A strange new respect for markets

April 6

The recent controversy over Brendan Eich, the Mozilla CEO who resigned under pressure after it was learned that he donated to Prop 8 six years ago, put gay-rights groups in a bind. They didn’t want to be seen as endorsing the proposition that people should be fired from their jobs because of their beliefs–even anti-gay beliefs. They knew that would be very bad politics in a nation where most states still don’t protect people from being fired simply for being gay, and where 33 states still don’t recognize gay marriages. No major gay-rights organization joined the Internet-based campaign to have Eich dismissed; none called for his resignation; and none advocated any kind of boycott. But at the same time, they wanted to tap the anger that many people still feel over the campaign to pass Prop 8, which exploited stereotypes of gays as trying to recruit children into homosexuality. And it wouldn’t hurt if the Mozilla controversy was a lesson to others who might be tempted to make similar anti-gay-marriage donations.

Enter the invisible hand of the market, which dispassionately weighs plusses and minuses, dispensing an amoral justice all its own. Thus writes  Lambda Legal’s Leslie Gabel-Brett:

 Eich expressed his views, which included the belief that same-sex couples should be denied equality and dignity; some customers, employees and others expressed their views that such a position was harmful, offensive and would motivate them to take their business or talents elsewhere; and the corporate board apparently decided this was bad for business. This is marketplace forces at work, influenced by the marketplace of ideas.

A similar sentiment was expressed by the Human Rights Campaign’s Deena Fidas, who wrote that Mozilla now had “authentic leadership” because “market forces” just “took over.” All over the Internet, we’ve seen the same deference to the wisdom of the marketplace from precincts not usually known for their economic libertarianism. It was just business being business, they say.  Nothing to see here.

These reactions are probably descriptively true. Eich’s resignation—or sacking—in the face of public controversy was probably good for Mozilla’s long-term reputation in an industry that prides itself on support for causes favored by progressives, and whose customers and stakeholders in particular expect respect for gay people and their relationships.

But it is hard to imagine similar matter-of-fact reactions if a company’s customer base and other stakeholders demanded, and secured, the resignation of a pro-same-sex marriage CEO. Imagine a public campaign, which has in fact been championed by the National Organization for Marriage, to “Dump Starbucks” because of its stand in favor of gay marriage. But instead of the flop the anti-Starbucks campaign has been, suppose that the Board decided to fire CEO Howard Schultz as a way to appease opponents. Would Lambda Legal observe that this was simply “marketplace forces at work, influenced by the marketplace of ideas”? Would the Human Rights Campaign laud the new “authentic leadership” produced when “market forces took over”? We know the answers. There was no neo-Hayekian outburst when marketplace forces went to work in support of Chick-Fil-A, which refused to recant its corporate donations to anti-gay causes. There was no celebration of Adam Smith when Phil Robertson was promptly restored to his place in A&E’s Duck Dynasty despite his remarks lumping together “homosexuals, drunks, and terrorists.”

Neither the marketplace of ideas nor the marketplace for goods and services is entirely value-free.  Markets reflect preferences, which themselves may be driven by invidious prejudices (as in the case of demands that gays be fired from their jobs: see Kameny, Frank) or by other deeply illiberal impulses (like the desire to punish, rather than to critique, the speech of dissenters). We can endorse these prejudices and impulses or we can criticize them, but it’s less than fully candid to imply that we don’t care either way or that the results are just neutral business decisions. By our example and by our advocacy (or silence), we help create the inputs the market lives by.

Nobody is obliged by liberal principles to buy the products of companies whose employment or other policies, or leadership, they object to. People are free to boycott. There’s no constitutional right to be a CEO. But organizing boycotts and applying pressure to get people fired ought to require extraordinary justification in a diverse and pluralistic country. For example, in my political cabinet, I have red files labeled “Hitler” and “Jim Crow” that I pull out when I meet actual fascists and Bull Connors, not someone who made a comparatively modest $1000 contribution to a $40 million campaign that, however nasty in execution, was an attempt to restore an understanding of marriage that prevailed in all 50 states and almost every country four years prior.

We’re not at the point where we’re entitled to say that those who don’t support gay marriage are just as odious as the racists of the Old South. There’s nothing quite like our racial history. A spirit of live-and-let-live tolerance, the spirit that made the gay-rights revolution possible, means being more cautious before turning disagreements, even over very important questions about which we feel strongly, into a replay of black-and-white historical struggles. It means being willing to entertain the 1% possibility that we might be wrong. It means not treating people the way they treated us, but the way they should have treated us. The gay-rights movement and its supporters are better than this. And hiding behind fictions about the marketplace won’t fool anybody.

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.
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