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Friday, April 22, 2011

Social conservatives and graduation speakers

There is a new controversy at the University of Michigan Law School, which has invited Republican Sen. Rob Portman of Ohio (who previously has served in the House of Representatives and as U.S. Trade Representative and head of OMB under George W. Bush) as its graduation speaker. A number of students  have complained to Dean Evan Caminker about the choice, citing Portman's record on gay rights--which include past votes in favor of a constitutional amendment banning same-sex marriage, the Defense of Marriage Act, and an unsuccessful 1999 proposal to prohibit gay people from adopting.

This calls to mind a similar debate three years ago over Washington University awarding an honorary degree to Phyllis Schlafly. Interestingly, the Wash U. objectors at least attempted to frame their objections to Schlafly in neutral terms: It was not about her political views (such as opposition to ERA, same-sex sexual relations, and feminism generally), but about her anti-intellectualism and demogoguery, although at the time I questioned whether those process points could be so easily separated from her substantive political views.

By contrast, a petition circulating among 3Ls, calling for Dean Caminker to withdraw the invitation, states:

We are not writing because Sen. Portman is a Republican, nor because he served in the Bush Administration. Neither is a fair or principled reason to retract his invitation. Rather, we are discouraged by this choice because Sen. Portman vocally and actively supports denying equal rights to gays and lesbians, many of whom will be attending this year’s Senior Day ceremony.

That is an explicit objection based on (some of) Portman's substantive views, without pretense to neutrality or process. The idea that Portman's views on these political issues constitute any more of a "fair or principled reason to retract his invitation" than his simple party affiliation seems dubious. Either objection goes to the heart of his substantive viewpoints.

The question becomes whether objection based on those viewpoints can be principled. We really are back to the question--Portman explicitly, Schlafly implicitly (although really just sub silentio)--of what political and social positions and viewspoints are simply beyond the pale. The view in both cases is that opposition to marriage equality and GLBT rights is nothing more than simple bigotry, an illegitimate position that should not be given the elevated platform of a graduation speech and that is "deeply unfair" to impose on the students forced to sit through it. But that seems to mean, ultimately, that, for these students and many others, even mainstream social-conservative views on questions that still are being contested have no place in a position of honor in the academy. (By the way, I do not believe there is a difference, for current purposes, between graduation speaker and recipient of an honorary degree. One could say that the latter involves some university endorsement of everything the recipient has done and believes. But at least some individual UM students, when interviewed, have suggested that letting Portman speaks involves just such an endorsement of all of Portman's political views).

Last time, in trying to determine whether the objections to Schlafly were really substantive, I asked "if not Schlafly, then who"--what person with similar views on GLBT rights would be acceptable.  Apparently for some students, at least, the answer does not include sitting U.S. Senators.


Posted by Howard Wasserman on April 22, 2011 at 08:43 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink


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Who cares? Most of these liberal progressives aren't worth the time or the effort. Let them wallow in their own muck. And while we're at it let us all end the various multitude of subsidies that I help pay for. If they don't have to listen to conservatives then conservatives don't have to help pay for their education. Isn't that a fair deal?

Posted by: memomachine | Apr 25, 2011 10:17:30 PM

I think Portman should decline the proffered honor. When he gets back to Washington he should submit a bill to the Senate to defund* all of the universities, as they are nothing more than leftists concentration camps.

Their tax exemptions, and right to receive deductible contributions should be revoked. Further a portion of their endowments reflective of their previous tax exemptions should be taxed away.

Posted by: Walter Sobchak | Apr 25, 2011 9:51:58 PM

Everyone has political views that are "beyond the pale" to some, or even many, people.

There are so many "beyond the pale" views held publicly by mainstream liberals, or so beyond the pale they keep them buried deep in their hearts, only to be discussed when surrounded by fellow leftists at faculty meetings and Democrat fundraisers without cameras present.

Soldiers are evil baby killers.
Minorities should be trapped in a welfare system just to keep them voting Democrat.
It's good to punish the rich for being successful.
Dissent against leftists is not to be tolerated.
Violence in the name of "the workers" (unions) is AOK.
Men are all potential rapists.
Domestic violence against men by women can be ignored with a wink and a nod.
Banning DDT at the cost of 1 million deaths to malaria each year is a good thing.
Convincing leaders of starving nations to destroy donated genetically modified food is a good thing.
Islam is a religion of peace and all the jihadi murders, genital mutilation and killing of LGBT just for the crime of merely existing demands no action beyond token remarks.
If only the Jews would roll over and die, peace would break out in the Middle East.

Oh, and then there's the general support for Communism. That political system that has managed to kill 130 million people in a single century. But no. Marxism is still trendy.

"Beyond the pale" views? The Left clearly holds the winning hand in that game. College Repulicans should protest in exactly the same fashion EVERY SINGLE LEFTIST who gets chosen to speak. Nearly all have at least one of the disgusting beliefs listed above.

Posted by: level3 | Apr 25, 2011 9:51:49 PM

I find it somewhat repulsive that people here are equating racial equality with blanket acceptance for certain types of sexual behavior.

A homosexually oriented person is of equal dignity to a straight person in all respects, as are all persons; but their sexual behavior does not have to be accepted as a right or a good by everyone, anymore than other behaviors such as rhinotillexomania and coprophilia.
A distaste for certain behaviors like male homosexuality is a natural instinct that evolved to insure time and energy weren't wasted on courting the same sex. After a mere 30 years of lobbying, a genetic behavior found in all populations, and all cultures, in majority numbers; is dubbed as abominable by a minority of establishment elites.

We can love, respect and enjoy great men such as Ian McKellen, Nigel Hawthorne and Freddie Mercury. However, we shouldn't be forced to approve and endorse their sexual peccadilloes.

Posted by: Cognitive dissonance | Apr 25, 2011 9:41:16 PM

Humane and decent people have no rights a LGBTZ need respect. The triumph of Jim Crow and Dredd Scott and the LGBTPZ is complete: hate over humanity.

Posted by: ErisGuy | Apr 25, 2011 9:29:40 PM

It's not that I am strongly against gay marriage, but this knee-jerk reaction to conservatives is typical in academia. And as predictably as the sun rising in the east, I see in the comments that if the leftists don't get their way and Sen. Portman is dis-invited, there is going to be some sort of protest to try and ruin the event. The popping of the higher education bubble can't come soon enough . . .

Posted by: sane_voter | Apr 25, 2011 9:22:34 PM

I guess law students, in all their accumulated wisdom, not to mention their lack of employment, get to decide that Christian moral values are now, in 2011, two centuries after the birth of Christ, morally unacceptable in polite society. Lefty hubris? Ya think???

Posted by: Basil Legg | Apr 25, 2011 9:10:23 PM

So the folks at Michigan have a strongly-held belief that same sex marriage is a fundamental right. Maybe Senator Portman and fifty of his colleagues will have the strongly-held belief that taxpayers should not subsidize a bloated pseudo-academic institution that churns out unneeded and unprepared protolawyers into an already flooded market. If the school wants to legitimate ideological retaliation, they are in a prime position to reap what they sow. For that reason, I suspect that cooler head will prevail and Senator Portman will have a chance to speak at his alma mater's graduation.

Posted by: Prosecutorial Indiscretion | Apr 25, 2011 8:53:04 PM

The left in the academy never gets it.

As soon as they try to impose their view of what is acceptable, the people who foot the bill for their antics will step in and say WE will decide who and what is acceptable, through their elected representatives. And for some reason they never like that. Who could have seen it coming? They never learn.

Posted by: Stubbs | Apr 25, 2011 8:23:26 PM

Gay Marriage is not = race.

We social conservatives need to form our own universities where 2 sides of a debate are welcome.

Posted by: red | Apr 25, 2011 8:09:50 PM

Not buying it. Bill Clinton signed DOMA. Barack still professes to oppose gay marriage. Anyone think foe a second these fine scholars would pitch a fit about either of them speaking?

No Republicans Need Apply. That's the issue. They give the game away early in the letter.

Posted by: Leo | Apr 25, 2011 8:08:35 PM

"I don't think it's particularly unprincipled to have a baseline view of acceptable ideas of justice and then object to honoring people who hold views one thinks violates that sense of justice."

But two can play that game. Those that oppose same sex-marriage believe that support for it places ones views beyond the pale, and that the proponents of same sex-marriage are engaged in anti-scientific, nonsensical self-deceit that is destructive not only to society generally but to those that buy into it particularly. They believe that LGBT rights are a sham that makes no one happy, least of all those that suffer from gender identity crises (unrelated to actual genetic disorders) or from sexual confusion. They believe that the entire other side of the argument is literally stark raving mad and in desperate need of psychiatric help that is being denied to them on the basis of shoddy biased science.

So, if it stands to reason that a person with conservative views on this position can be objected to, then certainly a person with liberal views on this issue can be objected to on the grounds that all right thinking people find his views beyond the pale.

Just because an idea is new doesn't mean that its certain to come to acceptance. Many other ideas which in their day seemed new and scientific (eugenics, for example) now seem utterly reprehensible to us. It's not at all accepted that this is progress.

Posted by: celebrim | Apr 25, 2011 7:47:17 PM

So, some students and their defenders want to enforce a policy that would bar all orthodox Christian from speaking. And--get this--they say that they refusing to adopt their position is bigotry. Well, there's innovation, and then there's innovation.

Orin, you are right that there was considerable controversy about Notre Dame's actions. Note, however, that Notre Dame, unlike Michigan, is an explicitly religious institution.

Posted by: Thomas | Apr 25, 2011 7:25:26 PM


In the past 20 years, the University of Michigan has had exactly 4 -- FOUR -- Republican commencement speakers:
- 1991: President George H.W. Bush
- 1993: Michigan Gov. John Engler
- 1996: U.S. Supreme Court Justice Sandra Day O'Connor
- 2003: U.S. Ambassador to Greece Thomas Miller

Compare that to the number of Democrats and left-wing activists.

The University of Michigan seems to have a diversity problem.

Posted by: Jeff | Apr 25, 2011 6:55:46 PM

So, what's next? Banishing speakers from universities because they don't support pedophelia? Seriously, at what point does society say "enough" when dealing with (what I consider, deviant) alternate lifestyles.

While I'm not suggesting that we go back to the days of arresting homosexuals; I as a social conservative do not agree at all that unconditional support for the gay agenda should be the default position of any public university.

Why should my tax money go to support a public university that would so flagrantly take sides in a contentious societal issue?

Posted by: anon | Apr 25, 2011 6:54:27 PM

Dave, I agree the problem is hard, and I tentatively agree that the right resolution should be independent of--or at least not completely dependent on--majoritarian preference as such. But it also clearly should not be "I think it should be so, and so it must be." So if you have some other way of determining the meta-principle, I am all ears.

I'm still not sure what you mean by your second point, except that Portman's position on gay rights could be understood as a personal insult to the gay members of the audience, whereas his votes on tree-cutting would not be because there are no trees in the audience. But my problem with that again is both meta (why a "personal insult" principle), and more importantly practical. Lots of political arguments can be framed as saying that it degrades or insults members of the audience. The easiest example is those who say that being anti-abortion insults female audience members by reducing them to second-class citizens or even modern slaves.

Posted by: TJ | Apr 25, 2011 1:13:19 AM


I thought your argument was that constitutional law was relevant to what categories we think are within the realm of debate. Perhaps I misunderstood you.

Posted by: Orin Kerr | Apr 24, 2011 11:59:08 PM

I think TJ's points respond to slightly different ones than the points I sought to make in my last post. My first point sought to respond to an argument that (as I understood it) an issue that appears socially intractable necessarily cannot be resolved in any way other than by reference to majoritarian trends and democratic process. My sense is that this is a cop-out, and that it ignores possible ethical frameworks that can resolve these issues. I realize this presumes that there is some notion of morality that operates independently from majority opinion, but I think this is true, and indeed that it describes the domain of (substantive, though perhaps not structural) constitutional law.

I recognize that these are hard questions to answer, and that it may be challenging to reach consensus about them through public discourse, but that the questions are hard doesn't strike me as sufficient reason to sideline them and/or substitute majority opinion for moral reasoning.

My second point was not meant to relate to the constitutional status of gay rights issues (or whether an issue is "beyond the pale," whatever that means), though. Rather, I was proposing a way to differentiate Portman's position on gay rights issues from other policy positions that a congressman might take. The status implications of this position for gay members of the audience may or may not render the issue a constitutional one, but I think it does raise different expressive harms than, say, the senator's opinion on foreign aid. And to reiterate, the issue is about expressive harm not the semantics of the term "civil rights".

Orin, I'm not sure how my post suggests that the constitutional status of a doctrine determines the outcome (and I'm not down with this "beyond the pale" phrasing--it doesn't seem to capture the expressive-harm argument I'm making, and I'm not really sure what it means). If anything, the opposite seems to be true in this case--gay marriage bans are the law in most states, and the SCt hasn't held gay people to be a suspect class (but cf. elements of Lawrence v. TX), so if anything Portman has law on his side.

Posted by: Dave | Apr 24, 2011 11:16:21 PM

About a month ago, I went to the Holocaust Memorial Museum in Washington. Even though it is only about 40 miles down the road from where I live, I had long resisted a visit there because I thought that message the Museum sought to impart was one of particularity, not universality. Sadly, the visit confirmed my preconceptions.

At the time, there was a special presentation on the propaganda of the Nazis. Outside, in the real world, there was a similar propaganda campaign ongoing conducted by Fox and its fellow-travelers on the right directed against Muslims. While I believe that, for the most part, the talking heads who toe the anti-Muslim line are not equivalent to Nazis, it is clear that they are appealing to ethnic and religious prejudice to advance their own political agenda. The appeal of the right to (let's call them by their correct name) bigots in opposing rights to GLBT individuals is cut from the same cloth.

Some parts of my analysis here are problematic. For instance, the ideas of Peter Singer concerning the rights of animals have clearly not achieved mainstream acceptance. For that reason, among others, I would not limit granting honorary degrees to vegans. And, I recognize that one could, in some non-bigoted fashion, oppose single gender marriage. All that said, however, I think that, at this point in time, we can see that while some of the opponents to the rights of gay and lesbian citizens are not bigots, the "mainstream" of the anti-GLBT rights movement is lead by those who are bigots. Seen in that light, Portman is, at the least, a fellow-traveler of bigots and should not be rewarded by the university.

Posted by: Stuart Levine | Apr 24, 2011 10:54:10 PM

Rob Portman have served in so many high positions in American public service that if someone of his stature cannot give a graduation speech, there is no point to having graduation speeches. Or, for that matter, just book Snooki for all of them.

Posted by: Praetor | Apr 24, 2011 5:54:06 PM

Dave, I don't follow why what gets 5 votes on the Supreme Court is relevant to your argument. Consider an example. According to the Supreme Court, it is beyond the pale of the democratic process to allow reporters to accompany the police when they execute a warrant. See Wilson v. Layne. But if a commencement speaker admitted that he favored allowing reporters to accompany the police while executing warrants, we probably wouldn't protest him in the ground that he favored a position that we had ruled beyond the pale of the democratic process. Indeed, I suspect we would all say the Supreme Courts ruling is irrelevant: Surely different people of good faith can disagree the policy merits of the question. I suspect we would say that when the Supreme Court rules, even unanimously, "we" as a polity have made no decision at all.

Posted by: Orin Kerr | Apr 24, 2011 3:53:59 PM

Reading Dave's post more carefully, I think that his second point was intended to be slightly different from what I was refuting. If I now understand correctly, Dave's argument is that Portman would be delivering a personal insult to some of the audience, in that some of the audience would be gay and Portman is denying them what they regard as a civil right.

Two objections to this principle. First, where does it come from? How did we select this principle as the method to determine whether something is beyond the pale? It all comes down to one's prior ideologically motivated theory of constitutional meaning. The meta-selection problem seems intractable to me.

Second, on a more practical level, I see this principle as just leading to a reframing of every political debate as about civil rights of members of the audience. For example, an anti-abortion speaker can also be framed as denying women their "civil rights". A pro-gay-marriage speaker as denying religious conservatives their "civil right" to free exercise of religion. An anti-environmental speaker as denying members of the audience who live in coastal cities (the first to be flooded) their "civil right" to life, or at least to the choice of place to live. Presumably the audience will contain every member of those sub-groups, too.

Posted by: TJ | Apr 24, 2011 3:43:35 PM


I think your comment reaches the heart of the matter: how do we determine the "issues that we regard as beyond the purview of democratic processes." I agree the category exists (the KKK in my example, pro-genocide in yours). But I cannot glibly just assume that whenever my political preferences are strong enough to label something "fundamental" (to my own eyes), that would be enough.

You can say that the constitution makes that determination, but then you need a prior theory of constitutional interpretation, and 90% of the time that theory reduces down to something like "if I feel very strongly about it, gee whiz guess what, the constitution sides with me." You have adopted a constitutional theory that puts gay rights in that protected category. Other people have not.

And saying that denial of gay rights is a "deeply personal expression" does not cut it. There is nothing easier than to make political disagreement "deeply personal." You say that a vote against the environment would be merely policy disagreement, presumably because you are not really that committed to the environment relative to other things you more passionately care about. A committed environmentalist would say that Portman commits the equivalent of genocide by causing future disasters that will kill more people than Hitler ever did. If all that is required is the aggrieved side being so aggrieved that they will label the speaker the moral equivalent of Hitler or the KKK, then every objecting group can and will instantly become outraged to that degree.

Posted by: TJ | Apr 24, 2011 3:24:11 PM

Howard: to the extent that the issue is that counter-speech is a good remedy, then yes we agree, and that's cool. But a theme of this thread, and I think also the original post, is that GLBT students' objection to Portman can't be differentiated from other objections that one might have to any speaker's political opinions. Here's why I don't buy it:

First, this claim relies on the reductionist approach illustrated by TJ's post, that goes something like this: "Well, all laws create distinctions, and people always disagree about what those distinctions should be, and who's to say what's right and wrong in this crazy world, so let's just let democratic process sort it all out." What this characterization elides is the distinction between the kinds of issues that we're willing to let democratic process resolve, and other issues that we regard as beyond the purview of democratic processes. It's an easy claim that we agree the latter category exists. If the majority of voters was pro-genocide, we'd presumably agree that majoritarianism doesn't justify going along with that preference. We might even say that the point of constitutional law, and much of the Constitution itself, is to place these issues beyond the purview of majoritarian preferences. Whether you think gay marriage is in this category is debatable, but addressing the issue merely with an offhand gesture at democratic process can't resolve it.

Second, I think there's a plausible distinction between Portman's anti-gay rights votes and other positions he might have taken that people might object to. Consider, by contrast, a hypothetical vote by Portman against pro-environment legislation. One can imagine pro-environment students feeling aggrieved at the choice of speaker, and possibly even leaving. And I'd agree that this dispute falls into the category of a mere policy disagreement. What is different about Portman's votes about gay rights is that they express the view that gay people should have fewer civil rights than non-gay people, and this is a deeply personal expression of exclusion and subordination that applies to many people in the audience. Hence I think it's mistaken to simply sweep all votes together as "policy disagreements" without taking account of the expressive implications that supporting some such disagreements may have.

Posted by: Dave | Apr 24, 2011 2:04:10 PM

Two years ago, there were protests at Notre Dame when President Obama was awarded an honorary degree. In the view of the protesters, it was beyond the pale to celebrate and honor a person who believes in abortion and stem-cell funding. Obama's honorary degree had nothing to do with his position on abortion or stem cell funding, but some in the community saw Obama's positions as so beyond the pale that it didn't matter.

See, e.g., http://www.foxnews.com/politics/2009/05/17/obama-receives-honorary-degree-notre-dame-protests-build/

The lesson, I think, is that each community can develop its own sense of what is "beyond the pale" and what is "acceptable." And at the same time, the broader world is free to judge that particular community as outside the mainstream for the positions it adopts.

Posted by: Orin Kerr | Apr 24, 2011 1:24:03 AM

Dave: As to your second point: Again, we agree on counter-speech as the appropriate action. And frankly, that gets us around the issue of whether, as TJ notes, discrimination against gays is different than support/opposition to abortion or support/opposition to immigration. Anyone should be free to respond to any speaker with "respectful but forceful counter-speech."

The problem, and what prompted my original post, was that the first move by many was to petition Caminker to withdraw the invitation. And that is what was being reported. So at least some people do start from the premise that some are not qualified.

Posted by: Howard Wasserman | Apr 23, 2011 10:34:27 PM

Howard, I think you are far too quick to surrender on this one. I think Frank Cross has it right when he said that the issue is intractable. On the one hand, everyone agrees that people who have "mainstream" views (e.g. a generic Republican) should be allowed to be graduation speakers, some disagreement in the audience with those views notwithstanding. On the other, everyone agrees that people with beyond-the-pale views (e.g. the KKK) should not. The problem is that we have no agreement on what views are mainstream or how to determine it. And it does not work to just say that gay-rights is a matter of "discrimination", as Dave does. Every law discriminates. A law that allows abortion discriminates against aborted fetuses. A law that forbids abortion discriminates against pregnant women who want to get an abortion. The question is whether the discrimination is unjustified -- and that goes back to one's ideological priors.

Blueoutlaw -- I like your argument, but I don't agree with it. If you say that Portman cannot be compartmentalized -- that his very presence and his known views on homosexuality becomes "disrespect" and that must disqualify him, even if he makes no mention of those views in the actual speech, then on any polarizing issue this puts the university in an impossible position. Say we have a school that polarized on some political issue. 50% of the student body think that abortion is murder, so that anyone who is pro-choice has blood on his/her hands. The other 50% think that forbidding abortion is akin to putting women in slavery, so that anyone who is pro-life is a modern day segregationist. Who exactly is the school supposed to invite that would not "disrespect" one part of the student body?

Posted by: TJ | Apr 23, 2011 8:50:18 PM

Yeah, Howard, you may have lost me on this one. But as you point out, much of America is with Portman, so I'm not as sure about the country.

First off, it may have been more my view than yours that the Wash U resistance to Schlafly was objectionable because disingenuous. I think it's gutless to mask a substantive objection as a procedural one, and at least the Michigan opposition to Portman is honest.

Second, it's true that most Republicans have signed off on the anti-gay agenda, but I don't see why that changes anything if there is real moral opposition to their opinion on the gay marriage and adoption issues. If anything, the important implication of this fact is not that we should be concerned about political balance in graduation speakers, but that we should be really shocked at how much approbation anti-gay discrimination enjoys in a country nominally committed to equality. But I don't think this makes Republicans (or anyone who's signed off on these laws) "unfit to be ... graduation speakers." I think it means that when they're brought to speak, people--esp those of us who don't have a dog in the gay-rights fight but still believe in the cause--should make their opposition known through respectful but forceful counter-speech.

Third, I think you're right that Portman would say he is respecting LGBT students despite his position on their civil rights (I have many friends and relatives who make this claim), but I dispute entirely that this assertion is coherent. On the substance, the issue here is worse than just opposition to marriage equality. At least there, civil unions provide a plausible alternative, but Portman apparently also thinks that LGBT people should be barred from _adopting children_.

If a public figure said "I think Jews (or blacks, etc.) are great, and I respect them, but I think their relationships should not be held in any dignity by the state, and I think they should also be considered unfit parents as a matter of law," and then backed up this opinion with legislative votes, I think we'd all regard this as appalling and odious hypocrisy. I can't see why it's meaningfully different with respect to LGBT people. How can we reconcile the assertion of having respect for a group with support for policies that render that group's members second-class citizens?

Finally, I can't get with this notion that because Portman's featured issue is not gay rights, this somehow diminishes his ethical accountability for his votes against those rights. He's not just a citizen who happens to have a given opinion and holds that opinion privately; he's a federal legislator and representative of millions of citizens, and he's on record as throwing his support behind the idea that gay people should be legally barred from marrying or adopting. He may have done this just to be part of the hardline Republican caucus rather than as a matter of personal belief, but then he's a moral coward, which is hardly better. And regardless, as long as he's publicly supported anti-gay policies, he has to be held accountable for those positions, especially when he could simply have abstained from those votes in the interest of political expediency.

Posted by: Dave | Apr 23, 2011 8:34:10 PM

To paraphrase LBJ, if I've lost Dave Fagundes, I've lost America--and I need to rethink my position. Although I still am not sure I have a position on this, other than agreeing with Dave that those who disagree should engage in some form of counter-speech. Note, though, that my problem with the Schlafly brouhaha was not that the stated objections were disingenuous; it was that once we got down to the real objections, they flew in the face of academic freedom. In other words, Schlafly and this situation become the same (accepting, arguendo, that speaker and degree recipient are equivalent).

If the idea is that opposition to marriage equality (or let us say "family equality" to also cover the adoption issue) disqualifies someone from being a graduation speaker, then every likely GOP presidential nominee, the majority of the U.S. Congress, most (maybe every, not sure) GOP governor, and the majority of most state legislatures are unacceptable as graduation speakers. It is not as if Portman is unique or somehow an outlier (as Schlafly arguably was); if he is not an acceptable speaker, then neither are literally hundreds of elected and public officials. I find the anti-equality position utterly odious, but I am not quite ready to say holding or advocating the position means you are not fit to give a graduation speech. This is what I mean about the issues being contested--not that the contested nature affects the normative result (it shouldn't), but that it affects the public dialogue.

I do not share the conception of academic freedom under which someone should be welcome to speak on his objectionable views, but not welcome to speak on something entirely unrelated because he holds those other objectionable views. If we take seriously the concept of freedom of thought that necessarily underlie freedom of expression, then excluding someone from speaking about Y because he holds view X still limits intellectual freedom. Actually, it is somewhat ironic that Portman has become the focus of such controversy, since he is more about economic policy than social conservatism--while he opposes marriage equality, he has not made those his signature electoral or policy issues.

My guess is that, if asked, Portman would say he can honor all of the graduates. He wishes all the graduates--including LGBT graudates--the best, hopes they all will do great things, respect the law, fight for what they believe in (even if he disagrees with that belief), etc., etc. He would say he does respect them as people and as future lawyers. You might say things cannot be so compartmentalized and he cannot respect them as people while also opposing the right to marry, adopt, etc. But he believes he can perform the ceremonial function he has been asked to perform and those who disagree can and should make that view known.

Oh, and, BlueOutlaw: Congratulations. I hope you and your classmates find the best way to get your ideas across.

Posted by: Howard Wasserman | Apr 23, 2011 7:21:44 PM

I must disagree with your claim that a graduation speaker necessarily plays the same role as the recipient of an honorary degree. A commencement ceremony is special - it is designed to honor the work of the many students who have endured the intractable hell that is law school, and to celebrate their accomplishments. The recipient of an honorary degree, on the other hand, is receiving recognition for their work. Arguments for intellectual and academic freedom are more pertinent to this latter case than to the former.

Regardless of his reasons for them(and I find religious conviction to be an unconvincing justification for any sort of bigotry or misogyny), Portman's votes on the amendment and the adoption ban would have written discrimination on the basis of sexual orientation into the law. It is one thing to oppose gay marriage on principle, but it is quite another to support measures that would perpetuate further discrimination.

Were Portman being asked to speak, and to give his views on these issues, notions of academic and intellectual freedom would be pertinent. However, that is not the designated purpose of this forum and ceremony. The purpose, as mentioned above, is to celebrate the work of the students and to honor them. Portman's votes in favor of discrimination make clear that he does not view some of the students that will be honored as equal to the others, and he has worked to ensure that they are treated unequally by explicit legal command.

Therefore, Mr. Wasserman, you fail to address the objection that the MLaw students are making (I am one of them). Portman is inappropriate because he cannot perform the function that he has been designated in this ceremony - he cannot honor all of the students that are graduating - because he does not respect the LGBTQ graduates. Including him in the ceremony is unacceptable because it makes the ceremony inadequate to its purpose for a specific group of graduates.

Posted by: BlueOutlaw | Apr 23, 2011 1:42:35 PM


I was with you on the Schlafly issue, because I agreed in that case that the claim in that case (that the objections to her had nothing to do with her substantive positions) were disingenuous.

But where, as here, the objection to the speaker is couched in honest terms, then the issue strikes me as different. In terms of the substance, I'm with the other commenters in this thread. I'm willing to defer to majoritarian political opinion on policy issues like defense spending or economic policy, so that if the government goes one way and I disagree, then it's my duty as someone who respects democratic process to accept that.

But where the issue is whether U.S. citizens are being denied civil rights on the basis of some group characteristic like sexual orientation, that strikes me as a different issue entirely. And I think "beyond the pale" understates the import of this issue. It's not just that this is a disagreement that is off the table of public discussion because we've agreed on it; it's that discrimination is pernicious and irrational in a way that other policy choices are not. This is a difference of kind, not just of degree or historical happenstance.

Of course, the ultimate issue is what to do about this. And on that front, I think the answer has to be: more, not less, speech. If the students really do feel this strongly about their objections to Portman, let them be heard by organizing a walk-out, so that the senator is left speaking to a miserably sparse crowd. It's kind of a shame that this has to happen--people look forward to graduation and it might ruin people's well-earned memories of it to have the event become divisive as opposed to celebratory. But on the other hand, being a lawyer should mean having a strong moral compass, so in a different sense, being part of a speaker protest at commencement may make the event more meaningful and memorable.

Posted by: Dave | Apr 23, 2011 1:41:30 PM

The fact that the speaker is going to talk about something different is irrelevant. I read your post as agreeing that an outright bigot would rightly be denied a spot on the podium (I understood your statement about bigotry in the sense that "simple bigotry [is] an illegitimate position that should not be given the elevated platform of a graduation speech."). Even if this wasn't your meaning, I'd be surprised to hear you say that, regardless of how bigoted a speaker might be, he should still be invited so long as he doesn't mention any of his bigoted ideas.

My argument about the anti-discrimination policy is intended to show how that the school would view someone who disagreed with the principles underlying its policy as bigoted, and therefore, on the above line of argument, shouldn't be allowed to speak at graduation. Unless otherwise indicated, it would seem odd to me that they would have an anti-discrimination policy comprised exclusively of "beyond the pale to argue with" categories, except for the category of discrimination on the basis of sexual orientation. My conclusion is that the school views all the categories included in its policy as beyond the pale, with the implication that it views disagreement with any of those categories (by which I mean a belief that a particular category is a legitimate reason to bar someone from marrying, holding employment, attending the school, or whatever category you want to insert) as unreasonable, a concept that is interchangeable with the word bigoted for our purposes.

Posted by: Anon | Apr 22, 2011 5:04:11 PM

I fully support the students if they want to protest Portman by turning their backs, walking out, holding signs, etc.--exactly what some students did at Wash U. in 2008 and exactly what Dean Caminker has urged students to do here. The issue is whether Portman should be invited to speak.

Anon: I think your argument puts a lot of weight onto the antidiscrimination policy. It reflects a view--but does it also mean (necessarily) that disagreement with that view is unreasonable? Or is the university's simply one view and the school is willing (as academic institutions should) to engage with competing views. Especially where, as here, Portman is not going to be speaking about LGBT issues (presumably), so the school is not even engaging on those issues of controversy or providing a forum for competing views. The issue is whether to invite someone who *holds* competing views, even if he is going to talk about something completely different and unrelated--in fact, he probably will talk about something that the school believes in and agrees with.

Posted by: Howard Wasserman | Apr 22, 2011 4:39:37 PM

"But that seems to mean, ultimately, that, for these students and many others, even mainstream social-conservative views on questions that still are being contested have no place in a position of honor in the academy...."

Wasserman's disapproval of the student protest hinges on this point--that the question of whether GLBT citizens should have equal rights is "being contested." This is a very dour view of the academy. It suggests that neither students nor faculty should take hard stances on issues so long as those stances remain controversial--no matter the fairness of the controversy. If this is the case, then our intellectuals must wait for the news outlets to tell them when it is safe to honor or dishonor any view.

If Wasserman is not being cynical, then he is being opportunistic. Apparently the university is allowed to set a "baseline," declaring its stance on opinions that are beyond the pale, but it cannot act as if it really believes in that baseline. In the name of intellectual diversity, the university isn't allowed to to act on its convictions. It can say what it needs to say to its constituencies so long as it does not offend.

Posted by: Oh, FIU? That makes sense. | Apr 22, 2011 4:12:06 PM

Maybe baseline isn't a strong enough word for what the anti-discrimination policy represents. Every other characteristic in the policy (veteran status, religion, etc.) seems to be of the "beyond the pale" sort, so that it would be unreasonable to discriminate against an individual holding that characteristic specifically because he held that characteristic (the statement "veterans shouldn't be allowed to get married," for example, would be beyond the pale). But the policy doesn't make any distinction between the categories, so why should we conclude that the university views discrimination on the basis of sexual orientation as less than beyond the pale? Half of society may say otherwise, but the policy doesn't seem to.

I don't buy the argument that invitation equals endorsement, but I do think that, if the school buys its own anti-discrimination policy, and if that policy represents positions the school thinks it is unreasonable to disagree with, then the school shouldn't be engaging commencement speakers who disagree with those views.

Posted by: Anon | Apr 22, 2011 3:37:06 PM

"...questions that still are being contested"

So, it's fine to have a white segregationist speaker as long as some Americans are contesting whether racial minorities are fellow citizens who deserve equal rights?

Yes, let's let popular viewpoints determine whether it is appropriate to request that GLBT people should have the same civil rights as fellow citizens.

Posted by: rolling my eyes | Apr 22, 2011 3:31:42 PM

Isn't it a pretty intractable problem? Depends on seeing the future. I think a university could with pride have refused a hearing to a segregationist back in the day, even though that view was not so out of the mainstream at the time. So, are gay rights issues similar to that? I'd want to know the details of his views. If he's against gay marriage but for civil unions, that doesn't seem so bad to me. But other views might be.

Posted by: frankcross | Apr 22, 2011 3:27:50 PM

Yes, some ideas eventually move outside the mainstream. But, unfortunately, I really doubt we are there on LGBT rights, when the country is approximately evenly divided on most of these issues and legislatures are still debating them regularly. Similarly, the university having an anti-discrimination policy merely establishes a baseline viewpoint of what the university believes is the "correct" viewpoint. That does not necessarily mean 1) that other viewpoints are beyond the pale or 2) that the university cannot invite someone it (as an institution) disagrees with or 3) that in inviting him it is endorsing his viewpoints.

Posted by: Howard Wasserman | Apr 22, 2011 12:52:27 PM

We might also say that, since the university has a policy against discrimination on the basis of sexual orientation, it has taken a stance on the issue, and has provided our baseline viewpoint in this case.

Posted by: Anon | Apr 22, 2011 12:29:44 PM

"But that seems to mean, ultimately, that, for these students and many others, even mainstream social-conservative views on questions that still are being contested have no place in a position of honor in the academy."

Well, yes. But this doesn't strike me as a unique phenomenon. Often ideas that were once mainstream have fallen by the wayside as outdated and even reprehensible (areas of gender, race relations, etc.).

If someone has concluded that a gay person is of equal dignity to a straight person in all respects, then it makes sense to find abhorrent views that discriminate against gay people on the basis of their sexual orientation, even if those views are rooted in a mainstream Christian tradition.

I don't think it's particularly unprincipled to have a baseline view of acceptable ideas of justice and then object to honoring people who hold views one thinks violates that sense of justice.

Posted by: kormal | Apr 22, 2011 10:01:33 AM

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