In case you’re unfamiliar with Alicia Dearn, she’s a lawyer and establishment libertarian who worked in the Gary Johnson 2012 campaign, then went on to lobby for his VP slot in 2016 (only to get passed over for the worst possible choice). Last week, she made the following pronouncement:
Libertarians who think that the anti-discrimination laws are against libertarian ethics are wrong and need to re-examine their thinking.
I’m one of those horrible wrong libertarians, as I believe I’ve made clear once or twice recently, so I consider myself fortunate that I have Alicia Dearn to hand to guide me through reëxamining my thinking. Let’s see what she has for us!
The core of libertarianism is that you are free to do as you please… so long as you don’t hurt others. So let’s start from this definitional premise.
If "inauspicious beginning" were an Olympic sport, Alicia Dearn would be a gold medalist. The actual core of libertarianism, as any fule kno, is that you are free to do as you please so long as you don’t violate the rights of others. Lots of people love to try to rejigger this into something smooshier and fuzzier like "don’t hurt others" because, when you get right down to it, the non-aggression principle doesn’t allow much room for controlling the behavior of other people. Replacing rights violations with something utterly and wildly subjective such as "harm" — which, like beauty, is in the eye of the beholder — provides a wonderful pretext for fake-o "libertarians" to be just as totalitarian as they please.
But we’re getting ahead of the story here. I need to go back to pretending Dearn’s goofy polemic is serious thought.
We know empirically that discrimination based on immutable characteristics (race, gender, ethnicity, religion, age, disability) causes harm to the victim. The harm is emotional and physical. We evolved to be social animals and social rejection is a type of assault on the victim.
… But let me tell you, she’s not making it easy. I do admire that Dearn jumps immediately (I elided nothing) from her hamfisted gloss on the non-aggression principle to a prime demonstration of the exact problem with loose language like "causing harm." We’ll overlook her assertion that anything can be known "empirically" about a nonspecific subject — I’m assuming she hasn’t tested all possible discrimination on all potential "victims" — and just focus on the equally-baseless assertion that any discrimination "based on immutable characteristics" causes physical harm. Apparently, Alicia Dearn has found ironclad proof that, by never seriously considering marrying any seventy-year-old paraplegic Hindu men, I caused all of them actual physical harm. Their pinkie fingers just suddenly, spontaneously shattered because I discriminated against them. Now, I realize that I’m not really arguing here so much as just mocking, but I defy you to tell me you can’t see the problem with Dearn’s bizarre claim.
Not to mention the subsequent even-crazier claim that "social rejection is a type of assault." I’m assuming that means that if I hit on a chick at the bar and she turns me down, I can force myself on her anyway and just claim it was justified self-defense, right?
The harm cannot be mitigated by the victim because the characteristic is intrinsic, so you are fundamentally dehumanizing them when you discriminate in this manner.
Fortunately, Alicia Dearn is around to re-humanize that victim by pluralizing him.
The emotional harm manifests in real ways, including physical symptoms. Discrimination is not victimless. This is a key fact that libertarians who are against the civil rights acts fail to perceive.
I certainly don’t profess to speak for all "libertarians who are against the civil rights acts," which acts are (just by the way) utter abominations, but I certainly do not fail to perceive that key fact. The catch is that it doesn’t matter. Consider: if I go out for lunch, I don’t go to every restaurant in town. I pick just one. The rest are discriminated against, and this isn’t victimless: they lose the opportunity to make a sale, which is just possibly that "opportunity to wealth" jazz I’ve heard so much about lately. If a store only has one giant USA #1 foam finger (made in China) and I get there before you and buy it, that’s not victimless: you will have to go to the pep rally foam finger-less. Is this not clear enough yet? Maybe we’re both in a Tiddlywinks tournament. Well, one of us is going to win, and the other will be the victim of that winning.
Libertarianism is not some sort of bizarre program focused on eliminating all "victims" just in general. It is a very narrow program focused on eliminating aggression.
Libertarianism understands that you can’t commit torts. No battery. No false imprisonment. No trespass. And no infliction of emotional distress.
One of these things is not like the others! Libertarianism qua libertarianism says one and only one thing: no violation of anyone else’s rights. Battery, false imprisonment, and trespass all violate one’s rights. Does "infliction of emotional distress?" Does there exist some type of right never to be emotionally distressed? As Rothbard cogently explained many years ago, all rights are property rights. Battery, false imprisonment, and trespass are illibertarian because my person is my property and my land is my property, and you may thus not make any use of them whatsoever without my permission. Are there property rights in emotions? Are they scarce? Can they be produced, consumed, bought, sold, and traded? Is it possible to fence them off, to develop them, or to squander them? Clearly not. Emotions are not themselves an independent piece of property; they are an attribute of the body (or, if you prefer, the self). It is also obvious that all emotions, for good or for ill, are internally generated. One could argue that if I had an "emotion ray" that projected emotions onto you, using it would violate your rights, but to claim that it violates your rights that you reacted in a certain way to something I said or did is of a piece with claiming a rights violation because the lighting in my living room made your dress look less pink than it looked in your closet.
For example, a business owner may legitimately choose only to serve people who can pay on demand. That’s a victimless and reasonable discrimination.
That’s hardly victimless! Indeed, the victims of this foul form of discrimination are so obvious I can barely understand how Dearn overlooked them: people who cannot pay on demand. Of course, I imagine we don’t need to care about those people, since it’s "reasonable" to discriminate against them. I imagine Dearn probably has empirical proof of how that definitely doesn’t cause physical harm.
But categorically refusing to serve a black man or a Jew or a gay man is NOT harmless. Therefore, it violates the NAP and the core ethic of libertarian philosophy.
This is the punch line right here. This whole article, I bet you were assuming that Dearn is just one of those liberty-come-lately types who haven’t ever heard of the non-aggression principle. But no: she name-drops it right here! She apparently is aware of the NAP, but just managed to overlook that she didn’t type "NHP," since she blithely carries on pretending that "aggression" and her definition-impaired concept of "harm" are interchangeable. Causing harm does not necessarily violate the NAP! Boxers unquestionably harm one another during their matches, and yet boxing is not in any way incompatible with libertarianism.
By the way, some situations are not that cut and dry [sic]. That is why the law allows for balancing between rights. So, for example, amusement parks may refuse to allow pregnant women to ride their roller coasters. It’s a discrimination created by an immutable physical characteristic, but has a basis that is not harmful or evil at heart.
Curious definition of "immutable" we’re using if it covers a condition that happens only as a result of specific prior actions, is temporary, and can definitely (though I’m not encouraging doing so, mind you) be changed. Never mind that; now apparently our standard for permissible discrimination is that it not be "evil at heart." Who on Earth is Alicia Dearn to profess to know the hearts of these poor bakers? What an utterly arrogant thing to say.
So when rights compete, you must balance. Not everything has an easy answer.
Hogwash. If rights compete, it’s because your rights theory is incorrect, and you need to fix it. That is what it means to have rights. "Rights" are exclusive title to a given piece of property and cannot, quite by definition, compete.
The law accounts for freedom of association and religion already. If your religion thinks that homosexual relationships are immoral, you still don’t have to participate. Have an employee bake the cake so you don’t have to, if you’re that sensitive.
Now we’re arrogant and clueless. You don’t have to do it yourself! Just spend your money to have one of your employees use your resources to do it instead of something else you’d rather have done! Freedom!
But I’d like to also point out that baking someone a cake is not the same as condoning or participating in gay sex. You aren’t going to Hell for baking a cake for someone who may be a sinner.
And now the level of arrogance steps up enough that Alicia Dearn is presuming to speak on behalf of God. I’m afraid that I’ve lost track of the precise chapter and verse in which the Bible states that God delegates the right to determine who is saved and who is damned to snotty trial lawyers.
And to Gary Johnson’s point, that apparently people keep missing, religion is sometimes used as a smoke screen for harmful bigotry. It wasn’t that long ago that the KKK cited the Bible as proof that it was OK to be violent towards [sic] black people. A real Christian would bake cakes for lepers and prostitutes. Don’t be a jerk.
And to my point, that apparently people keep missing, beltway libertarianism is sometimes used as a smoke screen for harmful totalitarian impulses. It wasn’t that long ago that self-proclaimed libertarians cited the non-aggression principle as proof that it was OK to be violent toward bakers. A real libertarian would leave other people alone to bake whatever cakes they please. Don’t be a jerk.