In my last Public Discourse essay, I noted that there is a tension between civil liberties and certain civil rights claims. Generally, our civil liberties protect our freedom to make our own choices in life. But some civil rights claims—the ones that assert a right to be immune from discrimination practiced by our fellow citizens—require the government to constrain people’s free choices.
This tension is unavoidable in a society that strives to be both decent and free. A decent society will admit that there must be some limits to individual freedom, that some uses of individual freedom are wrong enough or damaging enough that they should not be permitted. At the same time, a free society will admit that many uses of freedom will have to be tolerated, even if they seem unwise or even inappropriate to those who govern. After all, it makes little sense to speak of a free society in which people are free to do only what is officially approved.
The tension between these two principles may be theoretically problematic—at least to those who demand that their society conform to a particular theory. That tension, however, is perfectly satisfactory from a practical point of view. The good society involves various different kinds of goods. These goods cannot all be maximized: maximization of one necessarily entails the minimization of others, and the absolutization of one necessarily means the annihilation of the others. A healthy society, then, tries to strike a prudent balance among these various goods, by keeping them all within reasonable bounds.
Right now, however, the healthy tension between civil liberties and civil rights is in danger. The threat comes from an effort to resolve the tension decisively in favor of a modern conception of civil rights at the expense of more traditional notions of civil liberties. This project, if successful, would do violence to the diverse and manifold character of the political good. The result would not be the preservation of pluralism but its destruction.
Constitutional vs. Statutory Rights—Which Wins?
The specific problem to which I refer is the demand for civil rights laws to proscribe discrimination on the basis of “sexual orientation and gender identity” in service and employment. To be clear, I do not intend to offer a blanket justification for such discrimination. On the contrary, people’s sexual practices are generally nobody else’s business, so the question of discrimination on the basis of such practices should not even come up in most situations.
The problem, then, is not calls for gays, lesbians, bisexual, and transgender (LGBT) people to be free from invidious and arbitrary discrimination, but calls that they be legally protected from discrimination even when that discrimination arises from a fellow citizen’s effort to live out his own moral and religious convictions. To take the most obvious examples, when conservative Christian schools refuse to hire an openly gay teacher, or when religious conservative bakers decline to bake and bring cakes to same-sex wedding ceremonies, they are not engaging in pointless or punitive discrimination. They are merely trying to protect their own consciences by not collaborating with a practice they cannot approve.
Nevertheless, some insist that such people should be made to comply. The school and the baker, they say, are engaged in unacceptable discrimination that should be forbidden by law.
Here, the conflict between civil rights and civil liberties becomes acute: one person’s demand for non-discrimination curtails another person’s freedom to live as he or she thinks best. The demand that the civil rights claim prevail in such cases is all the more striking because, as Roger Pilon notes, it turns “the Constitution upside down” by making “statutory rights created by our anti-discrimination law trump the constitutional rights”—freedom of association and free exercise of religion—“the First Amendment was ratified to protect.”
To many Americans, as to Pilon, this will seem topsy-turvy. As important as our statutory rights are, we are supposed to be committed to the idea that our constitutional rights are most fundamental in our legal system. Such rights, after all, are part of the fundamental law of the land. Civil rights that protect people from discriminatory treatment by government stand on a par with our constitutional civil liberties, because both are found in the Constitution: the former in the Fourteenth Amendment and the latter in the First Amendment. Civil rights that protect people from discrimination by their fellow citizens, however, rest on statutory law. It therefore seems strange that some Americans would treat them as more compelling than the constitutional liberties that are supposed to provide the common ground upon which all Americans can stand.
To understand the radical implications of these new civil rights claims, we need to look at them from the standpoint of the ideology that insists upon them: the ideology of Progress.
The Ideology of Progress
Nothing is so dear to contemporary American liberalism as its belief in Progress, understood as a necessary movement of History in a particular direction, a direction that American liberals believe is both inevitable and desirable.
This belief shows itself continually in our ongoing debate about the place of sexual morality in society—as, for example, when liberals hold that those who oppose same-sex marriage are “on the wrong side of history.” For those who hold such an ideology, it seems perfectly reasonable to hold that our statutory civil rights to non-discriminatory treatment in the private sphere are more important than our constitutional rights. The latter may belong to our so-called fundamental law, but the former have been much more hallowed by the operations of Progress.
In the progressive view, modern civil rights laws represent a higher form of moral consciousness than was available to the framers of the Constitution. The conception of rights embodied in modern anti-discrimination law is more enlightened and more humane—more progressive—than the rights embodied in the Constitution. And, of course, contemporary progressives have the theoretical tools—provided by the “living Constitution”—to reform our constitutional rights so that they can be made compatible with, by being made subordinate to, contemporary expansionist claims of civil rights.
None of this is to say that the conservative who does not believe in this conception of Progress cannot support some forms of civil rights laws that forbid discrimination by private citizens. Such a conservative could support such laws as remedying, for example, the lingering effects of grave evils such as slavery and racial segregation. This is very different, however, from regarding such civil rights claims as fundamentally morally superior to other, older rights that are also important to the character of our society.
In this light, we can see how radically transformative the present-day anti-discrimination project really is. Last year in Public Discourse I remarked that the advance of sexual liberation has depended on a kind of falsehood, the assurance that “if you like your morality, you can keep your morality.” It turns out that the stakes are actually even higher: not only will you not be able to keep your traditional morality, you won’t be able to keep your traditional liberties, either.
This prospect is obviously frightening to moral traditionalists and religious conservatives. In truth, it should also be troubling to thoughtful citizens of all religious and political persuasions, for this imperialistic version of civil rights is seeking a radical transformation of our society that is not guided by reason but by an unreasoning willfulness.
The New Morality
What kind of progress is this? It is certainly not progress in freedom. If the left demanded only that moral and religious conservatism lose its formerly dominant place in our law—a project in which it has already largely succeeded—then it could claim to be a movement pursuing increased freedom. It is not content, however, with that limited aim. It seeks instead both to displace traditional morality and to replace it with a new sexually liberationist morality that requires the compulsory respect even of people who don’t agree with it.
In the old America, there were laws regulating sexual conduct, but freedom of association was largely unimpeded. In the new America, there will be no laws regulating sexual conduct, but freedom of association will be limited in defense of sexual liberation. This is not an increase in freedom but just a different kind of freedom. Indeed, such a society might turn out to be even less free than it was before. After all, while the old America had laws against, say, homosexual conduct, those laws were rarely enforced. It is clear, however, that the proponents of the new civil rights expect them to be very vigorously enforced. And they have the institutional apparatus—well-funded organizations such as the ACLU—to see to it that they are vigorously enforced.
Proponents of the new civil rights will probably respond that this movement represents not a progress in freedom but a progress in equality. This makes some sense at first sight: civil rights claims are claims to a kind of equality, and much of modern liberalism seems to be animated by a desire to pursue equality as the most important social good. Even this claim, however, does not stand up to careful scrutiny, for the new non-discrimination movement actually seeks to enforce a kind of inequality.
Under the new dispensation, organizations that are indifferent to questions of sexual morality, or that are in favor of sexual liberationism, will be free to conduct themselves according to their own standards. If a liberal college refuses to allow a morally traditionalist student group to use its classrooms, it will have no problem. If a liberal school fires a teacher who has spoken publicly in defense of traditional sexual morality, it will have no problem.
On the other hand, if a religious college refuses to provide rooms for a gay rights organization, or if a religious school fires a teacher who comes out as openly gay, they will have problems. They will be accused of unlawful discrimination on the basis of sexual orientation and will be sued accordingly.
The upshot of the new non-discrimination is that associations that accept the new sexual morality will be able to live out their commitments more freely than associations that do not accept it. This is not equality.
What is marketed here as progress, then, is not really progress. It cannot be justified by a reasonable and neutral appeal to ideas, such as freedom and equality, that Americans hold in common. It is not progress, because progress implies an intelligible movement in the direction of an agreed upon end. It is only change—a movement that some people want and are going to insist upon because they think they can get it. It is an exercise in raw, unreasoning power, and this should be a matter of concern to all—not just religious conservatives.