EQUAL RIGHTS, NOT GAY RIGHTS by Nigel Ashford
 
I am Senior Lecturer (Professor) of Political Science at Staffordshire 
University in England. I am on the Academic Advisory Council of the 
Libertarian Alliance (UK). It is based on my speech to a debate to the 
Oxford University Civil Liberties Society against  anti-discrimination 
laws for gays. 
 
This article (Political Note 109) is now maintained by the
Libertarian Alliance of the United Kingdom at this site.
 
EQUAL RIGHTS, NOT GAY RIGHTS
 
After the semi-successful campaign to reduce the age of consent for 
homosexuals, gays are debating what should be the next campaign.  
Many are advocating that the priority should be anti-discrimination 
laws.   Such a policy ignores the essential distinction between equal 
rights with straights and special rights for gays.  This article 
advocates the former, and opposes the latter.   The term 'Gay Rights' 
blurs this significant distinction. To the extent that gay rights simply 
means that gays should be afforded the same rights as straights, it should 
be strongly supported, but when it  implies rights that  belong only to 
gays but  not to all straights, it should be vigorously opposed. 'Equal  
Rights, not Special Rights' has unfortunately become a slogan of  the  
Christian Right. However they do not mean it, as is demonstrated by their 
opposition to an equal age of consent.  Gays , and all those committed to 
equality under the law, must restate and recapture this principled 
position. 
 
Equal rights would mean:
- an equal age of consent for gays and straights 
- the right of gays to serve in the military
- the legal recognition of same sex unions, preferably marriage
- the right of adoption by gay families
- the right of inheritance for a gay partner if the other dies intestate, 
without a will
 
A philosophy of equal rights would oppose: 
 
-hate crime legislation, which creates an additional penalty if the 
crime was an expression of hatred against gays
- legal  prohibitions on anti-gay speech, unless it is threatening, in 
which case it is covered by the existing laws that apply to all
-laws making discrimination against gays illegal for private persons in 
employment, housing and so-called public places
 
The three principles that underpin this approach will be presented, 
followed by the case against anti-discrimination laws.   It should be 
emphasised that state discrimination against gays should be ended 
and gays should be entitled to the same rights in law as straights, the 
principle of Civil Equality, while private discrimination should be 
condemned but not outlawed.
 
 
 
 
THREE PRINCIPLES
 
1. 'Gay Rights' are neither Human Rights nor Civil Rights. 
 
A Right is a moral entitlement.  A Human Right means that it  belongs 
to all human beings, regardless of nationality, gender, race, religion, 
or sexual orientation. Human Rights must meet three criteria:  1) they 
must be universal, applying to every human being , wherever and whenever 
they lived  2) they are absolute, except when they come into conflict with 
each other  3) they are inalienable, and so cannot be surrendered, eg 
no-one can sell themselves into slavery.  These human rights were 
expressed by John Locke as 'life, liberty and property', in the French 
Declaration on the Rights of Man as 'liberty, property and security', and 
in the American Declaration of  Independence as 'life, liberty and the 
pursuit of happiness'.   Civil Rights, or Civil Liberties, seek to embody 
these human rights into law, turning them into positive rights that can be 
claimed. Every person has an equal right to be free from interference by 
the state and others, in aspects such as freedom of speech, freedom of 
contract and freedom of association.
 
If Gay Rights are rights that only belong to gay people by virtue of 
being gay, ie they belong only to members of a particular group rather 
than to all individual human beings,  they cannot be human rights 
because they do not meet the  necessary criteria, notably the 
universality principle.  Thomas Sowell has discussed how the black 
civil rights movement shifted from demanding equal rights to special 
rights  in his book Civil Rights.
 
 
2.  It is not the role of the law to impose morality.  
 
This has been one of the biggest debates in political philosophy, 
between liberals and moral majoritarians.  John Stuart Mill in On 
Liberty articulated the principle that people should be allowed to do 
as they pleased unless they do harm to others: the harm principle. 
This principle has been used extensively to promote equal rights for 
gays, eg in the Wolfenden Report.  As the time Mill was strongly 
opposed by James Fitzjames Stephens.   A more recent debate was 
between Lord Patrick Devlin, who thought that the law should express 
condemnation of that deplored by the majority of people, against 
Oxford philosopher  H.L. A. Hart, who took a more liberal position.  In 
such debates, gays have sided with the liberal view that it is not the 
role of the state to impose a particular conception of the good, even one 
endorsed by the majority. The law exists to enable people to go about 
their business, as long as they do not interfere  with the rights of 
others.  Ronald Dworkin expressed this principle of liberal neutrality as: 
No person is entitled to elevate his /her beliefs about how others should 
act above those of anyone else.   It is very important to emphasise that 
for the state to allow  an action is not to favour it.
 
3. Maximise the private.
 
The distinction between private and state (usually expressed as 
'public') is extremely important in a free society.  Unfortunately the 
definition of the private has become narrowed to include only the 
person's home, and sometimes not even that.   The distinction 
between private and public should be ownership, not who goes there.  
'Public' should mean government owned, not open to the public, as in a 
bar or club.   Private property means that government has no right to 
interfere with that property unless someone's  rights are being 
denied.  A wide definition of private and a narrow definition of public 
(state) is the best protection for gays.   The alternative is that 
government can legislate and  interfere in areas open to the public eg at 
the Stonewall Inn, or sexual activity in cinema clubs, or sado-masochistic 
sex on private property (Operation Spanner).  Those who control the power 
of the state will use it for their own purposes and preferences.
 
ANTI-DISCRIMINATION LAWS
 
Anti-discrimination laws would outlaw discrimination on grounds of 
sexual orientation in employment, housing and 'public' areas.
This was proposed in the US federal Employment Non-Discrimination 
Act (ENDA), and exists in many US states and local jurisdictions.  The 
Labour party conference in 1983 endorsed the idea, and many gay 
activists want this proposal to be at the forefront of gay campaigns.
 
Such laws should be opposed on the grounds that they would  
threaten civil liberties, society in general, and gays.
 
I. The Threat to Civil Liberties
 
Firstly, they attack freedom of association, the freedom to associate, 
and not to associate, with whomever we choose for whatever reason, 
good, bad or none.  These reasons can be criticised but if some 
motives are made illegal, then one is no longer free.  
Anti-discrimination laws would force a Catholic to rent his property to  
someone whose activities he views as abhorrent. A fundamentalist school 
would have to hire homosexuals against their deepest beliefs (the cause 
that brought Anita Bryant into anti-gay crusades) .  A gay bar owner could 
not employ only gay barmen and women.  Gay clubs could not exclude 
straights.  Do not believe that these laws would only apply against 
straights. In  Provincetown, Massachussetts, a male gay bar was refused a 
renewal of its alcohol licence because it  excluded women and straight 
men, as was a lesbian bar in New York for its policy.  In San Francisco a 
gay landlord was prosecuted for prefering gay men to women as tenants.  
The principle of freedom of association does not defend anti-gay 
discrimination,  but recognises that bigots have rights too. 
 
Secondly, they undermine freedom of expression.  Anti-gay 
discrimination will occur, but employers and workers will  not be allowed 
to express their true motives and will find other excuses to act.  
Employers would become legally responsible for the  speech of their own 
employees, as in the case of the Irish worker compensated for the 
anti-Irish jibes of his fellow workers.  Of course employers should seek 
to create an environment  in  which all workers feel able to carry out 
their works in a relaxed and comfortable environment, but it should not be 
the job of the employer to seek to regulate the speech of his or her 
workers unless it affects the business. 
 
Thirdly, they are an attack on private property rights.  One should set 
own one's rules on one's own property.    In the famous US Supreme Court 
case, Hardwick versus Bowers,  Hardwick was found guilty of anti-sodomy 
laws in his own home.  Local anti-gays tried to prevent a lesbian retreat 
in Mississippi.  Freedom of association and respect for privacy can only 
be protected by property rights, which allow individuals to carry out acts 
between consenting adults free from invasion. The recognition of private 
property rights is one of the great safeguards for gays, which they 
threaten at their peril.
 
Fourthly, they deny the free exercise of religion.  A church which 
believes that homosexuality is a sin should not be forced to employ 
someone who does not accept a basic principle of the church.  Church 
members and others of course could (and should) advocate that the 
church should change its position on homosexuality.  However the 
church should be allowed to  exercise its religious principles,  as long 
as it does not seek to translate them into law simply because they are its 
principles.   Laws would bring the state into the doctrinal affairs of the 
different churches and cause intense resentment amongst them. 
 
II. The Threat to Society
 
Firstly, it will damage the economy.  Unemployment is the biggest 
economic problem facing not only Britain but every western society.  
Most economists agree that a major factor in unemployment is what 
they call rigidities in the labour market.  These are things which 
discourage employers offering work and workers accepting it .  
Anything which 
raises the cost of employment reduces the number  of employment 
opportunities.  One example is the minimum wage which will 
discourage employers from taking on inexperienced workers whose 
job productivity is difficult to predict.  Another discouragement is 
employment legislation which makes it more difficult to sack a 
worker.  If it is difficult to remove workers, then employers will be 
more cautious in taking on new workers.   The fear of litigation if a 
gay claims to have been sacked on grounds of sexuality will 
discourage employers from offering employment.  
 
This is not to advocate or defend discrimination.  Discrimination has a 
price in the labour market because the employer is not employing the best, 
and will lose out to his competitors.  This argument is  developed in 
detail by the Chicago economist Gary Becker in The Economics of 
Discrimination.
 
Secondly, it undermines the political system.  Such laws will 
contribute to  what Arthur Schlesinger describes as the Balkanisation 
of politics.  Government becomes a battleground between special 
interests seeking to use the power of the state to further their own 
interests.  In the process, the public interest  is ignored.   Every group 
seeks to get its nose in the public trough, regardless of the cost to the 
rest of society. Special interest legislation  divides society by 
emphasising differences in  interests rather than common interests.  This 
argument is developed more fully by public choice writers such as the 
Nobel Prize winner James Buchanan, and Mancur Olson in The Rise and 
Decline of Nations.
 
Thirdly, they will make the UK a more litigitious society.  There is now 
considerable concern in the US  with the massive costs in litigation, 
which raises the cost of products,services and employment considerably.  
See Walter Olson, The Litigation Explosion.  There is now a strong 
movement for tort reform to reduce the problem.  Anti-discrimination laws 
create yet another basis for additional litigation.  Already considerable 
sums have ben awarded in the UK to those who claim some sort of 
discrimination, but little attention is given to who pays and the  broader 
costs to society.  Fourthly,  such laws will lead inevitably to quotas, 
government mandated preferences for government favoured groups.  Despite 
claims to the contrary, and sometimes explicit references in legislation 
banning quotas, they are an almost inevitable consequence of such 
legislation . Why?  These laws penalise motive, but motives are  difficult 
to establish. If the motive is illegal , discriminators will not admit  
it. Those seeking to implement the laws move from a concern with 
'disparate treatment ', ie with intent, to 'disparate impact' ie with 
effects.  The question then becomes how  many blacks or women or gays are 
employed.
 
To avoid costly litigation, compensation, and bad publicity, employers 
impose quotas.   Even without legislation, the Bar Council is 
demanding 5% ethnic representation in barristers chambers.  This 
destroys equal treatment because prospective employees are not 
treated equally on the grounds of merit but because of certain 
characteristics.   It is this which has created resentment and backlash 
against affirmative action.  It may not be the intent of the law to create 
quotas but it is an unintended consequence. 
 
 III. The Threat to Gays
 
Firstly, they will perversely reduce employment and housing 
prospects for gays.  If you are an employer making an appointment,  
you are aware that you may have to sack the worker in the future , 
because he or she is unsatisfactory, or because business requires it.   
The employer may be reluctant to employ  someone gay, or who appears to be 
gay, because the employer faces the prospect that the employee would  
claim that he  or she was dismissed because of his/her  sexuality . Better 
to avoid the risk and not employ the person in the first place.  
Similarly, one of the biggest fears of any one renting out property is how 
difficult it may be to remove the tenants  if they fail to pay the rent or 
damage the property.  Anti-discrimination laws adds another potential 
obstacle to removing them.  This creates an incentive to the owner to 
favour renting to a straight rather than a gay, providing he/she can find 
another  reason to favour the straight.  It would be yet another example 
of the perverse effects of laws leading to the opposite to that which was 
intended.    Secondly, they will contribute to a backlash against gays.  
In 1992 there were two referendums on gays in the states of  Oregon and 
Colorado.  The former was defeated , while the latter passed.  The 
difference was that the Oregon proposition sought to condemn homosexuality 
in the state constitution,   while the Colorado one sought to ban local 
authorities from passing anti-discrimination laws for gays.  The moral 
majoritarian slogan against special rights for gays resonated with 
ordinary straights because there was an element of truth in it, whatever 
the motivation of its promoters.   Appeals to equal rights will appeal 
much more to straights that appeals to special rights, and anti-gays will 
be quick to blur the distinction.
 
Thirdly, they reduce the self-esteem of gays by creating a  victim 
mentality: that gays have no power but are dependent on the state to 
protect them.  There is now a debate between  
victim and power feminism, between those who portray women as 
victims who need the protection against men, and these who 
emphasise the power and potential power of women.  The power 
approach would be best for gays.  The psychology of the victim  leads 
to   resentment not betterment.  As Andrew Sullivan of the New 
Republic noted, "By legislating homosexuals as victims, it sets up a 
psychological dynamic that too often only perpetuates cycles of 
inadequacy and self-doubt".  Gays are then led to assume that they 
cannot succeed without special protection, and straights will assume 
gays are successful because of preference not merit.  The difference 
between power and victim approaches is reflected in the debate on 
the existence of the  Pink Pound.  On the one side are those who 
emphasise the existence of substantial economic resources in the 
hands of gays, and view gays as success stories. On the other, the 
victim gays seek to deny the power of the pink pound and prefer to 
present gays as  poor and down trodden.
 
Fourthly, anti-discrimination laws rely on the power of government, 
yet government  has been the chief oppressor of gays.  Gays will 
always be a permanent minority. It is very dangerous to rely on laws 
passed by the majority to protect them.  These laws would legitimise 
interference in private matters.  These are more likely to be used 
against gays in the longer term .  The state should be seen as a threat 
to gays, not an ally.
 
CONCLUSION 
 
Discrimination against people simply because of their sexual 
orientation exists and is wrong, but it is not the role of the law to 
correct every wrong.  Law is not, and has not been , the  solution to 
sex and racial discrimination and will not be for sexual orientation.
 
There is no easy or permanent solution to anti-gay discrimination.  
Gays can however seek :
- equality before law
- maximum freedom of association 
- social disapproval of discrimination.
 
Gays must have equal rights to straights.   They are entitled to 
nothing less- but also nothing more.  
 
Dr. Nigel Ashford is Principal Lecturer in Politics at the University of  
Staffordshire.  
 
SUGGESTED READING 
Bruce Bawer, A Place at the Table: The  Gay Individual in American 
Society,  Simon & Schuster, 1994. 
 
Gary Becker, The  Economics of Discrimination, University of Chicago 
Press, 1974.
 
Richard Epstein, Forbidden Grounds: The Case Against Employment 
Discrimination Laws,  Harvard University Press, 1992.
 
Sean Gabb, What To Do About Aids, Libertarian Alliance  Pamphlet 
No.12, 1989.
 
Brian Mickelthwait, Gay and Lesbian Rights: Property is Better than 
Politics, Libertarian Alliance, Political Notes No. 69, 1992.   
 
Mancur Olson, The Rise and Decline of  Nations, Yale University Press, 
1982.
 
Walter Olson, The Litigation Explosion, Plume, 1992.
 
Richard Posner, Sex and Reason, Harvard University Press, 1992,
chapter 11.
 
Jonathan Rauch, Kindly Inquisitors, Chicago University Press, 1993, 
chapters 5,6.
 
Thomas Sowell, Civil Rights: Rhetoric or Reality, Morrow, 1984 .
 
Andrew Sullivan, 'The politics of homosexuality', New Republic   
May 10 1993.
 
'Gay Rights or Human Rights?', Economist   February 6 1993, pp.15-16.
 
(c) Copyright 1995  by Nigel Ashford and by the Libertarian Alliance of the United Kingdom.
First published by the Libertarian Alliance of the United Kingdom in 1995.  Reprinted with premission. 
 
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