Friday, April 29, 2011
[I]ntimidation—“mau-mauing the flak-catchers,” Tom Wolfe memorably called it—is now the default tactic of same-sex marriage advocates. What else, for instance, explains the antics of now-retired federal judge Vaughn Walker, who wanted to broadcast the Proposition 8 trial in California, and then broke his promise—and his legal duty—to keep the trial’s video record from public view? What else explains the instantaneous denunciation of all opponents of same-sex marriage as “haters”? Resistance to such intimidation, in the name of the ethic of institutional integrity, is fast becoming the duty of all persons in positions of institutional responsibility, whatever their private views on homosexuality or same-sex marriage. When we witness such principled resistance, as in the case of Dean Evan Caminker’s decision to stick with Ohio Senator and alumnus Rob Portman as the commencement speaker at the University of Michigan’s law school—despite the outcry of those who object to Portman’s 1996 vote for DOMA as a House member—we should applaud it heartily.
Yes, we should applaud institutional resistance to intimidation heartily, but I think we need to pause and acknowledge that maintaining institutional openness to both sides of the SSM debate depends on a substantive analysis of that debate and an ability / willingness to distinguish it from other civil rights debates. Sometimes we applaud when institutional legitimacy has been withheld from positions that were once deemed plausible, even mainstream. Today we would not as readily embrace a law firm that devotes its time (especially at a discounted billing rate) to defending the constitutionality of an anti-miscegenation law, nor would we deem prudent a law school's decision to invite David Duke to serve as its commencement speaker, even if he was an alum. My point is not that inviting Rob Portman to speak is the same as inviting David Duke to speak; my point is that we need to be able to explain the difference in terms that are accessible to, and that resonate with, institutions; this is no easy task, for (most) institutions have a hard time engaging with moral norms beyond those of nondiscrimination and individual liberty.