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Sunday, October 04, 2009

A belated farewell and a parting issue

Thanks to Dan for allowing me to spend some time here. Other responsibilities prevented me from blogging as often as I may have wanted, but perhaps it will be better next time.

So as an nontenured conservative who came to legal academia well into midlife, let me leave with you with a question to discuss among yourselves. There was, at least, a minor controversy over Boston College law prof Scott Fitzgibbon's participation in an ad opposing gay marriage in Maine. His appearance prompted folks at BC to circulate a petition reaffirming "our belief in the equality of all of our students."

Candor prompts me to say that I do not support same sex marriage. I spoke frequently in favor of a state constitutional amendment prohibiting it and currently represent clients in a challenge to a domestic partnership registry which they claim violates that amendment. Yet I would have no problem signing a statement that affirmed the equality of gay and lesbian students,

I would, however, have to be obtuse not to see that some of these students may see my opposition to same sex marriage and my commitment to their equality as inconsistent . They may well see me as making a judgment about them that I myself don't believe I am making. 

The issue is further complicated by the fact that many of the major religious traditions, while still affirming the equality of all, are critical not only of same sex marriage but of same sex relationships generally. For those of us who, like Professor Fitzgibbon, teach at Catholic institutions, this adds another layer of complexity. Even if we do not share - in whole or in part - the Church's view on human sexuality, it would be a tad incongruous to treat it as a view unworthy of respect.

How is this conundrum to be resolved? I can't avoid it because two of the courses in my teaching package (Law and Theology and a course on the Wisconsin Supreme Court and state constitutional law) require that the issue be treated in the class room. Personally, I feel an obligation to be very intentional and explicit about what I do and do not believe and, perhaps, to bend over backwards to avoid that being misapprehended. I feel the need to reassure students that my views do not imply any particular judgment about them and that they can disagree with me and still do very well.

Is that fair? Shouldn't we all do that with respect to our publicly expressed views? Was Professor Fitzgibbon's position really problematic? Is there a danger in pulling up the moral barricades on this issue?

As we say in Milwaukee, see you around the bubbler.

H/T: Mirror of Justice (Rob Vischer and Robert Araujo, S.J.) 

Posted by Richard Esenberg on October 4, 2009 at 01:19 AM | Permalink

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Comments

I'm with a reader. Some students will be offended by your position. Some of this will discount you as a decent person because of it, and some of them will discount you as an intellectual because of it. There is no way to avoid this, and I'm not sure you're going to mollify many people who would otherwise be offended based on how you state your opinion. All you can do is figure out what you can best live with in this regard and if that's full disclosure, continue to do so.

Posted by: anon | Oct 5, 2009 4:44:40 PM

Your post presupposes that state-sanctioned marriage is a citizenship right. One can certainly dispute that conclusion without being intellectually and morally incoherent.

On the other hand, in a representative democracy, voting rights would seem to pretty clearly be a citizenship right. It would be much harder to rationally dispute that assertion.

Posted by: anon | Oct 5, 2009 4:41:28 PM

Humble apologies, anon--perhaps recast my original hypothetical to state "It is 1948, and candor prompts me to say that I do not support voting rights for African-Americans. I speak frequently in favor of a constitutional amendment prohibiting this.... Yet I would have no problem signing a statement that affirmed the equality of African-Americans..."

In other words, at one point in the very recent past, voting rights for African-Americans were not protected by the Constitution and by federal law. Now they are. I apologize for not making this point more clearly in my original comment, and would note that I was simply trying to observe that today's opponents of gay marriage run a serious risk of looking like yesterday's opponents of civil rights for African-Americans.

Professor Esenberg's post raises an important issue for those who believe that gay marriage is a key civil rights issue for our time, just as debates over voting rights for African-Americans presented a crucial moral test for people who lived through the 1940s, 1950s, and 1960s.

I would respectfully suggest that posts such as Professor Esenberg's, above, which claim to endorse the equality of gay students, but at the same time would deny them equal access to full citizenship rights, represent intellectually and morally incoherent thinking, at best.

Posted by: a reader | Oct 5, 2009 4:02:45 PM

Voting rights are protected by the Constitution and by federal law. Marriage is not. Apples and oranges in your rephrasing, friend.

Posted by: anon | Oct 5, 2009 2:07:55 PM

"Candor prompts me to say that I do not support voting rights for African-Americans. I spoke frequently in favor of a state constitutional amendment prohibiting it and currently represent clients in a challenge to a that amendment. Yet I would have no problem signing a statement that affirmed the equality of African-Americans..."

Does the above rephrasing help anyone else see a profound incoherence and inconsistency in Professor Esenberg's position?

I would humbly suggest that instead of worrying about how to treat this issue in the classroom, one might first re-examine one's position on this issue.

Posted by: a reader | Oct 5, 2009 11:26:43 AM

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