Let’s say a liberal and a libertarian are having drinks at a bar, and discussing public policy. The liberal asks the libertarian what he thinks of anti-discrimination laws that apply to private parties. The libertarian says that he wants to put the issue of race to one side, because of its special history in the U.S., but is happy to discuss his views on antidiscrimination laws that apply to groups aside from racial minorities. [Update: Some liberal commenters object to this exclusion. But given that the liberal position on affirmative action preferences for racial minorities is typically based on the same premise, that the history of race in the U.S. is a special case that could warrant a deviation from otherwise sound principles, I doubt they really want to emphasize this objection.] The liberal agrees.
The libertarian then says that he opposes antidiscrimination laws that apply to private parties. First off, he explains, he has a generally extremely strong presumption against the government exercising authority over private activities, for both philosophical and practical reasons. Second, he adds, he believes that the government does not have a sufficiently compelling interest in banning discrimination against various groups to overcome that presumption. Third, even if he was tempted to think that if the government had such an interest with regard to some of the groups at issue, the way government works means that more and more groups will demand protection, and the laws will expand to more and more contexts where discrimination might take place, until the net social costs of enforcing discrimination laws will dwarf their benefits. Finally, he adds, he thinks that moral suasion, education, boycotts, and the like, are the best way to deal with most types of discrimination.
The liberal, not used to hearing the libertarian position on such issues, is shocked. “You are immoral!” he yells, well over the din at the bar. “Don’t you know that discrimination is WRONG! It’s EVIL. No decent person, regardless of their background assumptions about government, could possibly question the propriety of most anti-discrimination laws that apply to private parties! What about the Jews who were denied access to universities, certain neighborhoods, entire industry groups! What about women like Sandra Day O’Connor who couldn’t get a job out of law school despite graduating third in her class at Stanford?”
The libertarian responds, “yes, those were all bad things, and I’m not enough of a history buff to know exactly what extent they were eliminated by law and to what extent changing social mores led to positive social change outside law. But surely we can agree that in the absence of these laws today, such blatant discrimination is not likely to recur on anything resembling a widespread basis.”
The liberal, astonished by the libertarian’s blockheadedness, retorts, “but don’t you understand? Discrimination is just wrong! Society simply can’t permit discrimination to continue, and even today, with the civil rights laws we have, discrimination is not as rare as you seem to think!”
The libertarian thinks for a moment, takes a few sips of his beer, and asks, “then why not have the death penalty for discrimination?”
“Huh?,” says the liberal.
“We both agree that private discrimination is bad,” the libertarian continues,” and “my position is that I think the costs and dangers of making it illegal are not worth the benefits, especially given my background presumptions. I can see your argument that I am wrong about either my presumptions or how I weigh the costs and benefits of anti-discrimination laws, but I’m surprised to see that you are also offended that I would even apply a cost-benefit analysis to discrimination laws, because, you suggest, discrimination is so inherently evil, and it must be wiped out. Yet, under the current system, the worst thing that happens to a perpetrator of discrimination is that he suffers a monetary loss, and that’s only if he’s caught. So shouldn’t we, by your logic, simply execute anyone who’s caught discriminating, to provide much greater deterrence?”
“Of course not,” says the liberal. “I have an extremely strong presumption against the government exercising power over life and death. While I find discrimination abhorrent, I don’t think discrimination is nearly serious enough to overcome that presumption. Plus, even if I could be persuaded otherwise, at least with regard to some particularly egregious types of discrimination, if we allow the government to execute people for discriminating, demand will grow for the death penalty in all sorts of other contexts, and the social costs of having the death penalty for discrimination will outweigh the social benefits. I know that keeping the system of civil penalties instead of draconian criminal punishments will allow some discrimination to continue, but at some point, we just have to rely on moral suasion, education, boycotts, and the like.”
And with that, the libertarian and the liberal agreed to disagree about antidiscrimination laws, and became best friends and drinking buddies.