Tuesday, April 7, 2015

The new definition of nondiscrimination : a grave threat to liberty

Recently, the commonwealth of Kentucky is making headlines concerning the upcoming battle over same-sex marriage at the United states Supreme Court. They are making the argument that bans on same-sex marriage are not discriminatory because they “stop heterosexuals from marrying others of the same-sex.1

In the current of rabid obsession with things homosexual, this argument is met with scorn. This argument is. However, perfectly valid in light of historic conceptions of discrimination and anti-discrimination. Since the 1960’s, we have had a diversity of anti-discrimination laws that outlaw discrimination based on membership in one or more of various protected classes.

If inappropriate discrimination is based on selection based on “membership in one or more protected classes, “ then neither same-sex marriage nor any of its related issues involve such discrimination. Laws banning same-sex marriage apply equally to all groups in society. Discrimination along related issues is also appropriate in terms of the historical understandings of acceptable discrimination. Not a single one of the recent cases involving whether bakers, florists, and photographers can legally refuse to service same-sex ceremonies involves  denying service to individuals or groups based on membership in a protected class. In all of these cases, the vendors serviced members of the LGBQT community. The discrimination was based on the content of the service: these vendors refuse to perform only the specific services that violated their conscience. They would have denied performing these services to anyone, regardless of what class of which they were a member.

The rejoinder that is given is that these regulations have disproportionate impact on members on the LGBTQ communities. Bans on same-sex marriage are of no consequence to heterosexuals, who presumably would have little use for such legal constructs. This type of arguments, however, marks of major redefinition  of what constitute non-discrimination.

To understand the change that is happening here, one must understand the difference between negative rights and positive rights2.

Negative rights simply mark what cannot legally be done. They restrain the government and others from doing thing that would hinder the pursuit of their own happiness. It was each person’s responsibility own their own pursuit of happiness, and own their success or failure. No one else is obligated to assist in that pursuit.

The concept of positive rights, however, asserts that others have a positive legal obligation to assist in one’s search of happiness. The conception of positive rights further implies that the state has a responsibility and right to compel such service.

The difference between negative and positive rights on LBGTQ issues can be described as this. Negative rights for  LBGTQ issues implies that they should not be subject to prosecution for pursuing their peculiar types of sexual relationships and that they should not be denied access to services because they are members of the class of people that do these things. Negative rights do not impose an obligation on anyone else to help them actualize their happiness. They must procure these as free economic agents in the marketplace. In the case of same-sex ceremonies there is both a demand for such services and an abundant supply of vendors willing to perform these services. In a negative rights conception of liberty, vendors are not obligated to provide any particular service: only provide equal access to all people to the services of their choosing. In a positive rights conception, however, others are obligated to provide assistance in one’s pursuit of happiness. What this means for photographers, bakers, and other providers of services that might be demanded for same-sex ceremonies; is that they can be compelled in term of the types of services he/she must offer.

The dangers of positive rights3
The are three dangers to positive rights. They result in forced servitude. They result in the necessity of a government bureaucracy whose authority trumps all liberties. They contain no limiting principle to the exercise of arbitrary state power. They require that tribunals pick winners and losers in cultural conflicts. The enforcement of nondiscrimination as a positive rights allows dominant groups to discriminate against, marginalize, and even genocide other groups with less social power. Finally, the enforcement of the schema of positive rights results in the state being for all practical intents and purposes god on earth.

They result in forced servitude because people must be made to do things they would not do otherwise. Under negative rights, people are free to make their own choices as to what type of business they do; Constraints may exist to ensure equal opportunity and public safety, but no one is compelled to provide types of services they would not otherwise do. Under positive rights they can be forced to provide types of services that would otherwise not be offered. This mean that bakers can be forced to bake cakes for same-sex ceremonies. This means that if all bakers stopped doing wedding cakes, that the state can draft them into providing wedding cakes for same-sex ceremonies. This means that if everyone stopped baking, then the state could draft into baking those who would otherwise not be bakers. The result is forced servitude which is otherwise known as slavery. This would have implication that go way way beyond baking cakes. Thus could lead to a society where the state centrally plans all economic activity, even to the point of assigning people their occupations.

They result in the necessity of a government bureaucracy whose authority trumps all liberties due  the complexity of positive rights claims. If, access to healthcare is a positive right, then a bureaucracy must exist to define standards for its delivery and which healthcare issues will have priority. Such a bureaucracy would necessarily have greater authority than any rights claim it adjudicated in order to define and adjudicate them. If such an authority decides that abortion is a right, then it will compel those who believe abortion is murder to assist in performing abortions. If the healthcare bureaucracy believes that it is in the interests of public health to resort to euthanasia to weed out the unfit, then genocide is marketed as a human right.

Because positive rights involve coercing others in assisting in one’s self-actualization (a.k.a the pursuit of happiness), there is no limiting principle to what government may demand. Any issue that relates to one’s self-actualization may be a legitimate target of government regulation. The new definition of enforcing non-discrimination means the end of limited government. Since beliefs, speech, and religion all relate to one’s self-actualization and how it affects the self-actualization of others, there will emerge programs to regulate speech, beliefs, and religion. Speech codes will be enacted that dictate what type of ideas are permissible to express.  

They require that tribunals pick winners and losers in cultural conflicts because there is no coherent way for everyone to fully actualize in a pluralistic society. Different individual’s pursuit of happiness sometimes collide. In the infamous controversies involving same-sex couples wanted their wedding cakes baked by those who want to live that pleases a God who commands them to not support a homosexual lifestyle. In a system of negative rights, these collisions were minimized. People were free to do anything that was not explicitly outlawed, and laws were structured to allow personal freedom for all. Negative rights, in effect, created a personal bubble where the individual was sovereign in his personal sphere. This mitigated collisions of rights claims, proving clear directions for their resolution when they did occur. Positive rights, because they impose an additional positive legal obligation to assist in another self-actualization, allows for an individual to be forcibly dragged into the personal sphere of another. This increases the number of collisions that require state intervention, often at an extreme level. The result is that the state must pick winners and losers. In the name of nondiscrimination, the state must engage in  systematic discrimination.

In the ongoing dispute between the LGBTQ crowd and Evangelicals and Conservatives, in almost every case where there has been conflict, the LGBTQ crows has won and Christians have been told that they must surrender their liberties. When the issue of this unequal burden on religious people was brought to Penn Jillette, he snidely remarked that they “you're not being asked to engage in gay sex.4” However, the same logic that is used to force christian bakers to bake homosexually themed cakes could be extended to legally force people to engage in gay sex. If Christians have a positive legal obligation to assist in the self-actualization of a homosexual there is no limiting principle, and the state has decided to discriminate in favor of homosexuals in who wins under this new definition of nondiscrimination, then upon what what basis can the Christian say no if the homosexual path to self-actualization  includes bending said Christian over and sodomizing and otherwise sexually violating him or her.

Genesis 16 describes a homosexual crowd in  Sodom who committed trespassing on Lot’s private property and DEMANDED to engage in homosexual sex with the angels God sent. Lot tried to peacefully co-exist with their demands and meet them half-way. They replied by accusing Lot of judging them. This is telling, as Lot had every rational basis to judge them. They were trespassing on his private property. Lot had the right to demand that they back off and use his sword to defend his property rights. The men of Sodom used language eerily similar to that of the modern gay rights movement. They believed that they had a right to rape, and that any opposition to their advances was unlawful judging. The spirit of Sodom is raging today, and the logic used to compel bakers to bake homosexually themed cakes leads to justifying homosexual rape.

Due to the above reasons, enforcing a schema of positive rights effectively exalts the state  into a position of god on earth. Under this evil scheme, no case based on conscience and personal autonomy can prevail against any claim made by the state or those who have the favor of the state, no matter how intrusive against personal freedom it may be. This could lead to a world where murder, sex trafficking, armed robbery, and rape are all legal when done by the state or by individuals or groups that the state decides to protect. In this world there is no equality under law, but a strict "pecking order" created by the state's selection of who its cronies are and who will be vilified as the dirty dogs.  In this world all who appeal to a higher law will be considered enemies of the state, and those who persist in that appeal will be marked for genocide.


1 Kentucky Says Straight People Can’t Have Same-Sex Marriage Either 

2 Positive Rights vs. Negative Rights, Prof. Aeon Skoble, Learn Liberty

3 The Perils of Positive Rights
Positive Rights Conflict Most of All with Our Basic Negative Rights to Life, Liberty, and Property
April 01, 2001 by Tibor R. Machan,

4 Penn Jillette on Indiana RFRA: "You're Not Being Forced to Have Gay Sex", Reason Magazine
Nick Gillespie|Apr. 2, 2015,