[The following article was accepted by New Guard, the national magazine of Young Americans for Freedom, on Jun3 23, 1978, but Murphey is unsure whether it ever appeared in print.]  

 

“Gay Rights Ordinances”: Why They Are Inconsistent With Freedom 

Dwight D. Murphey

 

            Several cities in the United States have recently enacted “gay rights ordinances” prohibiting discrimination against homosexuals in employment, housing and public accommodations.  On May 9, the city in which I live—Wichita, Kansas—became the third city in which the voters have repealed such an ordinance.

             The result was as overwhelming as perhaps a vote can ever be in a free society: eighty-two percent of the voters cast their ballots in favor of repeal.

              I was gratified to see this result.  For reasons that I will express in this article, “gay rights ordinances” are, in my opinion, incompatible with the principles of a free society.

            At the same time, though, I have felt that although the voters decided the issue correctly, they did so for all the wrong reasons, at least so far as the reasons were articulated in the debate that preceded the vote.  In Wichita, the debate was framed almost entirely in terms of a confrontation between “the opponents of sin,” on the one hand, and “the advocates of tolerance and human rights” (who favored the “gay rights ordinance”), on the other.

            Libertarian arguments were expressed entirely on the side of the “gay rights ordinance,” which was pictured as a vehicle for the extension of freedom.  Almost nothing was said to point out that the soundest basis for repeal lay precisely in libertarian principle.  The result was ironic—that in voting to repeal an ordinance that violates the principles of a free society, the voters appeared, at least superficially, to be endorsing a reaction against freedom.

            (It is perhaps pertinent to mention that this impression was reinforced at least in part by the selectivity of the local newspaper, an opponent of repeal.  I submitted an article to it that included the points I will be making here, but the paper chose instead to publish religious arguments as the representative position on the repeal side.)

            I am not in the least bit faulting the various religious groups that led the movement for repeal.  They did an excellent job.  In fact, when the classical liberal intellectual movement is at a low ebb, as it is at our point in history, we can be thankful that there are groups in our society who share many classical liberal values and who have continuity by virtue of their faith and organization.  The fact that the issue was presented almost entirely in religious terms, however, rather than in terms of the theory of a free society, illustrates again the need for a revival of a vigorous classical liberal intellectual movement.

            What ought to be brought out with regard to the “gay rights” issue is that such an ordinance conflicts with the larger vision of individual liberty that has been propounded historically by classical liberal thought.  In order to force open opportunities for homosexuals, such an ordinance makes it criminal for others to exercise the broad freedoms that came at such great cost and that we all hope to possess—such fundamental rights as freedom of association and freedom of contract.  It also removes one of the most important social mechanisms of precisely a free society, as I will explain more fully as we go on.

            The issue actually involves a conflict between two very different worldviews and concepts of freedom.  The classical liberal concept, which I endorse and which would favor repeal, might appropriately be called a “general theory” of freedom.  The other concept is related to the ideology of the Left.  As such, it is fundamentally at odds with the general theory of freedom, since the Left interprets a society of free individuals as being rampantly exploitive and illiberal.  As against the general theory of a free society, it sets up what I will call a series of “special theories.” 

            The overall, or general, theory of a free society mainly originated in the eighteenth and nineteenth centuries as European society threw off the weight of kings, aristocracies, mental authoritarianisms and Mercantilist statism.  Before the Enlightenment, there had rarely been a society in which human activities and relationships had been established voluntarily rather than coercively.  But a series of classical liberal thinkers soon developed a systematic theory of a free society.  Their concern was necessarily with the principles and institutions by which an entire society could be free.

            It is impossible, of course, to discuss more than a small part of that theory in a short article.  The central idea, though, as the Nobel Prize-winning economist Friedrich Hayek expressed it in his book The Constitution of Liberty, was to “reduce coercion as much as possible.”  In this way, the voluntary energies of millions of people could be released.  It was anticipated, and I think correctly, that a society founded on the principle of voluntarism would exceed all others in human well-being, both as to material things and as to the humane values.

            One of the main principles of this voluntarism, although it has largely been brushed aside in popular thought and in American politics since the New Deal, has been the concept of freedom of contract.  If economic relationships could be voluntarily arrived at, the benefits of a wide and vigorous market system would follow, property would be dispersed in millions of hands rather than controlled by a central authority, and economic freedom could serve as the practical foundation for all the other freedoms.

            Needless to say, one of these other freedoms has been the freedom of association.  As with each specific liberty, it is interwoven into the entire fabric of voluntary relationships.

            Having said this, it is now necessary to look a little more deeply into some of the more subtle theory of a free society.  “Coercion” is definable as someone’s acting upon another person, in an effort to induce that person to follow a certain course of action, in a way that negatively affects that person’s other alternative courses of action.  It quickly becomes apparent that although we can reduce coercion substantially, we can’t eliminate it entirely.

            Partly this is because some criminal-type individuals will always be present.  They will make it necessary for the society, through a state, to exercise police powers to keep them in line.

            But there is an even more fundamental reason.  Some coercive potential is unavoidably a residual part of everyone’s exercise of choice.  This is true in all aspects of life, no matter how worthy.  If a person is to be a free individual, he must be free to choose and to act; and this means he will have some impact upon others.  There is no guarantee that that impact will always be favorable and never unfavorable in its effect on the alternatives open to others.

            This is a reality, by the way, that leads into sizeable areas of classical liberal concern.  Since coercive potential in enlarged by group activity, for example, classical liberals have had to weigh the legitimacy of several types of concerted action, such as of large-scale business enterprise and of labor organization.

            Few classical liberals, though, have ever been willing to have the state prohibit broad areas of personal choice, when that choice has had to do with the person’s control over his own property or associations.  Such a prohibition may eliminate the coercive residual, but it also removes the individual’s freedom of choice and increases the police-power of the state.  The reduction of coercion in one way leads to an increase of it in another.  On balance, there is a loss, not a gain, of freedom.

            Because the coercive residual that inheres in all free choice is an inescapable reality, classical liberal theory tries to turn it to good effect in behalf of a free society.  The residual becomes, in fact, one of the more important social mechanisms of the society.  A free society would be worse off without it, even though that may seem paradoxical.

            In recent years, Americans have become accustomed to hearing the counter-cultural “do your own thing” interpretation of freedom.  This has even been reflected in the anarcho-capitalist Right, which has found itself on occasion having a lot in common with the New Left.  But classical liberals historically have known that a society founded on voluntaristic principles has every bit as much need for social order as any other society.  There are essential preconditions that it must maintain.

            Accordingly, the ideal has been “ordered liberty” or “liberty under law.”  This means that voluntarism exists within, and by virtue of, an extensive framework of law, of institutions, of reinforced cultural and ethical values.

            It is hoped that the external discipline and the gradual inculcation of values and of self-discipline that the society needs can be achieved by the relatively mild, but at the same time ubiquitous, social and moral pressures that people bring to bear on one another.  Life within such a society is not to be existentially unstructured or to have all values and norms wiped out by an all-pervasive cultural relativism; it is to be self-controlling through the continuous reinforcement of values and behavioral norms by the great majority of people.

            This mechanism is essential if the coercive power of the state is to be kept at a minimum.  (An implication of this is that the mechanism is actually even more important in an anarcho-capitalist setting than in a classical liberal society.)  The choice is not really between social order and no social order.  It is between types of order and has to do with their compatibility with a broad area of personal freedom.

            In this context, I will say quite frankly, as I did in my writing a number of years ago, that as a classical liberal I oppose the state’s declaring the sexual acts of consenting adults a criminal offense.  It seems to me that the benefits to be derived by a free society from such legislation do not outweigh the undesirable features of delegating that much police-power to the state.

            But this makes it all the more necessary that I oppose the state’s outlawing of social pressure by the majority against homosexuality.  Such a prohibition itself invokes a pervasive police-power of the state, so that if it is vigorously rather than hypocritically enforced the specter arises of many thousands of people being charged criminally for violating it.  And it runs counter both to personal freedom and to the essential social mechanism I have described.

            The limits of this article don’t permit me to discuss the pros and cons of homosexuality in its relationship to a free society.  I will say, though, that it seems to me that the effects of homosexuality on a free society, and on the institution of marriage which is itself very important to such a society, are to be weighed judgmentally and empirically.  There would almost certainly be times in the life of a society when I would be inclined to urge the majority to tolerate homosexuality as a harmless aberration which would involve no threat to the heterosexual family.  It does not seem that we are living in such a time.

            It is enough to say that I would oppose such a law as “gay rights ordinances” even if I thought the social pressure against homosexuality involved an abuse of freedom by a majority of people.  We cannot, consistently with a free society, outlaw that freedom; I am even opposed to using the state as a “secular church” to try to mold it.  If a great many people make a faulty exercise of their free choice, their decisions ought to be changed only by persuasion, not by an elitist exercise of force against them. 

            So far, I have discussed only the classical liberal’s “general theory” of freedom.  It is now time to talk about the “special theory” that supports such legislation as a “gay rights ordinance.”

            This theory has for several years seemed almost irresistibly compelling to Americans.  It has viewed the problem of freedom as essentially the problem of minorities—although the minorities are defined so broadly as often to make up the great majority of the society.  To this view, the great problems both of equality and of liberty are the same, and are to be found in the oppression, and perhaps in the exploitation, of unassimilated groups by the society.  In Marxian theory, this exploitation comes from a certain group—the “property-holding class,” the bourgeoisie—within the society.

            The issue over the “gay rights” ordinances may seem to involve only the situation of homosexuals.  But this is misleading.  It drops the issues from its context.  We should understand the Left’s theory of freedom in historical perspective, since it has played a major role in the ideological divisions within Western civilization during the past two centuries and now throughout the world.

            We need to realize that the classical liberal model of a free society has always had powerful opposition.  Both during and after the Age of Kings, much of this opposition came from intellectuals who championed the values and institutions of the dying medievalism.  But these intellectuals were soon joined by others who began to articulate a socialist critique of society.  Eventually, both egalitarian socialists and national socialists (whom in Germany we know of, unfortunately, by the less descriptive shortened name of “Nazis”) joined in sneering at what they called “bourgeois liberalism.”

            In their struggle for political power and social status, however, such intellectuals immediately found themselves no match against the middle class majority.  The tactical ploy that they then used to overcome that disadvantage has been civilization-shaking in its consequences: for well over a century, they have sought to enhance their power by aligning with “have-not” groups of every description.

            The result has been the ideology of the Left.  This ideology has interpreted modern society almost exclusively in terms of the needs of groups and individuals whom the Left has seen as trapped and exploited within a voluntaristic society.  From this point of view, the main society is essentially oppressive; and the Left, alienated from even the freest society in classical liberal terms, invariably wishes (depending upon the degree of Leftwardness involved) either to smash the main society or to call upon the state as a helpmate for these groups.

            It is worth noting that the worldview that results from this alliance with the have-nots places relatively little, if any, value on what I have called “the general theory of freedom.”  As it weighs means and ends, it gives almost no weight at all to either the freedom of contract or the freedom of association of the ordinary person in the society. 

             In summarizing this history, my purpose hasn’t been to characterize every defender of a “gay rights ordinance” as a supporter of the Left.  But it has been necessary to clarify the issues of principle that are involved.

            As a classical liberal, I reject the Left’s long-standing thesis that a free society is significantly exploitive.  In fact, I look upon that society as the most progressive mankind has ever known.

            This doesn’t mean that there are no unassimilated groups.  But it does mean that anyone who values a free society in the classical liberal meaning of that term will want to be very careful that the methods used in effecting the assimilation are in keeping with the overall principles of a general freedom.

            It isn’t to be assumed, though, that every group can be fully assimilated.  Some groups may be differentiated from the main body of the culture by differences in behavior.  If that behavior is morally objectionable to the majority within the society, the group can only be assimilated if the majority renounces its social and moral values.

            And that would be disastrous to a free society.