David Boaz

Why do conservatives support laws against discrimination for characteristics that they approve of, but not for characteristics they don't approve of?

In their attempt to oppose laws prohibiting discrimination on the basis of sexual orientation (that is, laws supporting gay rights) while supporting other such laws, conservatives have long tied themselves in knots. You shouldn't compare antigay discrimination to racial discrimination, they said, because race is an immutable characteristic, while homosexuality is a chosen behavior. Thus it's appropriate to ban discrimination on the basis of race. And also, they'll allow, all the other characteristics protected in the US by the 1964 Civil Rights Act - race, color, religion, sex and national origin.

But wait a minute, I used to say to conservatives. It's obvious to thinking people that sexual orientation isn't chosen - it may be genetic or environmental, but it certainly isn't chosen. As far as the individual is concerned, it's an innate or immutable characteristic. So if that's your standard, then discrimination against gays is just as unreasonable as discrimination against blacks. (Yes, conservatives could counter that orientation might be immutable, but sexual behavior is still chosen. Sort of like saying that you might be born Jewish, but you could stay in the closet and not practice your faith, and then you wouldn't suffer any discrimination.) And meanwhile, religion is a chosen behavior. Right? In most Christian churches, you must make a conscious decision to join the church, and that decision is normally made after reaching the age of reason.

Thus, it seems, conservatives are doubly wrong: They say that discrimination on the basis of immutable characteristics should be banned, but discrimination on the basis of chosen behavior should not. But they are wrong to say that sexual orientation is chosen, and wrong to imply that religion is immutable like race.

But then there's a twist: In fact, it always seemed to me, religion isn't really chosen. Most people join the church their parents attend. If your parents are Catholic, so are you. If your parents are Baptist, so are you. We see this in ethnic/religious disputes from Iraq to Serbia to Northern Ireland to India, where it's hard to distinguish between ethnic groups and adherents to particular religions. But we also see it among Americans who practice the faith of their fathers and often attend the actual church where their great-grandparents worshiped. So maybe the conservatives can reasonably consider religion to be biological or innate.

But now a massive new study from the Pew Research Center tells us that I was right all along, and the conservatives are indeed doubly wrong. Many people, at least in the United States, do change their religion. Indeed, it appears that 44% of Americans have switched religious affiliations, either to join another religion or to drop any religious affiliation.

So we're back where we started: Conservatives support legal protection against discrimination for chosen characteristics that they approve, but not for characteristics they don't approve of. It's not a matter of logical categories.

At Freedom Communications, the media company founded by the tenacious libertarian publisher R. C. Hoiles, which is still largely family-owned and freedom-oriented, they had an internal lunch debate on presidential politics the other day. According to Orange County Register columnist Frank Mickadeit, their corporate philosopher Tibor Machan advocated voting for the Libertarian Party. But the company’s CEO, Scott Flanders, had a different view:

But there was a hush as Flanders reasoned that Obama is the best candidate to work on four top libertarian reforms: 1) Iraq withdrawal, 2) restoring the separation of church and state; 3) easing off victimless crimes such as drug use; 4) curtailing the Patriot Act.

As it happens, a few days earlier I had talked to a leading libertarian writer, who told me that he supposed he’d vote for Obama on the basis of the Iraq issue.

Libertarian voters should be up for grabs this year, the Republicans having done such an effective job of pushing them away. But the Democrats don’t seem to be making much of a pitch for them. At the last Democratic debate, Clinton and Obama spent the first 30 minutes proclaiming their devotion to socialized medicine and protectionism. But maybe issues of peace and civil liberties — combined with the Republicans’ loss of credibility on fiscal and economic issues — really will push some libertarians into the arms of the Democrats, especially if the Democratic nominee is not self-proclaimed “government junkie” Hillary Clinton.

Brian Doherty, the author of the magisterial Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement, has some generous things to say about my new book The Politics of Freedom in Sunday’s New York Post. I especially like the subtitle in the reason.com version: “sells the libertarian message with sizzle.”

Brian discusses my claims about the extent of libertarianism among American voters and writes:

Whatever the near-term prospects for libertarian political victories, The Politics of Freedom reminds you of the service libertarians provide to public discourse: They can point out the hypocrisy, power grabs, hubris and counterproductive folly issuing from Washington under either political brand name since they are beholden to neither. …

No major political party has fully embraced the implications of the proper role of government that follow from Boaz’s simple limited-government vision. But when expressed that plainly, it’s a moral vision many Americans can cheer.

The Politics of Freedom is available at all fine bookstores, at Amazon, and from the Cato Institute.

Cato founder/president/CEO Ed Crane and Board member/senior fellow Bob Levy take on “the president’s bogus claims of limitless executive power” in his battle with Congress over the Terrorist Surveillance Program:

Abiding by the Constitution will not always shield us from bad laws. Nonetheless, even if the Constitution is not a sufficient guidepost, it is certainly a necessary guidepost.

For many years, we were at risk of losing important civil liberties through unchecked transgressions by the executive branch. Maybe we are still at risk. But thanks to the media, the courts and — belatedly — an energized opposition in Congress, the administration has finally resigned itself to a semblance of congressional oversight, even if judicial scrutiny remains inadequate.

The president’s bogus claims of limitless executive power are, for now, on hold. That’s the right constitutional precedent even if it ultimately produces the wrong policy outcomes. Longer term, the precedent is more important than temporal policy judgments. Justice Sandra Day O’Connor’s plurality opinion in the Hamdi case nicely captured the key principle: “Whatever power the U.S. Constitution envisions for the Executive … in time of conflict, it most assuredly envisions a role for all three branches of government when individual civil liberties are at stake.”

New York Mayor Michael Bloomberg’s continuing crusade to manage every aspect of his constituents’ lives has generated another perverse consequence: Customers of Wendy’s in New York will now get less information on nutrition than they did before the newest regulations. Wendy’s has posted this notice “For NYC Customers” on its Nutrition website:

Special notice to inquiries originating from New York City:

We regret that Wendy’s cannot provide product calorie information to residents or customers in New York City. The New York City Department of Health passed a regulation requiring restaurants that already provide calorie information to post product calories on their menu boards — using the same type size as the product listing.

We fully support the intent of this regulation; however, since most of our food is made-to-order, there isn’t enough room on our existing menu boards to comply with the regulation. We have for years provided complete nutritional information on posters inside the restaurant and on our website. To continue to provide caloric information to residents and customers of our New York City restaurants on our website and on our nutritional posters would subject us to this regulation. As a result, we will no longer provide caloric information to residents and customers of our New York City restaurants.

We regret this inconvenience. If you have questions about this regulation, please contact the New York City Department of Health and Mental Hygiene and refer to Health Code Section 81.50.

The Democratic candidates remind me of the Nixon-era TV series “The Mod Squad”: One white, one black, one blonde.

And really, that’s all I know about the show and about all I know about the candidates. What are the differences among them? Obama is eloquent and elegant. Hillary is earnest. Edwards is TV-actor cute and shouts more than the others–not that that ended up counting for much.

And like the TV show, the Democrats’ Mod Squad is based on a lot of ideas that seemed cool in the early ’70s —  energy independence, groovy kinds of alternative energy, national health insurance, fine-tuning the economy, higher taxes, cheap money, interest rate freezes, corporation-bashing, and ending the war but not any time soon.

So instead of a bridge to the 21^st century, the Democrats this year are offering us a bridge to the post-Woodstock era.

But the good news is that while the early ’70s were marked by plenty of policy disasters—Nixon’s wage and price controls, Ford’s “Whip Inflation Now” buttons, Carter’s “turn down your thermostats”—those things did make more people aware that the old regulatory policies had dramatically slowed down economic growth. As the ’70s went on and turned into the early ’80s, good things actually started to happen. Transportation, energy, finance, and telecommunications were deregulated. Capital gains and then income tax rates were reduced. Both large corporations and large unions were on the decline. CNN, Microsoft, and Apple were founded. Blacks, women, and gay people moved into the mainstream of society. After Watergate and Vietnam, Congress curbed some of the powers of the presidency.

Maybe the Mod Squad will once again be a precursor of better times to come.