Every now and again, a reader will make a somewhat critical comment which helps make our point. And yesterday, in commenting on my piece chiding Log Cabin for backing the Employment Non Discrimination ACT (ENDA), Vast Variety did just that:
Unfortunately, when the majority of society finds it acceptable to discriminate then a business that discriminates will not suffer in the marketplace. Ask any African American you lived through the Jim Crow laws in the South if the businesses that discriminated against them suffered in the marketplace.
Southern businesses which discriminated against blacks in the era of Jim Crow didn’t suffer in the marketplace because those heinous and unconstitutional (as per Justice Harlan’s “Great Dissent” in Plessy v. Ferguson) laws mandated that private enterprises discriminate. If a businessman tried to gain a competitive advantage by dealing with black people the same way he dealt with whites, a rival could turn to state institutions to prevent that entrepreneur from acting in the interest of his own enterprise — as he saw it.
So, let’s contrast the Jim Crow era with the past forty-odd years, the era when gay people started becoming increasingly open about their sexuality. While many companies did indeed discriminate against “open homosexuals,” the state did not mandate that they do so. Indeed, as more and more gay people started coming out, private companies began to reach out to gay people, adopting non-discrimination policies of their own accord, developing marketing campaigns to reach out to our community and offering domestic partnership benefits to same-sex partners of their employees.
And while there were fewer examples of states which prevented companies from developing their own policies toward their gay employees and clients, such laws did exist. Until 2005, for example, when the Republican legislature overturned the meddlesome statute, the Commonwealth of Virginia “was the only state that prohibits businesses from offering health insurance to domestic partners of employees.” That law (while opposed by most of the people backing ENDA) had this in common with ENDA: each sought to tell private employers how to run their businesses.
A crucial difference between ENDA and Jim Crow is the motivations of those pushing the legislation. Backers of ENDA are indeed well-meaning folk, wanting the best for gay people. Backers of Jim Crow had malicious motivations, undermining the social and economic progress black people were making in the South in the immediate aftermath of the Civil War.
You simply cannot compare, as our reader attempted, a world without ENDA to the era of Jim Crow. At present, most states lack laws preventing private employers from discriminating against gay people. During Jim Crow, Southern states had laws mandating that businesses discriminate against blacks.
Yet, in states without legislation mandating that they do so, many private employers treat their gay employees with dignity. Jim Crow told Southern businesses how they were required to treat blacks.