that is, violence.

Just as the criminalization of sodomy implies a mandate to criminalize fornication, the criminalization of racial or religious discrimination implies a mandate to criminalize any form of discrimination.  Tyranny is an incremental pestilence, and surrendering one attribute of freedom facilitates the destruction of freedom itself.  Mr. Connor and the Family Research Council correctly argue against ENDA; it is irreconcilable with constitutional order and the rights of ownership.  They fail, however, to recognize ENDA’s roots in Title VII.  To oppose one and support the other is tenuous conservatism at best.