In 1982, Wisconsin was the first state to enact a non-discrimination law that prevented companies from firing individuals based on their sexual orientation.
Now, imagine if you will, a socially conservative business owner in rural Wisconsin who learns that a hard-working and very reliable employee is gay. In a misguided (but, from his point of view, well-meaning) action, this employer offers to enroll his worker in a conversion therapy program. He refuses. Their confrontation creates tension between the two, resulting in a decline in the employee’s work performance. The employer fires him.
With the help of the ACLU and Fair Wisconsin, the employee takes the employer to court, contending the employer discriminated against the employee because he was gay (in violation of the 1982 statute). The Alliance Defense Fund hears of the case and offers not just to defend the employer — but also to challenge the constitutionality of the Badger State’s 1982 law.
The Fund turns to the First, Ninth and Fourteenth Amendments to make a case for the employer’s rights of free association as well as his liberty and property interests. Seeing this case as an opportunity to strike down not just the 1982 Wisconsin law, but other state mandates on employers’ rights, a number of libertarian groups join the suit.
Accepting these libertarian arguments, Governor Scott Walker and state Attorney General J. B. Van Hollen elect not to defend the law.
Now, while I contend that the libertarian argument may well have constitutional merit, I believe Walker and Van Hollen would be wrong not to defend the state’s law.
Before I write a post on a related matter, let me ask you, our readers to guess that related matter and why I offer this hypothetical.
NB: Tweaked the piece since I first posted it in order to improve the flow and make my point clearer.
Sorry, the comment form is closed at this time.