The most controversial measure on the ballot this April, without doubt, is Prop 5. If passed the initiative would add homosexual and transgender identity to the list of protected categories under Title 5. Proponents of the measure are framing the argument as a fight for equal protection under the law, as a means to stand athwart hatred and bigotry. A common slogan of theirs has been “Stop Hate, Vote Yes on 5.” Conversely, the primary opponents of the bill have cited religious liberty and the right to conscientious objection.
I believe the supporters of Prop 5 are on to something. It is fundamentally unjust to have a law in place that grants legal protections to a group of people on the basis of their religion while simultaneously excluding sexual orientation as a protected category. The problem is that this is the very nature of anti-discrimination laws; they are inherently unfair.
What Prop 5 has brought to surface is the general hypocrisy of anti-discrimination laws. Anti-discrimination laws fail in their application because they can never completely cover the endless number of group that may fall victim to discrimination.
Moreover, the principle that this legislation puts forth is that a majority vote should decide which kinds of discrimination are to be outlawed. It is this same principle that permits the positive discrimination that permeated the South during the Jim Crow era. What we should be advocating for instead is an end to all anti-discrimination laws in the private sector where there is no monopoly on public accommodation.
There are a few things to consider regarding the necessity of anti-discrimination laws. The Civil Rights Act of 1964 is the looming issue in the background and is often where discussions over these laws hearken back to. I am willing to cede that the act was probably needed during the period when the nation was freeing itself from the effects of institutional racism; it did not merely reflect the mores of the day but actively helped to shape them.
The social stigma surrounding homosexuality is in a very different place today. According to Gallup, Americans have become increasingly tolerant of homosexuals over the past few decades; today, more than half of the population has no objections. This raises serious doubts as to the necessity of adding “sexual orientation” to the anti-discrimination laws in Anchorage, because there doesn’t appear to be a serious problem.
Additionally, proponents of Prop 5 fail to take into account the practical economic effects of the initiative. The group this law is aiming to protect may actually cost both itself and the community a great deal in the grand scheme of things. Professor Richard Epstein at the University of Chicago Law School has written extensively on the negative consequences of anti-discrimination laws in the United States for minorities and women. He points out that passing laws that make it illegal to hire on the basis of race or sex hamper the efforts of private affirmative action.
Furthermore, it is incredibly difficult to actually prove a case of discrimination in a court of law. Most informed employers will not openly come out and admit to discriminatory hiring practices in violation of Title 5. What the courts have relied on instead is disparate discrimination. If, for example, an employer required applicants to take an aptitude test, which resulted in vastly different results among groups, then a plaintiff could receive payment for damages on the basis that the test was used as a means of discrimination.
These types of litigation affect both the willingness of an employer to hire less experienced workers and they take away tools that could otherwise assess the merit of perspective employees. They shrink the size of the pool for employment by increasing the cost of doing business and raising the uncertainty in the marketplace, which hurts everyone. The only real winner in this situation is the lawyer who will find plenty of employment.
The market already corrects for discriminatory practices because businesses who actively seek out the most qualified workers at the lowest cost are the ones who succeed. The consumer is largely unaware of whether the laborer of a product is gay, straight, white, purple, or brown. These laws mistake the private sector as the source of the problem when the real malignancy of discrimination occurs when bigots gain control over the levers of government. As long as we allow government to have power of private discrimination then the danger will always remain. What’s important is that we protect everyone from harm, seizure of property, and guarantee enfranchisement so that government does not serve one group over another.
We should also recognize that in a free society we can’t always use coercion when we don’t get our way. It is in the best interest of all parties involved to vote no on Prop 5 lest we increase the cost of doing business in Anchorage and further grant power to the state where it shouldn’t have a say to begin with.