Normalizing Bigotry in Arizona
Arizona is debating a bill that will enshrine discrimination against gays as a protected right. On the one hand, the anti-gay groups pushing this have a uncomfortable but accurate truth on their side: that to many people in America, expressing their dislike of gays is part of their free exercise of religion. Free exercise of religion is plainly protected by the Constitution. On the other hand, “protecting free speech and association” is a long line of argument that has been used to justify the most odious forms of discrimination throughout American history. The idea that this is a principled stand on religious freedom, and anti-discrimination laws an assault on same, doesn’t really pass the smell test.
Noah Smith wrote a great piece about how the rhetoric of libertarianism is all too often meant to aid the “freedom of local bullies“.
An ideal libertarian society would leave the vast majority of people feeling profoundly constrained in many ways. This is because the freedom of the individual can be curtailed not only by the government, but by a large variety of intermediate powers like work bosses, neighborhood associations, self-organized ethnic movements, organized religions, tough violent men, or social conventions. In a society such as ours, where the government maintains a nominal monopoly on the use of physical violence, there is plenty of room for people to be oppressed by such intermediate powers, whom I call “local bullies.”
This can be a little unfair to libertarianism – because in the absence of strong government legislation, the dominant social order is dictated by social norms. In a society without militant organized religion, a strong deference towards religious freedom wouldn’t result in religious leaders trampling individual freedom. Formal religious liberty would no doubt take different realized forms in Sweden and Saudi Arabia. The actual experience of negative freedom is strongly shaped by the dominant social norms that actually end up running the show.
That is how the Arizona law is best seen, I think: an attempt to symbolically endorse the norm of anti-gay legislation. Its legal salience is (most likely) fairly low, and I have doubts about whether it would hold up in court. But the status quo today already has some legal protection for anti-gay discrimination, and the idea that anti-gay bigots are persecuted by the legal system today is a bit ludicrous. The point is to more fully legitimize the norm of discrimination. While the state could not get away with instituting a system of legal discrimination against gays, it makes it clear that the state endorses anti-gay discrimination.
Ultimately, this Arizona law is a bad law but a good sign. It is a desperate rear-guard action attempting to safeguard the rights of local bullies after more formal discrimination laws have begun to fall. It may or may not be signed by the governor, and may or may not withstand court challenges, but its practical impact is likely to be small. The nice thing about social norms determining local lives is that when norms change for the better, so do lives. I suspect that by the time this law takes effect, the norms of equality and respect will have advanced that much more.