Bostock v. Clayton County, Georgia
By David Henderson
I’ve read a fair amount of commentary now, most of it very good, by constitutional legal scholars about the Supreme Court’s recent decision in Bostock v. Clayton County, Georgia. The decision is an umbrella one that covers not only the case Bostock v. Clayton County, Georgia but also some cases involving other employers.
All of the discussion, of course, is about whether employer discrimination against employees for being homosexual or transgender is constitutional. I’m not addressing that here.
The U.S. Constitution is not the last word in what’s right and wrong. Libertarians have something to say about this issue also, independent of the Constitution. Most libertarians I know believe that there are certain things governments should not do whether or not they’re constitutional.
What I find striking is that I’ve seen no discussion of a very relevant fact: in the case of Bostock v. Clayton County, Georgia, the employer doing the discriminating is a government entity.
Independent of the Constitution, government entities should not be allowed to discriminate on grounds of race, sexual preference, or anything else other than productivity.
Constitutional lawyers have their place in discussion of Supreme Court decisions. But there’s more to the case of Bostock and the government of Clayton County than a Supreme Court decision. Imagine there were no U.S. Constitution and no Supreme Court. A constitutional lawyer would have nothing to say qua constitutional lawyer. But libertarians qua libertarians would have something to say, namely, what I wrote above: government entities should not be allowed to discriminate on grounds of race, sexual preference, or anything else other than productivity.