Tolerance vs rights

In my yet-to-be published debate with Alan Soble about The Peel’s pro-gay door policy for The Philosophers’ Magazine, I argue for The Peel being allowed to decide who it allows in, and he argues for a door policy that does not discriminate on sex or sexual preference.

I think there is a confusion in Soble’s position. On the one hand, he thinks that people should not be disadvantaged because they are gay or straight, or male or female. He supports anti-discrimination law to neutralise so far as possible any negative repercussions of these characteristics (though I am unclear how being straight can be a significant disadvantage, unless you count kids). On the other hand, using anti-discrimination law to prevent gay-only bars entrenches disadvantages of being gay, such as the difficulties involved in identifying and meeting other gay people. You can be gay, but you can’t have institutions that support that characteristic.

A similar confusion is found in VicHealth’s More than tolerance report. It chastises respondents to its survey who would be concerned about a close relative marrying someone from a Christian, Jewish or Muslim background – especially Muslim:

The identification of ‘out-groups’ has the potential not only to affect the health of individuals directly exposed to discriminatory behaviour, but can create a climate of fear and anxiety…

But if you are serious about your own religion, why shouldn’t you be concerned about whether family members share it, and whether it will be passed on to children of the marriage? Like Soble’s stance on homosexuality, it seems that for VicHealth you are allowed to be religious, but you deserve scolding if you want an institution (in this case, the family) to help maintain it.

Where VicHealth goes wrong, I think, is in its rights framework. They insist that ‘discrimination is a human rights violation’, suggesting that rights must be derived from the ‘cultural, religious, racial or linguistic background’ characteristics that concern them. But rights can bite back, since culture, religion and language all rely to some extent on exclusion to maintain their distinctiveness, yet that breaches the equivalent ‘rights’ of others.

Rather than needing to go beyond tolerance, as VicHealth’s title suggests, we need to bring it back as an intellectual framework. Tolerance accepts that certain characteristics are important to others, and that therefore they should be able to live their lives according to the imperatives of those characteristics, without the rest of us stopping them.

This allows for a more contextual approach to those important characteristics. Someone’s religion is most likely irrelevant when they go out shopping or to work, and therefore norms against discrimination (and perhaps laws) make sense. In marriage, family and perhaps education, religion is likely to be important, and so there should be no norms excluding religion from those realms of life. Tolerance means different things in different times and places, just as the characteristics it is trying to protect mean different things in different times and places.

12 thoughts on “Tolerance vs rights

  1. I thought it was a simple property rights issue. The owner of any establishment may permit or prevent access to their property as they see fit without recourse to equal opportunity. Has a drunk prevented access to a pub been discriminated against? Has someone who is foul mouthed and uncouth got a right to sit in your living room? Do you have the right to shun the advances of someone you find unattractive? Do you need to give a Mormon the time of day just because he knocks on your front door? Do Catholics have to administer communion to non-Catholics? The law should have no role in discrimination except in the treatment of people before itself. Being gay, Catholic or Asian should mean nothing before a court of law. However at the private level discrimination against being straight, Muslim or Anglo-Australian should be entirely lawful. Normative ideas of tolerance and self-interest should (and does) eliminate most obvious acts of discrimination regarding access to private institutions like shops, banks etc. Soble is wrong and you are right Andrew.


  2. Andrew Norton wrote:

    On the other hand, using anti-discrimination law to prevent gay-only bars entrenches disadvantages of being gay, such as the difficulties involved in identifying and meeting other gay people. You can be gay, but you can’t have institutions that support that characteristic.

    I would have thought this was a case where, overall, anti-discrimination laws have been effective but should perhaps be decriminalized in the sense that it would allow more leeway in the application of the laws, without reducing their potency in the cases of actual harm. Making things illegal gives people pause for thought in their actions. The tolerance argument would unnecessarily lead to a laundry list of things you can and cannot do based on context, where discretion and complaint might be better arbiters of justice.


  3. David,

    Discrimination is not a criminal offence. The law only stipulates civil compensation for discrimination victims.

    The best law is law that is written in such a way as to favour no one individual or group. If we are to have anti-discrimination laws (and we shouldn’t) the only fair way is to enforce them absolutely. Any other interpretation gives one group more favourable treatment before the law over another. This is unjust. If anti-discrination laws aren’t working for gays, then perhaps they need to reassess the need for such stupid laws. Tough titties to them.

    The Peel case is a perfect reason why such legislation will always fail to achieve its aims. Arguing that gays are allowed to discriminate and heterosexuals aren’t is bulldust (almost defied Andrew’s XXXX policy there).


  4. Brendan, unfortunately your ideas do not take into account the idea that the discriminated against groups don’t neccesarily see things in such a black and white way as you do, and this creates social outgroups. The effect of having large social outgroups that hate you and the things you believe is easy to see when they start believing in false prophets that tell them to stick bombs on trains etc.
    Its not clear to me what you can do to fix that (I’m sure its very complex), but having groups that are disciminated against for generations (say, like every non-white group in Austraila was) is hardly a way to have free and liberal society. In fact, in my books, Australia has been extremely historically lucky in terms of the amount of trouble it has received from social out groups. Some countries have civil wars over groups not being able to get along for too long.


  5. Andrew – how much will you tolerate other people’s religious practices in Australia? Presumably not female genital mutilation? Is it OK if a group sets up schools where girls have to sit in the back of the class because boys are more important? At work would you try and roster (with considerable difficulty) around the fact that someone had to go off and pray at certain times?


  6. Russell – I think female genital mutilation can be covered by general laws against physical harm. I don’t think laws should decide who sits where in classrooms, or whether people can pray at work.


  7. My understanding was that anti-discrimination laws were essentially about trying to enhance access to services for people whose access may have been limited. There are no anti-discimination laws for heterosexuals (despite Fred Nile’s repeated attempts to introduce them in NSW) as a person’s heterosexuality doesn’t limit their access to many services.

    Having a “gay-male-only” door policy says that all non-gay-males aren’t welcome, but there are plenty of pubs, other than the Peel, that people who aren’t gay men can frequent. The “costs” to people who aren’t gay men are pretty minor. The benefits to the clientale of the Peel may be commensurately large as there are comparatively few pubs catering mostly to gay men or in which gay men feel comfortable.

    “The identification of ‘out-groups’ has the potential not only to affect the health of individuals directly exposed to discriminatory behaviour, but can create a climate of fear and anxiety…”

    This may or may not be true, but someone being concerned about a relative marrying any particular person is a private matter, not a public matter. The government is not a parent telling its citizens how they should feel.


  8. Andrew, the quote from the VicHealth’s report looks like it is talking about discrimination suffered by minority groups. It isn’t contradictory for minority groups to have institutions that support the group while supporting the removal of discrimination against minority groups.

    Logically, one could say that the minority group is discriminating against the greater community, which is true, but the costs to the general community are comparatively miniscule.


  9. Sacha,

    its not true that anti-discrimination laws are always targetted at minority groups, nor of groups who have access problems to sevices, nor of people that aren’t heterosexuals. The obvious example are women — that are lots of anti-discrimination laws protecting women even though women are the majority of the population and hence have protection via the democratic system (unlike most minority groups).


  10. Sacha – I agree, though I think VicHealth is getting into intellectual difficulty by assuming that anti-discrimination law protects ‘rights’ held by individuals, rather than trying to alleviate disadvantage suffered by some individuals by reason of group membership.

    BTW, Victorian anti-discrimination law does protect heterosexuals, with the Equal Opportunity Act prohibiting various forms of discrimination based on ‘sexual orientation’. There are not many cases based on that provision, and presumably very few are claims by heterosexuals, for the reason you state.


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