My first column with this paper was in support of legalizing gay marriage (April 23, 2009). Now, almost three years later, it’s front page news as Washington became the 7th state to do it.
But one Pastor Ken Hutcherson, who preaches in Kirkland, wants none of it.
Because marriage hands out benefits, government must be equal about it, so gay marriage must be legal. Government could not, for example, give out food stamps only to heterosexuals.
But Pastor Hutcherson has a valid point that the new law goes beyond that into private life: there could be forced association with gays for Christians if they run a business, hire people, or rent housing. State Sen. Andy Hill (R-Redmond) seems to realize this too.
If I’m Christian, and I run a small business, or rent my basement, or need a nanny, I shouldn’t be forced to sell, rent or hire married gays — if that’s against my belief. Civil rights laws (like the Civil Rights Act of 1964 — one of MLK’s triumphs) have banned this, however.
The property rights libertarian, and Hutcherson, see this as going too far. Property rights should trump equality rights here, because it is private, non-governmental action.
It’s one thing to be equal, quite another to force association. And just because one’s endeavor is “open to the public” because one sells something, or hosts events, or hires, shouldn’t mean government equality dictates rule.
People don’t have a right to a job, a house or to patronize a particular private business, people do have a right to be equally treated in the doling out of government benefits. Key distinction. One is an “entitlement,” or positive right that requires action by private actors, the other is a “negative” right, just to be treated equally by official government.
Failing to contract with someone is not a violation of their rights, so private discrimination should be legal.
The state law in Olympia legalizing gay marriage allows for religious exemption, as State Sen. Rodney Tom (D-Medina) has said, alleviating part of Hutcherson’s concern. Churches may not get sucked in. But what about private businesses?
I’d submit that private businesses, landlords and employers should be able to discriminate. I know that’s controversial, but it’s just like a private family discriminating by inviting only a certain type of people to their parties. This is pure property rights. But under current federal civil rights law from the 1960’s, this kind of private discrimination is unlawful.
The new law in Olympia legalizing gay marriage may bring these issues back, however.
Jeff E. Jared is an attorney and Kirkland resident. He writes from a libertarian and law and economics perspective.