Smeared by Gay-Rights Activists
In the early 1950s, my great-uncle, Alphaeus Hunton, went to prison. It was the height of the McCarthy era, and he was serving as trustee of a bail fund established by the Civil Rights Congress, declared by the Subversive Activities Control Board to be a Communist-front organization. The fund posted bail for a group of men convicted of advocating the overthrow of the U.S. government. Several fled, and my great-uncle -- along with his fellow trustee, the eminent writer Dashiell Hammett -- refused to answer questions before a federal judge about the source of the bail money.
They were held in criminal contempt and put behind bars. The federal courts refused to hear their appeal, and the Supreme Court denied a stay. Hunton was subsequently listed as a subversive by the U.S. attorney general. He held a master's degree from Harvard, but in the fraught atmosphere of the McCarthy era was unable to find suitable employment. He ultimately left the country, and died abroad.
My late father told this story often, and its echoes have resonated throughout my life. I have spent my career fighting for genuine dialogue across our disagreements rather than the sloganeering, cant and demonization that have come to characterize our politics. My own choice of the academic life was spurred in no small part by my search for an arena in which what matters is not which side you are on but the quality of your ideas.
So you will perhaps excuse me if I have no sympathy for the efforts of gay-rights activists to smear and intimidate Douglas Laycock of the University of Virginia, perhaps our most prominent scholar of law and religion, for the sin of speaking his mind. A law student and a recent graduate, spurred on by the advocacy group GetEqual, have filed freedom-of-information requests for his telephone and travel records, in what they describe as an effort at dialogue about what they consider the harmful effects of his views.
This description is implausible. If they wanted to talk to him, they could knock on his door. The effort is aimed at intimidation. They want him to shut up.
Laycock's wrong is to have taken the position that there may be cases in which individual religious freedom should trump compliance with law -- a view that, during Bill Clinton's administration, was considered the liberal position in our politics. In particular, he has filed a brief in favor of Hobby Lobby Stores Inc., in the case challenging the federal government's rule that employers with religious objections must nevertheless comply with the mandate to pay for birth control, and he wrote a blog post in the Washington Post defending, in part, the controversial Arizona legislation, vetoed by the governor of the state, that would have expanded somewhat the protection of the state's religious freedom laws. (News reports insisted that the changes would have meant that a caterer, for example, could refuse to work the wedding of a same-sex couple; Laycock wrote that this wasn't what the law said.)
Laycock's approach to the constitutional issue may be right or wrong, but it's well within the mainstream conversation of legal scholarship. The late Ronald Dworkin, often tagged as the greatest defender of liberal theory in the legal academy, argued last year in his final book that Catholic adoption agencies with religious objections to adoption by same-sex couples should have a constitutional right to disobey laws requiring them to violate their convictions.
But even when a professor holds opinions off at the far margin, to target him or her for intimidation is an affront to the freedom that makes the academy worth cherishing. I was an undergraduate at Stanford when Nobel laureate William Shockley was peddling his theories on why genetic inheritance meant that the difference in IQ between whites and blacks could never be eradicated. Certainly there were students who wanted to boycott him. Instead he was invited to a debate with a leading geneticist. The auditorium was packed. Shockley had few fans in the crowd, but we listened respectfully, because we were there for the exchange of ideas.
That's what the campus is supposed to be: the place where we challenge one another to stretch our minds, not close them. (Thus my criticism a few weeks ago of this spring's fashion for disinviting unpopular commencement speakers.)
Laycock, whom I know only slightly but whose work I have taught for decades, is on the merits a supporter of same-sex marriage. So am I. What he refuses to do is subordinate his views on every issue to the attainment of that single goal. In this he is correct, and professors who behave otherwise are betraying the norms of the scholar's craft. Certainly the academy includes many whose opinions move with the prevailing winds. They deserve the opprobrium they receive. If the wind is master of your thoughts, your mind will drift off course.
Happily, Laycock has gained support from across the spectrum, including several professors and commentators who disagree with him on the constitutional boundaries of religious freedom. It would be nice to imagine that practitioners of this modern McCarthyism will slink away in shame. Probably they won't. They have too much in common with the McCarthyites of the 1950s who sent my great-uncle to prison. For those who prefer a world in which nobody holds unfashionable views, intimidation will always be preferable to argument.
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