The Employment Nondiscrimination Act (ENDA) passed the Senate on Thursday. The bill, which would ban discrimination based on the amorphous and ill-defined concepts of sexual orientation and gender identity, has long been the dream of the rainbow crowd. Speaker of the House John Boehner may not call a vote on the bill and it probably wouldn’t pass the Republican-controlled House even if he did.
ENDA is toast. For now.
Thank goodness for that. Government imposing nondiscrimination laws on supposedly sovereign citizens and their enterprises is silly at the very least, and usually a violation of constitutional rights.
Every economic transaction has two ends—a buyer and a seller. Both ends of the transaction should be completely voluntary. Employment is an economic transaction like any other, with the employee selling his labor to the employer at an agreed upon price. Employees and employers have to reach a mutually acceptable agreement. The government should never mandate that citizens engage in economic transactions against their will.
In the absence of a contract, employers should have free reign to fire or not hire whomever they want, just as employees have the ability to quit or not take any job that they want.
Unfortunately, this issue is clouded by a number of very emotional issues, to include racism, though it doesn’t have to be that way. Nondiscrimination laws are about the ability of free people to make decisions without the crushing power of government hanging over their heads. The issue doesn’t boil down to being “pro-discrimination” or “anti-discrimination.” It’s about freedom.
The usual rebuttal to my argument is that it represents a giant step backward to the bad old days of Jim Crow. Such historical ignorance abounds. Jim Crow laws didn’t permit discrimination, they mandated it. People in the segregated South were not free to serve whomever they wanted. They were compelled by law to serve one race or another, and always in separate sections. In any case, it’s more than a little far-fetched that a business, in this day and age, would refuse to serve black customers. If any business did, the proper response would be to exercise some much deserved public shaming by means of a boycott, not to run to the government and force the business owner into involuntary servitude.
That’s what nondiscrimination laws are—involuntary servitude laws. Take, for example, the case of Elaine Huguenin, a devoutly Christian photographer in New Mexico. In 2006, a lesbian couple approached her to photograph their commitment ceremony. Huguenin, thinking that she had the ability as an independent businesswoman to decline a contract, told them no. Silly woman thought this was a free country. One of the two lesbians filed a complaint with New Mexico’s Human Rights Commission, a misnomer if ever there was one. After years of fighting in court, the photographer was forced to pay the woman $7,000 in damages.
Here’s what Huguenin should have done. She should have accepted the contract, then arrived wearing leg irons and an orange jumpsuit. The message would have been clear—you have made me your prisoner. Mrs. Huguenin did not want to serve this couple, so the couple appealed to the government to force her to serve them. By definition, that is involuntary servitude, which is prohibited by the Thirteenth Amendment’s Section One. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
One hundred and fifty years after the Emancipation Proclamation, Democrats are still fighting for involuntary servitude and the party of Lincoln is still fighting against it. Some things never change.
The Supreme Court of New Mexico did not decide in Huguenin’s favor. It ruled that Huguenin had violated the rights of the lesbian couple, not the other way around. This assumes that the lesbian couple has a right to Huguenin’s labor, which they do not. The opposite is true—Huguenin has the right as a sovereign individual not to photograph their wedding.
Homosexuals seem particularly sensitive about the issue of discrimination on the basis of “sexual orientation,” which is almost always a code word for sexual conduct, a horse of a different color. In May of this year Martina Navratilova, an openly homosexual tennis player, bemoaned the fact that a bare majority of states still allow employers to fire their employees for “being gay.”
“We still don’t have equal rights…” said Navratilova. “[I]n 29 states in this country you can still get fired for not just being gay but if your employer thinks you are gay.”
Wow! Twenty-nine states don’t force employers to employ people they don’t want to employ? The horror!
That makes homosexuals sound like some kind of oppressed class, which they are not. Someone should tell Ms. Navratilova that you can be fired in all fifty states for being a Republican; or Democrat for that matter. You can be fired for being too sexy, as a Debrahlee Lorenzana was from her job at a New York bank. You can be fired for the color of your shoes, or for being a Yankee fan. In every state but Michigan you can be fired for being too fat. The Elliot-Larsen Civil Rights Act bans employment discrimination on the basis of height or weight in the Great Lakes State. You can be fired for smoking cigarettes, even while off the clock. Clearly fat people, smokers, Yankee fans, gorgeous people, Democrats and Republicans all have less protection from employment discrimination than homosexuals. Someone should tell these crybabies to quit whining.
Private sector nondiscrimination laws have no place in a free society. By their very nature they compel people to engage in economic transactions against their will. Be on guard against ENDA and any other law that forces one person to do business with another. Eternal vigilance is the price of liberty.