Conservatives used to love government coercion — when it helped ban gay marriage

The controversy in Indiana points to a huge logical hole in the conservative worldview

A military veteran is arrested during a protest against “Don’t Ask Don’t Tell” in 2010.
(Image credit: (REUTERS/Kevin Lamarque))

Conservatives are clear on one point these days: Government coercion is bad. So when Sally Kohn at Talking Points Memo wrote an unfortunately muddled post arguing that statutes outlawing discrimination against LGBT people are not inherently coercive, Sean Davis leapt to the attack:

That's how laws — even vile ones like those of the Jim Crow era — work. Blacks didn't choose to use different water fountains or lunch counters. They were forced to do so by police, hoses, and dogs. A law is nothing but a threat backed up by force. This principle is not "ideological," as Kohn tried to suggest on Twitter. It is definitional. The threat of force is what converts a mere recommendation into an actual law. [The Federalist]

On this point, Davis is correct and Kohn is wrong. However, Davis seems blithely unaware of the ideological rake he stomped on in making this argument. For if all laws without exception are coercive, and they most surely are, then the government is unavoidably involved in either preventing or propagating discrimination. The idea that government coercion in itself is bad is blown out of the water — as is half of conservative political argumentation.

What Davis seems to forget is that laws like ObamaCare (which supposedly tramples individual liberty through coercion) or statutes against LGBT discrimination (which supposedly tramples religious freedom through coercion) aren't the only ones on the books. There is also property law, corporate law, securities law, contract law, labor law — the very foundation stones of our economy.

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These laws also operate on coercion. If you interfere with someone's property right, by entering his house without his consent, for example, then under the law he can call on public authorities to, at the very least, violently compel you into leaving. He can probably call on them to stuff you into a jail cell and, in some cases, kill you outright. Property, wealth, and corporate structures rest on a premise of violent state coercion — that is to say, law, per Davis.

Coercion is a background condition of all economic activity. That recognition has led past reformers to argue that people and businesses must accept some social responsibilities in return for their guarantee of state protection. If you want the state's help in evicting deadbeat tenants, you must not discriminate against unmarried couples, as the California Supreme Court once decided.

Similarly, an anti-discrimination statute would require businesses to serve LGBT customers to access the state's capacity for violent coercion. Whether such requirements are just depends on their inherent morality, determined by some other means — not on whether they are coercive.

As Robert Hale persuasively argued, coercion simply saturates the economy. The system of property and ownership coerces people into working for wages, because it's either that or deprivation, if not starvation. Workers, either by collective action or their relative scarcity, use what power they have to coerce higher wages from their employer. Consumers can use their power to withhold purchasing to coerce businesses in one way or another, and so on.

At any rate, as Matt Yglesias demonstrated, the moral-political question when it comes to religious discrimination is a fairly tricky one. While I believe most businesses should not be allowed to discriminate, I certainly sympathize with the hapless pizza shop owner who stepped into a massive internet firestorm by saying he wouldn't cater a gay wedding.

But until quite recently, conservatives were huge fans of violent state coercion when it came to LGBT people. During the 2004 election alone, they had gay marriage bans on ballots in 11 states, every one of which passed. George W. Bush wanted to amend the Constitution to prevent same-sex marriages forever. By 2008, all but seven states had gay marriage bans of one kind or another.

This history has suddenly become rather inconvenient. Over at National Review, the new line is that gays and anti-gay marriage people have been "coexisting rather easily in Indiana for a great long while now," omitting the state ban on gay marriage. It's only now that the shoe is on the other foot, and conservatives find themselves on the receiving end of a culture war rout, that state coercion has become this threat to the American way of life.

I'm sure it doesn't feel great — 2004 was no picnic for the lonely gay marriage supporter, even if you lived in Oregon. But it's also true that nobody has a principled anti-coercion stance, because it's not really possible. Most people would like to pin the normatively loaded weight of coercion on the enemy, and demonstrate that their own side is not coercive in the slightest. Either way, it's a crock.

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