On freedom of speech, social tolerance, and opposition to gay marriage (updated with a response to Travis Weber of the Family Research Council)

April 23

I agree with most of the points made in this recent statement on the forced resignation of Brendan Eich from Mozilla, put together by co-blogger Dale Carpenter and several other prominent gay rights advocates. Like the signers, I support same-sex marriage; I have even argued that laws banning same-sex marriage are unconstitutional sex discrimination. Like them, I also believe that opposing same-sex marriage or contributing money to political efforts to stop it should not be a justification for firing people from a job or for social ostracism. In addition, I think all or most of the signers and I also agree that Mozilla and other private firms should have the legal right to fire people for political disagreements, that outsiders had the right to advocate such a firing, and that Eich’s First Amendment rights were not violated. And just as Eich’s detractors had the right advocate his ouster, others have the right to decry their actions and the atmosphere of intolerance that they helped to create.

That said, I felt unable to sign the petition when asked, because there are some parts that might be construed as claiming that it is never appropriate to fire people for their political views. For example, at one point the statement asserts that “the consequence of holding a wrong opinion should not be the loss of a job.” I think this is true in the vast majority of cases, but not always. For example, few would object if Eich had been fired for donating money to the KKK or a neo-Nazi organization – even if he had otherwise performed his duties well, and had never mistreated any of Mozilla’s black or Jewish employees. Despite some deplorable PC excesses, overall the effort to stigmatize racism and Nazism has produced some beneficial results. Elsewhere, I have suggested that there should be greater stigma attached to advocacy of communism than there is at present among Western intellectuals. Advocates of such ideologies should not be persecuted by the government or barred from all employment (even by private action). But it makes sense to impose some social stigma on them and exclude them from positions of great influence and prestige. Indeed, there has never been a society, no matter how liberal, that did not regard at least some ideas as “beyond the pale.”

I recognize that it’s possible to interpret the statement as being entirely compatible with my position. When I suggested some minor changes in wording that would have made that clear, I was told that the drafters probably would not object to the changes, but that it was too late in the process to make any. Despite the good intentions of the drafters, I felt I could not sign the statement in a situation where many readers might interpret me as endorsing a position I don’t actually support.

In an ideal world where everyone carefully weighs opposing arguments strictly on the basis of logic and evidence, stigmatization would be both ineffective and unnecessary. In the real world, unfortunately, it can be a necessary evil, albeit only in extreme cases. In this post, I am not going to outline a complete theory of how we identify those instances. But I will say that opposition to same-sex marriage does not qualify. As the statement points out, people can oppose it for a variety of reasons, some of which are not even homophobic. In addition, it is both dubious and counterproductive to try to stigmatize a viewpoint that enjoys such widespread support, and until very recently was actually held by a majority of the population. Popular positions are often wrong, sometimes even badly so. But stigmatizing people who did little more than endorse the conventional wisdom of the day is unlikely to do much good, and could well generate a counterproductive backlash.

UPDATE: Travis Weber of the Family Research Council responds to this post here:

Professor Ilya Somin claims there’s a limit to the rule that people should be free from stigmatization for holding certain views. His own view is that people should not be stigmatized for opposing same-sex marriage, but should be for supporting the KKK…

In so holding, Professor Somin is making a moral judgment. But what is it based on? I’m not opposing his rule here, but only pointing out that it begs the question: to what moral code or ethical authority does he look in determining what views should and should not be stigmatized?

I’m not going to outline a complete theory of morality in a blog post. But the short answer to Weber’s question is a combination of logic and empirical evidence. Opposition to same-sex marriage is distinguishable from Nazism, racism, and communism based on a combination of 1) the magnitude of the evil involved, 2) the extent to which the evidence against the view in question is overwhelming, and 3) the likely effects of trying to stigmatize the view in question, which in the case of same-sex marriage is likely to be counterproductive.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
Comments
Show Comments
Most Read National
Next Story
Jonathan H. Adler · April 23