Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, September 12, 2010

Where does the danger actually lie?

I'm out of the country at the moment with rather spotty internet access, but I was able to check in at MoJ today and found Patrick Brennan's post about Carlos Ball's accusations of discrimination against him in hiring at Villanova. I know nothing about the facts in this particular case, but Patrick plainly does, and I'm glad that he published them, however reluctantly, to set the record straight.

On the more general point, let me put a question to everyone,  Let's imagine that Joe is a candidate for an entry level law teaching position at Villanova, Georgetown, Boston College, and Loyola of Los Angeles.  He is a secular person who self-identifies as gay and is living in a sexual partnership with a man.  He has thought carefully and read widely about issues of sexual morality and marriage, and has arrived at the view that any sexual act can be morally good so long as it does not involve coercion or deception and the parties performing the act find it mutually pleasant and fulfilling. He has also formed the conviction that state marriage laws should recognize same-sex partnerships as marriages.  Sam is a candidate for a law teaching position at Harvard, Yale, Columbia, and Stanford.  He is a Catholic who has thought as deeply and read as widely as Joe has about issues of sexual morality and marriage, but has arrived at different judgments. He believes that fornication, adultery, and sodomy are immoral acts and that the law ought to define marriage as the conjugal union of husband and wife.

Now, as it happens, Joe and Sam, despite their differences, have some things in common.  Both are summa cum laude graduates of Williams College. Both were Rhodes Scholars who earned D.Phil. degrees in philosophy from Oxford.  Both were law review editors at Harvard Law School.  Both were Supreme Court clerks.  Both are outstanding young scholars and promising teachers.  And one more thing:  Both are good friends of yours, and have sought your advice on the same question:  How big a risk would I be taking if I decided not to conceal the facts about myself and my views having to do with sexual morality and marriage?

Does anyone think that Joe would be taking a bigger risk than Sam?  Indeed, does anyone think that the risk is equal?  What would you tell Joe?  How would you advise Sam?

Or revise the example to leave the Catholic institutions out of it.  Imagine that Joe and Sam are candidates for positions at the top secular law schools---the ones that profess to be non-sectarian and neither liberal nor conservative in matters of morality and politics.  Joe and Sam are competing against each other and other candidates at Harvard, Yale, Columbia, Stanford, Penn, Chicago, Berkeley, and NYU.  Which one is in greater danger if all the facts about him and his views are known, Joe or Sam?   As a friend, would you give both of them the same advice, whether it is to disclose the facts or conceal them?  Or would you give them different advice.  Is there anybody---anybody---who would advise Joe to conceal and Sam to reveal?  Is there anybody who thinks that Joe would be put at risk in the slightest by disclosing the facts about himself and his views?  Is there anybody who thinks that Sam would not be taking any significant risk by revealing the facts about himself and his views?

Over many years of teaching, I've known lots of Joes and Sams.  I've never known a Joe who worried that disclosing the relevant facts about himself and his opinions would hurt him in seeking a position at a top-tier law school or university department.  By contrast, I've never known a Sam who didn't worry that his candidacy would be harmed by disclosing the facts.  Are the Sams needlessly worrying?  Are the Joes heedlessly not worrying?  For my part, it seems to me that the Joes and Sams are reading the situation pretty well. They know where the dangers are lurking, and where they're not.


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