Originally published Feb. 15, 1996, in the Windy City Times.
ONE MIGHT REASONABLY CONCLUDE that the State has always been the great enemy of gays and lesbians.
Governments once executed gays for simply having sex lives. In some places they still imprison people for homosexual behavior. Governments empowered psychiatrists to confine gays in institutions to be drugged and electroshocked as "therapy." The United States government refuses gays the right to jobs in its largest industry - the military.
Governments refuse to recognize the marriage contracts of gays and lesbians. Governments in most places refuse to promise not to discriminate against gays. And it is governments that by all these policies set the moral tone for a society that, as a result, devalues gays and gay lives.
Yet gay activists spend much of their efforts on trying to get governments to use their power on our behalf.
Clearly, we need to make some distinctions between liberty from government, equal treatment by the government, and government-enforced behavior.
Start with sodomy laws. For eons governments have tried their best to enforce laws that prohibit our sexual activities. Even when such laws are not often enforced, they remain - as religious conservatives want them to remain - as an assertion of state-approved moral values: a statement that our lives are of secondary importance and our sexuality is viewed with distaste and disapproval.
Governments are loath to give up the power to make this statement, as witness legislatures (e.g., Massachusetts and Minnesota) that have passed gay civil rights laws but retain criminal penalties for sodomy.
But it is consistent with the most vigorous assertion of our privacy, personal autonomy and liberty against government for us to say, "This is none of your business. Your job is to protect our zone of privacy, not invade it."
As libertarian political philosopher Friedrich Hayek pointed out in "Law, Legislation and Liberty," "What a person does when within his four walls, or even the voluntary collaboration of several persons, in a manner which clearly cannot affect or harm others, [should] never become the subject of rules of conduct that will concern a judge" (Vol. 1, p. 101).
The argument changes somewhat when we turn to gay marriage. With marriage, governments currently legitimize and grant favors to the relationships of one class of people (heterosexuals) but not to others (homosexuals).
There are two solutions. The one more commonly proposed is for the government to recognize the marriage contracts of gays just as it does of heterosexuals.
The other solution, as proposed earlier this year [1996] by Hawaii's governor Ben Cayetano, is that the government should not be involved in marriages at all; rather, it should simply adopt laws to specify the reciprocal rights and duties of domestic partners, both gay and heterosexuals.
A consistent concern for liberty and autonomy from government gives clear preference to Cayetano's proposal, but the root argument for both is the same: Gays equally with heterosexuals are tax-paying citizens the government exists to benefit, so it should provide equal access to services including the registering of contracts.
The same argument is at the core of our claim to serve in the military. We are citizens who pay taxes for the upkeep of the military. You personally may not wish to join the military, as I do not, but other gays and lesbians might. By excluding us, the military deprives gays of access to the career training and steady employment the military offers to heterosexuals.
In addition, being able to join the military has always served as recognition of civic legitimacy. Denying that opportunity to a class of people demeans their value both as people and as citizens. Even when African-Americans served in segregated units, they were still treated as citizens equally capable of serving responsibly in the military.
It is similar with gay marriage, of course. The significance of our relationships is demeaned by being ignored by the agency that grants legitimacy to "real" marriages.
When we turn to non-discrimination laws, we have to distinguish between two types and the radically different arguments for them.
Let us call Type A laws that prevent government itself from discriminating against gays and lesbians in employment, provision of services, etc. Such a law requires the government itself to treat gays the same as heterosexuals. Several cities have this kind of law.
The argument for such a law is the same as for gay marriage and gay access to the military: We are equally citizens and should receive the same access to opportunities the government provides to others.
The other type of non-discrimination law, call it Type B, requires not only that governments treat us equally but that the government force all private businesses, landlords, and "public accommodations" to treat us the same as heterosexuals.
It is not clear what the argument could be for this sort of law. We are not citizens of private establishments and we are not forced to support them by paying taxes. So what could be the origin of this right? And since there are usually a variety of potential employers and places to live, the basis of a right to any particular job or housing unit seems unclear.
The availability of other options becomes evident from realizing that by the time there is enough public support for a non-discrimination bill to be passed, there is already considerable social tolerance for gays and lesbians. In other words, by the time general (type B) non-discrimination laws are politically feasible, they are less "necessary" - on their proponents' own grounds.
It is also worth pointing out that the same laws also coercively prevent gays and lesbians who are business owners and landlords from showing any preference to us as gays over heterosexuals. Nor is it clear where the right of heterosexuals to work for a gay employer or rent from a gay landlord could come from.
Someone might say that we should want this kind of law to enforce morally virtuous behavior by people who are doing things we do not approve of. But this is exactly the same argument that anti-gay forces used against us in the past. So all we are really saying is that although they had power before, now we are gaining power and are going to use it against them.
It seems odd that gays and lesbians, with their harrowing historical experience of harm from government power, would turn right around and try to use that power to control others, and even be willing to increase government power over ourselves.
One might reasonably think that using governments to enforce morally virtuous behavior has all along been the problem, not its solution. The solution might well seem to be reducing the scope and power of governments by getting them out of the business of enforcing "virtuous" behavior altogether.