By Diogenes ( articles ) | May 08, 2006
Good piece by Maggie Gallagher in the Weekly Standard, sub-titled, "The coming conflict between same-sex marriage and religious liberty." Below, she's speaking about a conference in which scholars for and against gay marriage were invited to address problems of religious liberty:
Reading through these and the other scholars' papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead -- perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage." That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law.
By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that's pretty close to the world in which they live now.
A well-played finesse: having convinced legislators that hate-inspired acts should be crimes (even where they inflict no harms otherwise regarded as criminally injurious), you then put it about that opposition to your program of social change is so obviously irrational than it can only be motivated by hatred. Thus you criminalize opposition to your agenda. Game. Set. Match.
It's interesting that intellectuals generally, scholars in particular, and legal scholars par excellence, used to be identifiable by their capacity to distance themselves from self-interest. For a scholar to champion an idea or a cause that conferred a benefit on the class to which he belonged was regarded as shameful -- sordid political hack-work -- and conversely there was a pride in a scholar's arguing (or, in the case of judge, in ruling) for an outcome that would positively harm the scholar (or judge) himself in some concrete way: by requiring the forfeiture of a privilege, say, or a loss of income. Indifference to one's own injury was taken as sign of disinterestedness, disinterestedness as a sign of objectivity, objectivity as sign of scholarly fairness and equanimity -- which stood as a near cousin to the virtue of justice itself.
Was self-interest sometimes wrongfully disguised as dispassionate scholarship in the days when the latter was idealized? Of course. But the ideal was there for all that, and not every scholar was a cynic. Today, as Gallagher's article illustrates, scholars simply assume they're meant to be advocates of self-serving causes, and any distinction between politics and academic endeavor is regarded as laughably naive -- or, at best, as old-fashioned pedantry. To object to an academic who was a gay-marriage partisan, "But you're in a same-sex relationship yourself!" would be met with bafflement, like objecting to an attorney's advocacy on the grounds that he was receiving a fee from his client. "What's the problem? That's what I'm in the business for."
But notice the asymmetry of motive. While the randy pro-choice prof with a sweet tooth for undergrads reaps an obvious benefit from laws that provide for abortion on demand, his pro-life colleague has no comparable personal interest in laws that restrict abortion. And the same holds true across the culture-war front: those who oppose contraception, or gay adoption, or pornography, or same-sex marriage, cannot plausibly be said to benefit personally from the outcomes they advocate. So how do the progressivist partisans deal with the lopsidedness of self-interest, the asymmetry of motive? They don't deny their own obvious interests; they simply claim their adversaries are fueled by hatred. It works.
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