Should discrimination against homosexuals be illegal?

IN COLORADO, voters amended the state constitution to keep antidiscrimination laws from covering gays. Activists in Maine want to limit civil rights statutes to the categories listed in the Maine Human Rights Act -- one of which is not sexual orientation. Cincinnati's charter was changed to block ordinances banning discrimination on the basis of homosexuality.

In each of these cases, opponents are challenging the anti-gay-rights initiative, and each case is at a different point in the legal proceedings. Colorado's amendment is before the US Supreme Court; Maine's proposal will be on the ballot next month; Cincinnati's charter change has been upheld by the US Court of Appeals. But they all raise the same interesting question:

That is not the same as asking whether discrimination against homosexuals is wrong. My view -- the majority view, I think -- is that in most cases, discriminating against someone because he is gay is as despicable as discriminating against someone because he is Asian. Or Catholic. Or short.

There is never an excuse for antigay mockery or humiliation. There is no gay escape clause to "Love thy neighbor as thyself," the biblical command to treat each human being with decency and respect. Not even for those who believe (as I do) that homosexuality is not good for society and should not be encouraged.

Of course the no-gay-rights movement in Colorado, Maine, and Cincinnati is not aimed at writing bigotry into law. No one is proposing to deprive gays of any of the rights or protections to which they are entitled as citizens. Assaulting a homosexual in Aspen will be a crime no matter what happens to the Colorado amendment. Portland lesbians will enjoy free speech whether the Maine ballot issue wins or loses.

It is in areas where the law makes no guarantees -- getting a job, renting an apartment, buying a theater ticket -- that the no-gay-rights measures would allow homosexuals to be discriminated against. Such discrimination, if it occurred, might well be ugly and wrong. But should it be against the law?

After all, there is a host of behaviors widely deemed ugly or wrong that many gay activists and liberals would nevertheless insist ought to be legal. Homosexuality, just to begin with. Or for that matter, any sex outside of marriage. Or smoking marijuana. Selling pornography. Burning the US flag. Each of these is condemned by great numbers of people. How many liberals or gay advocates would argue that they should therefore be forbidden by the state?

The law should be modest. It is not the role of government to criminalize everything that some people, or even a lot of people, don't like. As important a virtue as nondiscrimination is, the preservation of individual freedom is more important. Liberals tend to favor freedom only when it comes to behavior they don't object to. But a true commitment to liberty means allowing individuals to do as they like even when you do object -- so long as they don't commit coercion or fraud against others.

But look here, says the gay-rights lobby. If Jones discriminates against Smith for no better reason than Smith's homosexuality -- by not giving him a job, let's say -- Smith will be hurt. That's not fair.

No, it isn't fair, and (assuming sexual orientation has no relevance to the job) Jones' behavior is indefensible. But Smith has not been cheated. That job was Jones's to give or withhold, and he withheld it. For a stupid reason? Perhaps. But part of being free is being free to be stupid. If Jones doesn't want to hire Smith because he's gay -- or because he has freckles, or likes heavy metal, or smokes -- that is his right. We don't curtail freedom of speech because someone might express foolish opinions. Nor should we curtail an employer's freedom to hire whomever he chooses (or a landlord's to rent to whomever he chooses) because he might base his choice on foolishness or prejudice.

The great exception to that principle is the civil rights laws. We made it illegal to discriminate on the basis of race, gender, color, ethnic origin, and religion because there was a broad national consensus that it was necessary to do so. The 1964 Civil Rights Act was passed with bipartisan majorities in Congress, and only after most Americans had concluded that racial/ethnic discrimination was so harmful to the nation's well-being that it had to be stopped, and so entrenched in the culture that it would take a law to stop it.

Homosexuality isn't in that category. There is clearly no consensus that gays need special legal protections. I doubt whether most Americans believe that antigay discrimination -- while real - is that huge a problem, either for the nation or for most gays. Bigotry there is, but oppression -- quotas to keep gays out of colleges, restaurants refusing to serve them, ghettoes they are forced to live in, redlining that cuts them off from credit -- there isn't.

The discrimination faced by gays should not be minimized. But it is not analogous to the deep-rooted persecution of other minorities that made the Civil Rights Act necessary. Antigay discrimination should be opposed because it is wrong. But just because something is wrong does not mean it should be illegal.

Related Topics: Homosexuality, Legal and Judicial Issues receive the latest by email: subscribe to jeff jacoby's free mailing list