"Freedom to discriminate" is not freedom for all

Yesterday morning on National Radio, Stephen Franks announced that he would be willing to vote for the Civil Union Bill if he can use it to gut the Human Rights Act. In Franks' view, the state should be neutral, but individuals should be allowed to discriminate on the basis of race, gender, sexual preference, religion, or anything else they desire, as a simple matter of freedom.

What's wrong with this view? Simply that it is deeply confused, both about discrimination and freedom. If we take freedom seriously, if we want it to be substantive rather than purely formal, then anti-discrimination legislation is both justified and necessary.

Contrary to Franks, the evil in discrimination does not lie in who is doing it; it is inherant in the act itself. Some discrimination punishes people for characteristics which are no fault of their own (such as race, gender, or sexual orientation). This is grossly unjust. Other discrimination (such as that on the basis of marital status or religious or political belief) seeks to supplant the choice of the victim and replace it with that of the perpetrator. This is coercion, an usurpation of personal autonomy, and deeply destructive of human freedom. Both types of discrimination prevent people from participating fully in society, and therefore constitute a denial of our fundamental moral equality. But if these are reasons to bar discrimination by the government, they are also reasons to bar discrimination by individuals. Injustice does not cease to be injustice, or coercion cease to be coercion, simply because it is done by a private person rather than the state.

But what about freedom? As a pluralist who values personal autonomy, I believe that freedom is both necessary and valuable because it allows people to live lives of their own choosing. "Freedom to discriminate" interferes with this; it allows those with economic or social power to victimise those without, and force them to abide by their arbitrary whims. That is freedom for the pike, and we are entirely justified in limiting it. Like limits on the use of force, limits on discrimination do not diminish freedom, they enhance it. They help ensure that freedom can be enjoyed by all, rather than just by the rich and powerful.