Note to “Social Conservatives” On Property Rights

Earlier today, I posted a short essay on U.S. Supreme Court Justice Neil Gorsuch’s complete sellout of the principles of constitutional jurisprudence, in the form of his majority opinion on radically changing the meaning of the 1964 Civil Rights Act’s wording on sex discrimination in the workplace to “protect” voluntary sexual behavior, rather than merely biological sex, i.e., inborn reproductive traits. The crux of my argument was that by using his “textualism” to rationalize a complete reworking of the law’s definition of “sex,” Gorsuch has opened the floodgates for courts across America to force employers to hire or retain “qualified” employees who engage in virtually any sort of deviant sexual practices, no matter how offensive to the sensibilities of said employers — which in effect means an even more fundamental violation of the concept of private property rights than was already entailed by the original 1964 law.

Specifically, I summarized the Gorsuch disaster this way:

It will henceforth be explicitly against the law in America for any employer to object to working alongside, let alone supporting with his own money, someone who engages in bestiality, sado-masochism, or other deviant practices that the employer finds grotesque or immoral. From now on, officially, an employer’s conscience and personal morality are completely divorced from his money (i.e., his property), which is to say that he must give his money to a person whom he regards as morally disagreeable in a fundamental regard, if that person happens to be “qualified for the job,” according to some abstract societal standard of “qualified.”

Lest anyone shout “Rah-Rah!” to that sentiment on the assumption that I have offered an argument in defense of decency and traditional morality, and against deviant sexual practices, I feel obliged to say, “Not so fast!”

My point, and the core of what my argument proves, is not that moral people ought to be allowed to fire, or not to hire, immoral people. Rather, what I have proved is that it is fundamentally destructive of the property rights at the heart of a liberal republic to force anyone to hire (or to prevent him from firing) a person whose behavior he finds personally offensive, regardless of whether you or I happen to agree with that employer’s judgment of offensiveness. For what is wrong with the premise of such “anti-discrimination laws” is that they remove a man’s property from his personal control, supposedly in the name of justice. This wrong applies whether the man losing control of his property is “discriminating” righteously or unrighteously.

In fact, the main argument against laws like the Civil Rights Act is precisely that the state should never have the power to deny even a morally questionable man the power to exercise his personal conscience within the sphere of his own legitimate freedoms. For example, no reasonable person should think it good that a restaurant owner prefer not to serve or hire people of certain races. But this does not change the fact that the owner, insofar as the restaurant and its profits are his property, has every right to make even such a stupid decision. It is neither the government’s duty, nor within the government’s legitimate powers, to force anyone to act according to its, the government’s, conscience, where private property or freedom of association are involved.

What is primarily appalling in the decision Gorsuch led is not that it will lead to the normalization of grotesquely deviant behavior down the road — although it certainly will do that — but that it vastly widens the scope of government’s power to restrict property rights for essentially any reason any particular instantiation of government happens to favor at any given time. In other words, it makes the anti-sex-discrimination portion of the Civil Rights Act into an even more immediate and unlimited weapon of demagoguery and populist attitudinizing than it already was. 

In practice, this decision will lead to the legal imposition of sexual deviancy into everyone’s private sphere, in direct violation of the right to property. But it would also logically entail that sexual deviants may be forced to hire moralizing Christian heterosexuals whose views those deviants find offensive. That too is a violation of private property rights.


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