Tuesday, August 5, 2008
In reporting the plan of several law professor organizations to boycott the Association of American Law Schools annual meeting if held in the San Diego hotel owned by a contributor to the California campaign against same-sex marriage, Tom Berg says that we ought to regard the protest/boycott as "legitimate."
If by "legitimate," Tom means legally protected, then by all means, definitely yes. The government should not interfere with the choice by consumers singly or organized (and I would argue many service providers as well) not to patronize (or serve) those whose actions or positions they find offensive. But if by "legitimate," Tom means that this is a laudatory development or one arguably in keeping with the nature of all of the entities that are behind the boycott plan, then I think we should say, definitely no.
Most of the law professor organizations that are involved in this boycott campaign—the Legal Writing Institute, the AALS Section on Legal Writing Research and Reasoning, and the AALS Section on Teaching—are scholarly and academic organizations, not political lobbies. These entities should have no political platform by which to guide their actions. Since when has the Legal Writing Institute or the AALS or any of its subunits been permitted to adopt political resolutions? Does this now mean that a member of the Legal Writing Institute or these AALS sections who is opposed to same-sex marriage is no longer a member in good standing? Does this mean that a member of these entities who dissents from the new official position in favor of same-sex marriage would be well-advised to remain silent or even resign? Should a scholarly organization committed to legal writing or teaching excellence be identified as a political lobbying entity and one that takes a particular stand on a disputed issue? Again, the answer should be definitely no.
When the American Political Science Association (APSA) was recently considering whether to move a future annual meeting from New Orleans, the advocates of relocation were careful to frame their argument in terms of the alleged concrete harms that gay and lesbian political scientists might experience when visiting a state that not only rejected same-sex marriage but also prohibited any legal recognition of same-sex couples comparable to marriage. The debate focused on whether there was a real risk that the legal regime in Louisiana would prevent a gay person's partner from participating in health decisions should that gay person be hospitalized during the annual meeting. Ultimately, the executive board of the APSA concluded that the risk was not substantial enough to justify moving the meeting, to which gay rights groups and others within the APSA have responded with a boycott.
However, during the APSA debate, it was always common ground that political viewpoints alone were not a "legitimate" basis for the APSA as a scholarly organization to make decisions about siting a meeting. No one contended that the APSA should take a stand for or against same-sex marriage. To contend otherwise would have been to corrupt the nature of a scholarly organization, which should be committed to the open exchange of ideas, into that of a political pressure group with a distinct political viewpoint. Not only would such a step have contradicted the very nature of a general scholarly organization and compromised academic freedom, it also would have created inappropriate political conflict among the members.
The boycott of AALS meeting events now proposed by these law professor entities has taken the very step that the APSA wisely understood was never a "legitimate" option for any entity that calls itself a scholarly association and claims to represent an entire field of scholarly study. As I understand it, no one is suggesting that gay and lesbian law professors will be endangered, denied service, or mistreated in any way at this San Diego hotel. The boycott is crudely political, nothing less. It is based solely on the illegitimate and non-scholarly endorsement of one side of an election referendum, which then is advanced by an attempt to preclude any association with those who take the other side of that election contest. Such an openly political gambit, on an election matter no less, is unworthy of a scholarly association. By so corrupting a scholarly association, academic freedom for all law professors is diminished. This is a sad day indeed for the AALS.
(By contrast, the Society of American Law Teachers (SALT) is an openly political organization, not a general scholarly association, and thus its threat of a boycott poses less of a contradiction to its nature. Nonetheless, by taking the unwise step of urging the AALS to become politicized and act in conformity with a particular political stance on a controverted election, SALT improperly seeks to enmesh a scholarly association in a political controversy. As Susan Stabile inquires in her post, SALT's action arguably also undermines freedom of expression for controversial viewpoints, which from time to time SALT has suggested is part of its mission. We apparently may expect SALT in the future to adopt political litmus tests for hotel owners, vendors, etc., which it then will demand be honored by the AALS at the risk of a political boycott.)