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Boycott of AALS Meeting in San Diego:

[UPDATE Tuesday evening: As I noted in the comments below, I agree with other commentators that the AALS, as a scholarly organization representing institutions and individuals with diverse viewpoints, should not participate in any boycott based on someone's political views. And, to the extent the boycotters are acting through purported scholarly organizations such as the Legal Writing Institute, those organizations should revisit the issue and recognize that they are not political bodies and have no business advocating politically motivated boycotts. The caveat is that if enough faculty will boycott the conference on their own initiative to ruin it, that would be an ideologically neutral reason for the AALS to change its plans--not because it institutionally cares about Manchester's political views, but because it cares about running a successful conference.]

Some law professor organizations have announced they will boycott the annual law professors conference to be held in San Diego in January because the owner of one of the hotels, Doug Manchester, donated $125,000 to to support an initiative banning same-sex marriage in California.

I have a few thoughts, avoiding the obvious issue as to whether an owner's donating money to a lawful cause with which one disagrees should be deemed a sufficient reason to boycott a business, and if so, under what circumstances. (Feel free to comment on that issue below, however.)

First, I wonder if the boycotters have investigated the AALS's contract with the hotel. I assume that when it comes to a huge event like this one, the AALS would have to pay a large penalty to the hotel if it were to move the conference at this date. Would the boycotters want the hotel owner to get a lot of the AALS's money without giving anything in return?

Second, boycotts like this always seem a little odd to me, because they seem to operate on the principle that commercial transactions only benefit the "seller." So, if I don't want Mr. Manchester benefiting from my money, I won't stay at his hotel. Yet, basic economics tells us that the buyer also receives a "surplus" from the transaction, often larger than what the seller gets. Put another way, shouldn't same-sex marriage advocates take satisfaction in the idea that Mr. Manchester will be providing services to his political opponents for significantly less than the value of those services to them (the actual price, plus the consumer surplus?). Given the ideological makeup and interests of law professors, this will be like a Pat Buchanan-owned hotel hosting the annual AIPAC conference!

A counter-argument, I suppose, is that AALS members could probably get almost as much consumer surplus at another hotel, while depriving Mr. Manchester of his profits [of course, with sufficient notice, the hotel could probably rent the rooms out for almost as much as its getting from the AALS]. But that where my first point comes in again; it will actually be costly to the AALS but not necessarily Mr. Manchester, to boycott the hotel at this point. That said, the AALS has put itself in an awkward position by moving a previous conference from San Francisco due to an ongoing union labor dispute. The organization will now have to explain why supporting labor unions is more important than supporting same-sex marriage.

The Legal Writing Institute, among others, appears to be taking the position that holding the conference at the planned hotel would violate their nondiscrimination policy. I don't quite get this; there does not appear to be any evidence that the hotel, as a business, discriminates in any way against gay clients.

Finally, as an interesting side note, there are a few jurisdictions in the United States that ban discrimination against people based on political affiliation, a category that is likely broad enough to encompass this boycott. Indeed, I know of organizations in DC that won't publicly advertise office space available in their buildings, because D.C.'s law could require them to rent to an organization whose view they found abhorrent. (The Heritage Foundation hardly wants NARAL ads going out with a "Heritage Foundation Building" return address.) Boycotters obviously should have the right to boycott, and laws banning discrimination based on politics should be deemed unconstitutional. Thanks to TaxProf for the pointer.

UPDATE: Apparently, a local labor union is co-organizing the boycott. While the union's leader claims that the union is very concerned about the gay marriage issue, I suspect that the fact that the hotel is not "organized," has more to do with the union's interest.

FURTHER UPDATE: Larry Ribstein has a few questions for the boycotters:

* What if Mr. Manchester didn't contribute money to oppose same sex marriage cause, but supported it vocally? Of course contributions are a form of expression. Would or should these groups make a distinction between contributions and other expression of belief? * What if Mr. Manchester were only a majority shareholder? A minority shareholder? Vice president? CFO? Since the protest here isn't over the hotel's policies, control would seem to be irrelevant. What if he had only invested a lot of his money in the holding company of the hotel? The franchisor? * Why just the hotel? Why not the restaurant owner? The food supplier to the hotel? Or any of their shareholders? * Who exactly would the boycott be hurting? I assume that Mr. Manchester has some kind of contract with the AALS. But what about his workers, many of whom depend on tips? Come to think of it, what if hotel workers or one of its unions had expressed homophobic or anti-same-sex marriage views? * How would the boycotters feel about teaching students who opposed same sex marriage? (I note that the chair of one of the boycotting groups heads the legal writing program at a Catholic law school). * If you were a student, would you feel comfortable expressing an anti-same-sex marriage view if you knew that the teacher couldn't stand to stay at a hotel owned by somebody who opposed same sex marriage?

tdsj:
I plan on boycotting because everyone I know who has every attended AALS has hated it.

OTOH... a free trip to San Diego in January isn't too bad.
8.5.2008 5:12pm
Cornellian (mail):
The hotel owner does what he wants with his money and his customers do what they want with their money.

I hope they can find another SoCal venue - giving up San Diego in January for Minneapolis or Chicago in January would be cruel and unusual punishment.
8.5.2008 5:20pm
dWj (mail) (www):
Tom Schelling defines a "threat" as a warning that one is willing to take an action to hurt another even at a cost to oneself. Clearly this is what a "threat" to boycott constitutes, and it may be reasonable either if it can result in pressure of some sort of greater value than that given up or if there is something these folks simply enjoy about causing this fellow harm.

I expect I would be willing to boycott some sort of proprietorship under grounds as you describe them, though I would place a higher threshold before I would support an organization of which I am a member engaging corporately in such a boycott if the reason for the boycott were not strictly relevant to the purpose of the organization. It seems entirely reasonable to me for these organizations to adopt anti-discriminatory measures as bylaws for their own conduct, and yet this boycott seems to me to involve their becoming politicized to an extra degree in a way that I, at least, would find embarrassing for a mostly professional organization.
8.5.2008 5:25pm
NYer:
Even speaking as a strong same-sex marriage proponent, this seems a little crazy. Perhaps if AALS had donated money, as a group, to an initiative banning same-sex marriage, I could understand - but this seems too attenuated for this level of overreaction. How on earth is donating money to a cause to be voted on in November a violation of a discrimination policy? It isn't exactly the same, but wouldn't the same problem arise, for example, if a school gave an anti-gay marriage student a scholarship, who then used surplus money to support Proposition 8?
8.5.2008 5:28pm
Alan Childress (mail) (www):
Over at a thread started by Andy Perlman at Legal Ethics Forum, some of us are suggesting that a more effective and satisfying protest would be for some nice couple to have their wedding at the Hyatt then. John Steele suggests it would be more interesting than most panels.

You have to like, though, that the Feminist Law Profs are also calling it a girlcott.
8.5.2008 5:28pm
Thomass (mail):
Actually, this makes no sense. How is this person or his business discriminating? Sounds more like a thought crime than actually violating this policy… which probably means the hotel does not violate their group's rules….
8.5.2008 5:41pm
Publicus (mail):
I wonder how much value resides in creating the opportunity for discussion regarding this proposed boycott. You could probably draw a few bloggers into writing about it.
8.5.2008 5:50pm
erics (mail):
I sure hope none of these profs work at public universities in a state that has constitutionally banned same sex marriage.
8.5.2008 5:55pm
A.C.:
If you can deliberately steer businesses towards people whose success you want to encourage (women, minorities, or whatever), I guess you should be allowed to steer business away from people whose success you want to discourage. But at some level I think this particular example is silly. Although I support gay marriage, I don't think that a businessman who opposes it (but otherwise treats gay people well) is a Threat to the Republic. I'd feel quite differently if he had given the money to the KKK or Hamas.
8.5.2008 5:55pm
Anderson (mail):
Everyone should attend, but cross-dress.
8.5.2008 5:56pm
Mike& (mail):
How on earth is donating money to a cause to be voted on in November a violation of a discrimination policy?

This isn't hard to figure out. The hotel makes a profit. It uses these profits to fund anti-gay measures. If AALS uses the hotel, it will give a profit to the hotel. Without profits, the hotel owner can't fund anti-gay measures.

Yet, basic economics tells us that the buyer also receives a "surplus" from the transaction, often larger than what the seller gets.

A simple thought experiment shows why this is misguided.

If no one used the hotel, what would happen to it? It would go out of business. And thus the owner would not have the hotel's profits available to fund any anti-gay measures.

Even if the hotel operated at a loss, patronizing the hotel would provide operating revenue. Here's why that's a bad idea:

Hotels have overhead. They must meet overhead costs or else they not remain in business. Even if a hotel is not able to make a profit on a transaction, they still need money to remain in business. If the hotel does not have any money, they will not be able to pay staff, pay its water or utility bill, or pay for repairs.

Let's say the hotel has to meet $50,000 in overhead for January. In theory, the AALS could provide the hotel $45,000 in revenue. In other words, the hotel would serve AALS at a loss.

Yes, AALS has a nice consumer surplus. But wouldn't the hotel owner's life be made much more difficult if he did not have any guests, and thus he did not have the revenue needed to meet overhead? Maybe the boycott would mean that the hotel would need to borrow money (pay interest, thus cutting into his profits) to remain afloat. But maybe the hotel is already too leveraged, and thus without the revenue from AALS will go out of business.

Now, it could be that he hotel will be able to obtain revenue with or without AALS. In which case, yes, it would make more sense for AALS to reap as huge of a surplus as possible, as a way to stick it to the man.

The AALS should then take the consumer surplus (in this example, $5,000) and make a donation, in the hotel's name, to a pro-gay rights organization. :)

In any event, I get the idea of what you're saying. But it is a lot more complicated than you make it seem. It's so complicated, in fact, that I don't know if AALS can even make a rational decision. How do they know if they are getting consumer surplus - and if so, how much? How do they know if the hotel will simply rent its rooms to other guests? If, as you say, there is a fee, and if the hotel is able to rent the rooms out anyway, the AALS has actually provided more money for anti-gay measures!

On the flip side: This symbolic gesture might lead to free PR. This PR will show that the hotel is owned by an anti-gay bigot. The AALS, rather than pay for advertising, will have the media come to them to hear its story about the hotel boycott. If the AALS's goal is to punish the hotel owner for being a bigot, and if the value of the free PR exceeds the penalty, then AALS would be smart to pay the penalty by terminating its contract with the hotel!
8.5.2008 6:01pm
David M. Nieporent (www):
One of the common arguments with respect to campaign finance is that, even if banning contributions isn't appropriate in a given situation, disclosure is important. But this does demonstrate why disclosure isn't an unalloyed good. Forcing people to publicly identify the positions they take on issues allows other people to retaliate against them for those positions.

Of course, since All Good And Right Thinking People support gay marriage, the AALS I'm sure wouldn't think this is problematic; retaliating against people for Bad positions is okay. But if the shoe were on the other foot, I think they might feel a little uneasy about being forced to state their views on particular issues.
8.5.2008 6:07pm
krs:
Put another way, shouldn't same-sex marriage advocates take satisfaction in the idea that Mr. Manchester will be providing services to his political opponents for significantly less than the value of those services to them (the actual price, plus the consumer surplus?).

I should think the answer is obviously no. Mr. Manchester was a willing seller, and there's no hint that he was desperate or agreed to the price after intense negotiations and now wants to back out but can't. "Haha, I paid you for services" isn't really a satisfying taunt.

Aren't you the same person who criticized people who list their houses at higher prices than the market will bear because they claim to "know" what their houses are "really" worth?
8.5.2008 6:13pm
The General:

This symbolic gesture might lead to free PR. This PR will show that the hotel is owned by an anti-gay bigot.


typical left-wing name calling. when there's no argument, smear.
8.5.2008 6:18pm
ejo:
perhaps they can hold it in San Francisco. the gay community backs open sex acts at public fairs in broad daylight. much more consistent with the ideals of the AALS, I am sure.
8.5.2008 6:19pm
Oren:

Forcing people to publicly identify the positions they take on issues allows other people to retaliate against them for those positions.

Of course, since All Good And Right Thinking People support gay marriage, the AALS I'm sure wouldn't think this is problematic; retaliating against people for Bad positions is okay.

I see no problem with this, nor with opponents of gay marriage refusing to patronize businesses that lend their support in favor of gay marriage. You have to be pretty pessimistic about the power of your ideas to demand this sort of protection.

All told, it's highly unlikely that any significant fraction of hotel-consumers care so deeply about gay marriage to make any real impact on the hotel business.
8.5.2008 6:19pm
wm13:
If discrimination by private actors based on the political views of the victims is appropriate, then what was wrong with the blacklist? Mind you, clear thinking is not what I have come to expect from the AALS.
8.5.2008 6:27pm
Seamus (mail):
This isn't hard to figure out. The hotel makes a profit. It uses these profits to fund anti-gay measures. If AALS uses the hotel, it will give a profit to the hotel. Without profits, the hotel owner can't fund anti-gay measures.

So if I give money to anti-gay measures, all right-thinking people should refuse to hire me, because without wages or a salary, I can't fund anti-gay measures, and anyone who hires me is therefore guilty of indirectly funding them?
8.5.2008 6:29pm
Seamus (mail):
If discrimination by private actors based on the political views of the victims is appropriate, then what was wrong with the blacklist?

Actually, a lot of the opponents of what's generally known as the Hollywood blacklist have no problem with it when it's applied, say, to Lillian Gish for her support of the America First Committee. It's just a matter of whose ox is being gored.
8.5.2008 6:31pm
DavidBernstein (mail):
Put another way, shouldn't same-sex marriage advocates take satisfaction in the idea that Mr. Manchester will be providing services to his political opponents for significantly less than the value of those services to them (the actual price, plus the consumer surplus?).

I should think the answer is obviously no. Mr. Manchester was a willing seller, and there's no hint that he was desperate or agreed to the price after intense negotiations and now wants to back out but can't. "Haha, I paid you for services" isn't really a satisfying taunt.

Learn what "consumer surplus" means, then get back to me. Just because someone is a willing seller, doesn't mean that the buyer is doing well from the deal, too.
8.5.2008 6:32pm
Mike& (mail):
So if I give money to anti-gay measures, all right-thinking people should refuse to hire me

It depends. California's employment discrimination laws protect gays. An employer can be sued if a gay is harassed at work by other employees. So if I were a California employer, I'd not want to hire a bigot who might subject me to an expensive lawsuit.

Similarly, I'd not hire a member of the KKK. I'd also not hire someone who had been convicted of flag burning.
8.5.2008 6:32pm
Bruce Hayden (mail) (www):
This isn't hard to figure out. The hotel makes a profit. It uses these profits to fund anti-gay measures. If AALS uses the hotel, it will give a profit to the hotel. Without profits, the hotel owner can't fund anti-gay measures.
So, instead, AALS pays a penalty for not renting as many rooms as promised, and that money goes to fund the cause, and the hotel is free to resell those rooms at the regular rate, which is presumably at least a little above that the AALS members are to pay.
8.5.2008 6:36pm
torrentprime (mail):
What people are missing is that this time around (compared to the earlier vote on the marriage amendment in CA), businesses and trade groups are being *much* more high profile in their support of same-sex marriage. PGE, AT&T, Wells Fargo, etc. are all getting involved, publicly, making a much stronger stance against Prop 8. It's not so taboo anymore to stand on the side of gay rights, and even discussions such as this show that. Along the "PR" line of thought floated above, law organizations announcing these debates raises awareness of such comon cause, and serves a purpose whether or not a single hotel room is canceled or a convention venue changed.

Also, I thought conservatives are supposed to oppose things like constitutional amendments for the sake of enforcing religious preferences? More principled conservatives said this when the FMA came up; they're quieter and harder to find in years divisible by four.

General: those who want to amend the state constitution to take away the right of same-sex marriage want the state's most important document to a) reflect their personal religious preferences and b) discriminate against those who don't share their values by reserving marriage only for marriages which match their religious concept. Is "bigot" not appropriate?
8.5.2008 6:38pm
Mike& (mail):
So, instead, AALS pays a penalty for not renting as many rooms as promised, and that money goes to fund the cause, and the hotel is free to resell those rooms at the regular rate, which is presumably at least a little above that the AALS members are to pay.

Um, I made the same point. If you want to refute me or something, you'll need to do much better than that. Or did you just not read my whole comment, thinking, "Jackpot!" without realizing I'd done further analysis?

If you read the rest of my comment, you'd see that I dealt with that issue, and showed why it might indeed be rational to pay a penalty.

One more time: If the AALS wants to punish the hotel, it could do the following: Pay a $25,000 penalty. Yes, that's money in the hotel's coffers. But what if the AALS gets $500,000 worth of PR for the cause? I imagine the media will cover the issue.

What if that coverage leads to a widespread boycott? What if the coverage puts the hotel out of business?

Would it have been smart to spend $25,000 to obtain $500,000 worth of PR? I'd sure think so.

But what if it backfires! What if Rush Limbaugh covers the boycott, and thus bigots across the country use the hotel's service, giving the hotel record profits?

There are a lot of "What ifs" (like, "What if" you read my whole comment this time before picking something out of it?). But claiming that the AALS will receive a consumer surplus, or that the hotel will be better off if AALS cancels and pays a penalty, is also speculative.

None of us
have enough information to conclude what is the best thing for AALS to do. None of us know whether the hotel will be better or worse off from "negative" mainstream media attention.

We are all just guessing.
8.5.2008 6:44pm
FantasiaWHT:

I'd also not hire someone who had been convicted of flag burning.


That's really limiting your choices.
8.5.2008 6:46pm
Christopher Cooke (mail):
David

your post betrays some mistaken notions of contract law, but perhaps this is just inexact language on your part. The hotel cannot "penalize" AALS, but may collect damages due to AALS' breach of the contract. It is unclear what those damages are. Also, before you can say "liquidated damages" such clauses are enforceable only if they are a reasonable approximation of actual damages and such actual damages are difficult to ascertain.

Also, I don't follow your economics argument. Mr. Manchester would obviously like to rent out his hotel. Boycotting his hotel deprives him of some of that revenue, attributable to the price AALS had agreed to pay, to send a message to him. Obviously, the AALS received a conference site for its convention, and possibly at less than the maximum price AALS was willing to pay, and maybe now AALS will have to pay more if AALS picks another site. AALS having to pay huge penalty, though, is far from certain.
8.5.2008 6:48pm
DavidBernstein (mail):
Regardless of whether the law professors should be boycotting the conference, the AALS, as a professional organization that represents a wide range of law schools, from Regent to NYU, who employ a mostly liberal but ideologically diverse group of faculty, shouldn't take any position on gay marriage, and thus allow its convention plans to be affected. The caveat is that if enough faculty will boycott the conference, thereby ruining it, that would be an ideologically neutral reason for the AALS to change its plans. On the third had, if the AALS keeps moving its conferences because of ideological opposition to the locale, no one in their right mind will deal with them in the future.
8.5.2008 6:50pm
ejo:
It seems the AALS should be able to do what it wants, just like we all can choose to spend or not spend money at a given business. Nothing exciting about that concept, is there? It would seem to me the contract implications are about money/damages and have nothing to do with the association's moral preening.
8.5.2008 6:51pm
joe doakes (mail):

My alma mater kicked military recruiters off campus because the military's "don't ask, don't tell" policy supposedly violates the law school's non-discrimination policy.

So I quit donating.

We're both happy.

.
8.5.2008 6:57pm
DiverDan (mail):
I love it!! This takes me back (wayyyyy back!) to my days in law school, when I wrote an article for the law review on why the 8th Circuit was wrong in Missouri vs. NOW, a Sherman antitrust case brought against the National Organization of Women and their organized Boycott against Missouri because the Missouri legislature voted against ratification of the ERA. I took the position that the First Amendment, while it might protect any individual decision on whether or not to patronize a Missouri Hotel or convention center, should not provide shelter from an organized boycot intended to coerce others into taking a political position. While one might argue whether or not the Sherman Act was ever designed to address anti-competetive actions undertaken for purely policical reasons, I argued that the First Amendment protection was lost once one crossed the lined from expressive conduct to coercive conduct. Just as the First Amendment doesn't protect abortion protesters who physically interfere with women attempting to enter an abortion clinic, it shouldn't protect any coercive conduct (including organized boycotts) intended to coerce others not to exercise their own First Amendment rights. Needless to say, my Article was never published; I failed to appreciate how popular the NOW Boycott was among the law faculty. Whether or not a polically-motivated boycott is otherwise actionable, under the Sherman Act or otherwise, I remain convinced that the First Amendment should not serve as a shield for coercive conduct.
8.5.2008 6:59pm
Thomas_Holsinger:
If law professors would just stop holding conferences, they could not possibly offend someone by holding a conference. Not to mention that ceasing to hold conferences would reduce global warming.
8.5.2008 7:00pm
DavidBernstein (mail):
C.C., I assume the hotel protects itself in some contractually valid way. How about "forfeiting a deposit," for example? I wasn't trying to use technically correct language.
8.5.2008 7:02pm
LM (mail):
DavidBernstein:

Learn what "consumer surplus" means, then get back to me. Just because someone is a willing seller, doesn't mean that the buyer is doing well from the deal, too.

I assume you meant "isn't doing well from the deal, too."
8.5.2008 7:11pm
CJColucci:
If the AALS wants to forego a consumer surplus to make a point, that's its business. And, as others have pointed out, there may be compensating "surplus" in the way of free publicity and the like. In any event, the foregone consumer surplus doesn't go back to the hotel. Maybe the hotel can make re-rent its rooms at a better rate if AALS pulls out. Maybe not. But AALS can't be expected to figure that out, and neither can any other consumer who chooses not to patronize someone for political reasons. I can think of some sore-footed folk in Montgomery who gave up the consumer surplus they could have earned by getting to work on time and fresh by paying a modest bus fare, while the bus company partially offset the lost revenue through lower fuel bills.
8.5.2008 7:14pm
Perseus (mail):
The American Political Science Association recently faced a similar issue. The question was whether to have its annual meeting in New Orleans (in 2012). It, of course, was taken for granted that Louisiana's constitutional ban on same-sex marriage was discriminatory, but that had to be balanced against giving the city (post-Katrina) a financial boost and the cancellation penalty (and finding a new location). Such an exquisite dilemma for the politically correct. The final decision was to go ahead with having the meeting in New Orleans (along with suggestions on getting legal advice for those who might be affected) and a new policy statement "aimed at speaking out against state legal restrictions on same-sex unions, reflecting a preference for engaging with the state of Louisiana on these issues rather than to boycott New Orleans." In other words, the APSA, for all its pretensions to high-mindedness, behaved just like a conventional politician.
8.5.2008 7:25pm
Bob_R (mail):
Of course, the most effective and just protest would be to fire the organizing committee for choosing a hotel owned by someone with whom a large number of members disagree politically.....But we all know the punishment for doing that.
8.5.2008 7:33pm
NickM (mail) (www):

Everyone should attend, but cross-dress.


Nooooooo. Many of these professors are severely style-challenged when it comes to their own gender's clothing. It will permanently scar onlookers to see what they look like in the other gender's.

Nick
8.5.2008 7:33pm
torrentprime (mail):
The funny thing about posts like Perseus' is how unabashedly he calls worrying about an economically devastated town w/r/t its financial state and unequal treatment under the law for members of our society as a "dilemma for the politically correct." I guess only wacky PC people worry about things like that.
8.5.2008 7:33pm
Rich Rostrom (mail):

The organization will now have to explain why supporting labor unions is more important than supporting same-sex marriage.


There is a difference between conduct by the targeted party in the course of business with the boycotters, and expressive conduct by the targeted party as a private individual.

That is, the union issue applies to the operation of the hotel which the boycotters might stay in. Political donations by the owner are entirely separate from hotel operations.

Also, conduct regarding the union may be morally judgeable in itself - and there is no moral obligation to tolerate another's wrong acts. Expression is not a substantive act, it is used in the process of deciding what acts are right or wrong - we agree to tolerate opposing expression so the process of decision can take place.
8.5.2008 7:37pm
Seamus (mail):
It depends. California's employment discrimination laws protect gays. An employer can be sued if a gay is harassed at work by other employees. So if I were a California employer, I'd not want to hire a bigot who might subject me to an expensive lawsuit.

Depends on what? I've already told you that I contribute money to anti-gay causes. Are you telling me that, in a state with laws against discrimination on the basis of sexual orientation, that is or is not sufficient cause for you to fire me, or refuse to hire me? How about if I'm unfailingly polite to everyone I deal with in my employment, but in my off-hours contribute some (or even a big part) of my earnings to the initiative to ban same-sex marriage? Should all decent employers refuse to hire me until I am properly reeducated?
8.5.2008 7:43pm
Bob_R (mail):
I'm actually kind of warming up to the idea that if the protest hurts the AALS more than the hotel owner it would be a good argument for the protest. After all, isn't the real bad actor here the organization that is effectively forcing members to associate with a business owned by someone with whom they do not wish to associate?
8.5.2008 7:45pm
Houston Lawyer:
I really don't care about the boycott. I do care about those so zealous that they look into the ownership of a business with whom they are thinking of doing business to determine whether they are the right sort. That is just creepy.
8.5.2008 7:50pm
Hoosier:
Perseus: APSA has also run into probelms in the past along the lnes of DB's first point: Trying to gin-up a "boycott" after the respnsible parties had already signed the contrat well in advance. Not a really good advertisement for our political scientists.
8.5.2008 7:52pm
LM (mail):

On the third had, if the AALS keeps moving its conferences because of ideological opposition to the locale, no one in their right mind will deal with them in the future.

And if they stand to lose a large deposit and haven't mentioned it to the boycotters, that would make them both irresponsible and stupid.
Used to be, educators knew better....
8.5.2008 7:55pm
wooga:

So if I give money to anti-gay measures, all right-thinking people should refuse to hire me


It depends. California's employment discrimination laws protect gays. An employer can be sued if a gay is harassed at work by other employees. So if I were a California employer, I'd not want to hire a bigot who might subject me to an expensive lawsuit.

Similarly, I'd not hire a member of the KKK. I'd also not hire someone who had been convicted of flag burning.


So, if your prospective employee is a member of the Republican Party, or attends the wrong church (e.g., San Diego Rock Church), or belongs to any other organization which is backing the anti-SSM law, then you would refuse to hire them... because hiring a Republican (i.e., a "bigot") might subject you to an expensive anti-discrimination lawsuit.

Great idea!

Except for the whole "hiring discrimination based on political or religious affiliation" thing being illegal for California employers. Dang.
8.5.2008 7:56pm
A. Zarkov (mail):
How do we know the leaders of these organizations are expressing the will of the members in regards to the boycott? What if a majority of the members don't care? Or don't want their choice of hotels restricted. It seems to me that these organizational leaders are somewhat presumptuous. They are trying to impress their preferences on the membership.
8.5.2008 8:20pm
theobromophile (www):
The organization will now have to explain why supporting labor unions is more important than supporting same-sex marriage.

San Franciscans are more vocal about their opposition to non-union labour than San Diegans are to anti-SSM folk.

Now, my question: would these same left-leaning folks get upset about having the convention in a Marriott?
8.5.2008 8:24pm
Perseus (mail):
I guess only wacky PC people worry about things like that.

The APSA is a professional association, not a charity. That same professional association presumes to take a (predictably liberal) political position on behalf of its members with little in the way of a truly "open, deliberative, and comprehensive process" of discussion. So, I have no reservations about highlighting what I regard as the wacky, insular PC nature of the debate among my colleagues.
8.5.2008 8:35pm
Mike S.:
Since very few businesses operate at anything close to a 50% profit margin, I assume that the hotel's employees at various levels and hotel's suppliers stand to make, collectively, far more money from the convention than the owner. Has any one asked their views on Prop. 8? Suppose they decide to move the convention to a hotel whose owner opposes Prop 8. Will they take a survey to make sure no employee is donating to Prop 8? Or to a Church that is supporting prop 8? Are they going to require the hotel to boycott suppliers that might support prop 8? This sort of thing is ridiculous.
8.5.2008 8:36pm
genob:

How do we know the leaders of these organizations are expressing the will of the members in regards to the boycott? What if a majority of the members don't care? Or don't want their choice of hotels restricted. It seems to me that these organizational leaders are somewhat presumptuous. They are trying to impress their preferences on the membership.


That's usually the case. Just look at the positions that the ABA stakes out, much to the chagrin of the membership (Heller brief just the latest example)...Seems like the motivation to become a leader of organizations like this is to use it as a platform to express their individual preferences...not represent the membership.
8.5.2008 8:42pm
Larryp:
Houston Lawyer: Although it is unusual to look into the politics of business owners, Manchester hangs photos of himself hobnobbing with various Republican political operatives - including the controversial Katheryn Harris of 2000 Florida election infamy - in his Hyatt lobby. He clearly doesn't mind mixing his politics with his business and I can't see faulting a traveler choosing another hotel solely on that basis.
8.5.2008 8:58pm
Bruce Hayden (mail) (www):
One more time: If the AALS wants to punish the hotel, it could do the following: Pay a $25,000 penalty. Yes, that's money in the hotel's coffers. But what if the AALS gets $500,000 worth of PR for the cause? I imagine the media will cover the issue.

What if that coverage leads to a widespread boycott? What if the coverage puts the hotel out of business?

Would it have been smart to spend $25,000 to obtain $500,000 worth of PR? I'd sure think so.
I am not sure why this would be worth $500,000 in advertising to a group of law professors. As likely, it might result in negative advertising for such. They already have a reputation for left wing political correctness. This would just seem to reinforce this.

Remember, this is San Diego, not San Francisco. This sort of boycott may result in more, not less, business for the hotel.
8.5.2008 8:59pm
Perseus (mail):
APSA has also run into probelms in the past along the lnes of DB's first point: Trying to gin-up a "boycott" after the resp[o]nsible parties had already signed the contra[c]t well in advance. Not a really good advertisement for our political scientists.

I suppose you could defend it on Clintonian "triangulation" grounds. The APSA meeting site policy, while officially non-partisan, also officially gives preference to locations that have SSM, organized labor, green and carbon neutral practices, high concentrations of ethnic/racial groups, etc., but we just cannot satisfy the fringe of really wacky PC types. So the bulk of us are sensibly moderate by comparison.
8.5.2008 9:30pm
DavidBernstein (mail):
Rich Rostrum, that's a fair point.
8.5.2008 9:50pm
corneille1640 (mail):

How about if I'm unfailingly polite to everyone I deal with in my employment, but in my off-hours contribute some (or even a big part) of my earnings to the initiative to ban same-sex marriage? Should all decent employers refuse to hire me until I am properly reeducated?

Well, if you're unfailingly polite, then you're not a bigot, at least not at work, which is pretty much all an employer, in my opinion, has a right to concern himself with.
8.5.2008 9:50pm
U.Va. 3L:
the obvious issue as to whether an owner's donating money to a lawful cause with which one disagrees should be deemed a sufficient reason to boycott a business, and if so, under what circumstances.

I don't see why any reason a would-be boycotter pleases isn't sufficient to support a boycott. If someone feels so strongly about X that they want nothing to do with those who take the opposite view on X, I don't really have any problems with it. I know people who try as carefully as possible to buy only American, union-made stuff, and I know people who similarly try to avoid buying union, for example. It's clearly very important to these people, which seems to me is the appropriate standard here.

That said, for the reasons Ilya points out in his post, I think AALS is being quite hypocritical by boycotting this hotel but letting Notre Dame, BYU, and other religiously affiliated law schools retain their membership.
8.5.2008 9:55pm
Stephen C. Carlson (www):
(The Heritage Foundation hardly wants NARAL ads going out with a "Heritage Foundation Building" return address.)

I'm guessing that NARAL would feel the same way.
8.5.2008 10:00pm
Randy R. (mail):
"I do care about those so zealous that they look into the ownership of a business with whom they are thinking of doing business to determine whether they are the right sort. That is just creepy."

Well, some people would say that looking into the sexual relationships of a business owner or employee to determine whether they are the right sort is also sorta creepy. But many people are arguing that they have the right, as well as a religious duty, to do so and discriminate against those who are not the 'right sort.'

This Manchester guy is a piece of work. Doesn't he realize that a fairly significant number of his hotel staff are gay? Doesn't he realize that his hotel stands to gain a lot of business from gay weddings and other events? Talking about shooting himself in the foot. He should be boycotted for stupidity more than anything else.

And *anyone* who is proud of hanging with Katheryn Harris ought to be subjected to bad mascara applications himself.
8.5.2008 11:19pm
Randy R. (mail):
ejo: "perhaps they can hold it in San Francisco. the gay community backs open sex acts at public fairs in broad daylight."

Careful, ejo. Envy is a sin.
8.5.2008 11:24pm
p3731 (mail):
Why are you interested? I mean, why are you posting about this? Do you even know?
8.5.2008 11:39pm
Brian K (mail):
I find it hard to reconcile the response between those who say aals should endorse gay rights because some of it's members may not necessarily agree with it and who also say that bush should be able to implement his policy ideas despite large chunks of the population disagreeing with them. well...i can reconcile it but it doesn't speak well for the many of the commenters above.
8.6.2008 12:05am
HM:
The premises of the bulk of the arguments against a boycott seem to be that, first, Mr. Manchester's support of the proposition to amend the state constitution is nothing more than a harmless political stance and that, second, AALS should not hurt itself financially to make the point. I don't buy either premise.

On the first point, I think to reduce Mr. Manchester's deed to a purely political one is, in this case, too generous. He wants to discriminate against me and my family and others like mine; his discrimination gives others, more vitriolic than he I presume, credence for their biases. I would not want to stay in his hotel and I do not want AALS to host a conference there either -- it would be demeaning to me politically, professionally, and personally. Our individual and group consumerism is a reflection of both our politics and our morality. If nothing else, we decide where and how to spend not just our money, but our time and our energy. The leaders and groups who will boycott the hotel (and thus the conference if it is held there) have the courage of their convictions -- a trait lacking too much these days.

On the second point, there is more than just spending money at issue here. "AALS is a resource for the improvement of the quality of legal education by networking law school faculty, professional staff and deans to information and resources." Why shouldn't the group decide that Mr. Manchester's large and well-publicized donation in support of the proposition makes a conference at his hotel incongruent with the group's purpose and policies? What would it say about a group that they choose (or keep) this venue in the face of a Mr. Manchester's well-publicized donation for this particular cause? At some point, individuals and the groups they belong to do need to take a stand, often by where they spend money, but sometimes by where they do (or don't) congregate, and even by their conscious determination to take a financial hit. It's true, Manchester has every right to hold this belief and spend his money as he likes and so, too, is it true that organizations have the right to spend their money in a way that is consistent with their policies. So, bravo to those who advocate a boycott — move the conference and engender thought-provoking conversation on a timely issue, earn some good will, and get some positive press (it will be mostly positive). In the process, pick a new hotel where the attendees don't have to worry that if they buy a $2.50 bottle of water in their room, they've just given Mr. Manchester $2.00 for his cause(s).

Would the situation be different if Manchester was a card-carrying KKK member supporting (with a $125,000) a proposed amendment to write in a prohibition on miscegenation? Would AALS (or LWI) be justified in boycotting then? Whether he is a powerful discriminator against homosexuals or some other minority is a distinction without a difference. Money, presence, hosting, renting a room (conference rooms, a block of hotel rooms, one hotel room, even one in a seedy hotel) are not apolitical or amoral events. For the people, couples, families, and children it impacts, the proposed amendment is not "just politics."

As an aside, knowing who the most powerful supporters of a lightning rod state constitutional amendment doesn't make you "creepy," it makes you well-read:

LA Times article on Manchester's contribution
8.6.2008 12:47am
DavidBernstein (mail):
"Would the situation be different if Manchester was a card-carrying KKK member supporting (with a $125,000) a proposed amendment to write in a prohibition on miscegenation?"

No.

"Would AALS (or LWI) be justified in boycotting then?"

No. (With the caveat, again, that if enough members of the organization are grievously offended and decide to boycott the meeting on their own, this would be a non-political reason to hold the conference elsewhere, i.e., the AALS is responsible for trying to hold a SUCCESSFUL conference.

"What if the hotel refused to allow same-sex couples to share a room?"

Yes.

"What if a requirement for staying at the hotel was a donation to Mr. Manchester's political action committee?"

Yes.
8.6.2008 12:57am
xrwo (mail):
Thankfully AALS is not as discriminatory as Mr. Manchester. AALS would never single out a group or person based on ideological views--unless of course those views happened to be against AALS's own view of what was good and right, which would make those other views abhorrently discriminatory. Discrimination is ok, you see, if it's purpose is to combat the evil discriminators of the world. And evil discriminators are everyone who is against AALS's own way of viewing things. Thank goodness for the open-minded AALS.
8.6.2008 1:18am
Brian K (mail):
does anyone else remember the whole freedom fries thing? when the french (and other EU nations) were boycotted discriminated against based on the their viewpoints. the right had a very different belief on the rightness of that than is being expressed in this thread above.
8.6.2008 8:26am
A.C.:
I'm one of the people who think the KKK situation IS different. The KKK doesn't just lobby for legislation. It also has a reputation for violence and vigilante activity. That puts it in a different category.

If the hotel owner in this case were carrying out violence against gay people, or giving financial support to those who do, I would get behind the boycott 100%. But he isn't. Nobody has even argued that he is discriminating against gay employees or gay hotel guests. He's taking a stand on a political issue that is still controversial. I don't agree with his position, and I think he'll end up on the losing side in the long run, but he's as free as anyone else to put his best arguments forward and see who takes them up.

I even think he may be providing a service (from my perspective as a gay marriage supporter) by acting as Devil's Advocate. A certain amount of opposition forces proponents of social change to think through what they are doing and how they present it to people on the fence. I wouldn't boycott a person's business just because he takes on that role for one issue.
8.6.2008 10:21am
JosephSlater (mail):
Ah yes, the French boycott. Although Bill O'Reilly famously lied about the amount of money involved, it did exist. I recall going into a local bar with some friends; the friend ordered a (French) vodka, and the waitress said the bar didn't serve French products because of the Iraq war issue. We left, and I recall telling the waitress that she should tell the bar owner he had just lost a significant amount of business -- given my friends' willingness and ability to drink, that was a true statement.

DB:

Out of curiousity, how many people/what percentage of potential attendees would have to tell AALS they weren't going to a hotel because of a political issue like this before you would conclude that the AALS could be justified in cancelling a hotel contract on politically neutral grounds?
8.6.2008 10:32am
Public_Defender (mail):

If you were a student, would you feel comfortable expressing an anti-same-sex marriage view if you knew that the teacher couldn't stand to stay at a hotel owned by somebody who opposed same sex marriage?


I would hope that soon, people would be as "uncomfortable" expressing expressing anti-same-sex marriage views as they currently would expressing anti-miscegenation views. At the time Loving v. Virginia was issued (by "judicial fiat"), many people felt "comfortable" arguing that "race mixing" was wrong. I'm glad most would feel "uncomfortable" expressing such a view today.

The reality is that in many of the social and work settings, expressing anti-gay views would be a strike against you. An openly anti-gay person would have a hard time advancing at my office, and he or she would not many many friends among my neighbors.

Apparently, the AALS is one of those places. Good.
8.6.2008 10:33am
DavidBernstein (mail):
Joe, I don't know, I'd have to see the financials, and also there are some indeterminate issues. E.g., I have a feeling that if the AALS does move the conference, they may lose some "business" from the other side.
8.6.2008 11:27am
Ken Arromdee:
For the people, couples, families, and children it impacts, the proposed amendment is not "just politics."

But if that's the rationale you use, there's no difference between political and non-political any more. All political positions are taken on the supposed grounds that they hurt people. After all, think of the children!

What if someone were to propose a boycott of a hotel based on the owner's opposition to farm subsidies? Farmers are people, and they have children, after all.
8.6.2008 11:53am
Lazlo Holyfeld:
Professor Bernstein,

If the hotel owner had contributed money, and taken an active role, in an organization that denied Israel's right to exist, would your views remain the same?
8.6.2008 11:53am
DavidBernstein (mail):
Which part of "a scholarly organization representing institutions and individuals with diverse viewpoints, should not participate in any boycott based on someone's political views" is unclear?
8.6.2008 11:58am
Lazlo Holyfeld:
I will take your word for it, Professor.
8.6.2008 12:08pm
Seamus (mail):
does anyone else remember the whole freedom fries thing? when the french (and other EU nations) were boycotted discriminated against based on the their viewpoints. the right had a very different belief on the rightness of that than is being expressed in this thread above.

The Right was being a bunch of assholes then, just as the AALS is being a bunch of assholes now. (Although I have to admit that I was encouraging the boycott of French wines--in hopes that it would drive the price down and make my wine budget stretch farther.)
8.6.2008 12:08pm
JosephSlater (mail):
I'm undoutedly way behind the curve on this issue, but is the proposal to boycott the entire conference unless the hotel is changed, or just to boycott events in the particular hotel at issue? I recall when there was a labor dispute in one of the AALS conference hotels in San Francisco a few years ago, some of the labor-friendly types avoided the particular hotel in question, but not the conference as a whole.
8.6.2008 12:10pm
Seamus (mail):
Well, if you're unfailingly polite, then you're not a bigot, at least not at work, which is pretty much all an employer, in my opinion, has a right to concern himself with.

Well, if Manchester isn't a bigot at work (i.e., doesn't discriminate against gay employees, doesn't gratuitously insult them on the basis of their orientation, etc.), then that's pretty much all anyone on the outside has a right to concern himself with.
8.6.2008 12:10pm
GatoRat:
If the AALS goes to another hotel, are they going to vet the service staff since many of them will oppose gay marriage.
8.6.2008 1:41pm
Reality Check:
Prof. Ribstein's is concerned about anti-gay marriage students feeling intimidated by pro-gay marriage professors. Let's cry them a river.

All these blog posts and comments miss the irreducible point: among reasonable people of good faith, the debate on gay marriage is over.

Anyone who opposes this basic equality should be made to feel uncomfortable and even pay an economic price for their prejudice. Would we want anything different if this involved a matter of race?

Get with the 21st century, folks.
8.6.2008 6:25pm
Brian K (mail):
Although I have to admit that I was encouraging the boycott of French wines--in hopes that it would drive the price down and make my wine budget stretch farther.

that's the only valid reason to boycott french wine, or any other kind of boozey beverage, that i can think of :)
8.6.2008 7:32pm
DavidBernstein (mail):
"All these blog posts and comments miss the irreducible point: among reasonable people of good faith, the debate on gay marriage is over."

These are the sorts of comments that likely make the marginal voter oppose gay marriage. If proponents of gay marriage, and other gay rights issues, can't recognize that their opponents may be "reasonable people of good faith," they are less likely, once they win whatever battles they are currently fighting, to hesitate to use the power of the state to coerce their opponents, e.g., to force religious institutions to adopt policies out of conformity with their beliefs, or to try to suppress speech opposing gay rights.
8.6.2008 7:35pm
Randy R. (mail):
"they are less likely, once they win whatever battles they are currently fighting, to hesitate to use the power of the state to coerce their opponents, e.g., to force religious institutions to adopt policies out of conformity with their beliefs, or to try to suppress speech opposing gay rights."

Any basis for this other than pure speculation? The debate on the Holocaust is over, so is the debate on interracial marriage, women's rights, evolution, whether the earth is the center of the universe, and all sorts of things. When it comes to factual based items, like the Holocaust, evolution and the universe, I would hope that you agree that no other competing ideas should have any place in our society, unless there is evidence to support it.
When it comes to ideas about race, gender, handicapped status, and so on, one can still privately hate gays, blacks, women, the lame and so on, but I don't see any of them coercing their opponents, or force religious institutions to adopt policies out of conformity with their beliefs.

Example: Women have equal rights in our society, and that is beyond debate. Islam doesn't believe women have equal rights. Where are the women forcing islam to suppress their speech opposing women's rights?

Sorry, Prof. Bernstein, but you raise a red herring.
8.6.2008 8:09pm
A.C.:
No, he's not. Not about marriage, although he may be about outright persecution of gay people in other areas. Plenty of people have come around to the notion that gay people should have basic civil rights, but they still wig out around the marriage issue because they still think of gay relationships as fundamentally about sex. Sexual practices that freak them out, in fact, because as non-gay people they can't imagine why anyone would want to do such things. (Lesbians don't necessarily "get" gay men either, and I'm sure the reverse is true as well.)

The way to get around that isn't confrontation. It's to put gay marriage into another context, to make it not so much about sex but about committed partnership. Elderly people, regardless of their degree of conservatism, tend to understand the problem of who gets to make health care decisions for whom. And about who ends up controlling a business when two people have been running it for years and one of them gets sick. Marching down the street with a sign and an attitude doesn't really help. The trick is how to get gay marriage opponents to see past differing sexuality and understand the life stuff that gets messed up when committed partners can't formalize their relationship in law.

In short, it's more complex than one-dimensional bigotry. And that's why something like a boycott, which seems to be aimed at the political purity of its instigators as much as at any effort to change minds, seems silly. Narcissistic, even, like so much of politics these days.
8.6.2008 8:44pm
KWC (mail):
Bernstein:

(1) Actually, "As I noted in the comments below, I agree with other commentators that the AALS, as a scholarly organization representing institutions and individuals with diverse viewpoints, should not participate in any boycott based on someone's political views" is not a clear, or for that matter, well-written sentence.

(2) Randy R.'s refutation of your last comment is spot on. I will say, however, that his statement that "Islam doesn't believe women have equal rights" is a gross oversimplification of the tenets of Islam. What's more, we should recall that Christianity, if read true to the text, doesn't support "equal rights" of women, either.
8.6.2008 8:51pm
Public_Defender (mail):
If the Volokh Conspiracy had existed 40 years ago:


Comment:"All these blog posts and comments miss the irreducible point: among reasonable people of good faith, the debate on legalizing interracial marriage is over."

Bernstein: These are the sorts of comments that likely make the marginal voter oppose legalizing interracial marriage. If proponents of interracial marriage, and other civil rights issues, can't recognize that their opponents may be "reasonable people of good faith," they are less likely, once they win whatever battles they are currently fighting, to hesitate to use the power of the state to coerce their opponents, e.g., to force religious institutions to adopt policies out of conformity with their beliefs, or to try to suppress speech opposing civil rights for blacks.
8.6.2008 9:30pm
DavidBernstein (mail):
Among the many rather obvious differences in the debates over gay marriage and interracial marriage is that almost all opponents of interracial marriage wanted to ban interracial sex as well, whereas a very large percentage of those who oppose gay marriage think gay sex should be legal, a significant fraction support some legal status for gay relationships not called marriage, but often with very similar, or even the same, legal rights.

The most obvious difference, of course, is that members of different racial groups are not actually inherently different in any meaningful way that would affect a marital relationship, whereas men and women are in fact different, making a relationship between two men or two women inherently different in some ways than a heterosexual relationship. One may not think that the relevant differences matter much, or that if they do matter, it changes the fact that marriage is a human right to which gays are entitled, but one would hardly have to be unreasonable to think otherwise.

There are other obvious differences, but you get the idea.

To simply dismiss such things and declare that all reasonable people think gay marriage should be authorized by law and everyone else should be boycotted bespeaks the type of close-mindedness and authoritarianism that does indeed lead to the criminalization of pure expression. And in fact, outside the U.S., in Canada and various European countries, people have in fact been prosecuted for, e.g., expressing traditional religious objections to homosexual sex.

I'm not saying it would actually ever come to that, but if I were someone with traditional religious beliefs, I might very well wonder if the next step after gay marriage is to criminalize my beliefs--after all, why protect practices and beliefs that no reasonable person could possibly agree with? A ratcheting down of the rhetoric would, in my opinion, increase the political appeal of gay marriage.
8.6.2008 9:50pm
Perseus (mail):
I don't see any of them coercing their opponents

I thought that was the whole point of anti-discrimination law, which tends to define "public" rather broadly. Same for advocates of campus speech codes. So, I dispute your claim of fact.
8.6.2008 9:59pm
wooga:

All these blog posts and comments miss the irreducible point: among reasonable people of good faith, the debate on gay marriage is over.


The SSM debate is one of morality. Can the majority legislate its moral views on others? Well, the majority in California bans prostitution, gambling, drugs, public smoking, driving without seat belts, riding bikes without helmets, and all sorts of other fun stuff - based on fundamentally moral decisions.

How is it "unreasonable" or not in "good faith" to acknowledge historical reality? Opposing SSM does not mean you hate gay people, anymore than opposing prostitution means you hate prostitutes.
8.6.2008 10:43pm
wooga:

I don't see any of them coercing their opponents, or force religious institutions to adopt policies out of conformity with their beliefs.


Uh.... You know it is illegal to read Leviticus aloud in Canada, right? And that ban is solely based on the moral condemnation leveled in Leviticus against gays, right? How is that not forcing religious institutions to adopt policies out of conformity with their belief?
8.6.2008 10:51pm
Randy R. (mail):
" I might very well wonder if the next step after gay marriage is to criminalize my beliefs."

Well, you may wonder, but your wonder is unfounded. No one has attempted to criminlize any beliefs, and if they tried to do so, it would be unconstitutional. Actions can be criminalized, but beliefs? No.

Perseus: "I thought that was the whole point of anti-discrimination law, which tends to define "public" rather broadly."

Then you thought incorrectly. We have laws that prohibit you from firing a person or refusing to hire someone based on the color of their skin. You are free to think whatever you like about blacks, but you cannot *act* against any black person or treat him differently from any other white person. Perhaps that's what you mean by coercion, but I'm sure if you were part of a discriminated minority, you would view it as treated everyone equally.

Wooga: "The SSM debate is one of morality."

Common fallacy. What has morality to do with whether two people get married? Lying, cheating, stealing, killing -- these are matter of morality because they harm another person without their consent.

Bike helmets are a moral issue? So people who don't ride with them are immoral? As are people who refuse to use seatbelts?

I know several people who are deeply conservative who refuse to use helmets or seat belts as a matter of principle, because they don't want the state telling that they have to be safe riders. They would take severe umbrage at you calling them immoral.

As for SSM, what is the harm to any other person? Is there a safety issue involved? No. Thererfore, even by your own standards, it's not a moral issue.
8.6.2008 10:59pm
Randy R. (mail):
"A ratcheting down of the rhetoric would, in my opinion, increase the political appeal of gay marriage"

I agree, to a certain extent. Perhaps we shouldn't paint all people who oppose SSM as bigots, or knuckedraggers, or holy rollers.

So let's ratchet down the rhetoric. But let's do it for both sides, shall we? When I see posts that claim that gays only want to have public sex in front of children, I see some pretty nasty rhetoric. When I hear that gays are going to rape your children, want to destroy western civ, destroy marriage and so on, do you call on them to 'ratchet down the rhetoric?"

Sorry, Prof. Bernstein, perhaps I missed it, but I haven't seen that anywhere from you, and I post a lot on this blog.
8.6.2008 11:03pm
DavidBernstein (mail):
Well, I'm suggesting a ratcheting down because I'm generally sympathetic, not because it's rude.
8.6.2008 11:09pm
Perseus (mail):
You are free to think whatever you like about blacks, but you cannot *act* against any black person or treat him differently from any other white person. Perhaps that's what you mean by coercion, but I'm sure if you were part of a discriminated minority, you would view it as treated everyone equally.

That is indeed what I mean by coercion, and no I don't necessarily view it as treating everyone equally even though I do in fact belong to several minority groups that are "discriminated against".

Campus speech codes are a more direct attempt to shut people up who don't hew to the politically correct line.
8.7.2008 12:29am
Down from the Ivory Tower:
No rational person can oppose gay marriage in good faith. Religious adherents may oppose it in good faith, but they don't do so rationally. After all, they also believe that Moses parted the waters, Joseph Smith dug up gold plates in his yard, etc.

Likewise, many otherwise rational people oppose gay marriage in bad faith: because they dislike or fear gay people, because they want to exploit the issue for political reasons, or because they themselves are afraid they have a same-sex attraction.

All you academics pretend that somewhere out there people exist who don't fit these categories, and a useful pretense it is, seeing how you so enjoy debating gay marriage. Well, good luck finding such people in the flesh.

As it happens, I attended the protest at the Manchester Grant Hyatt in San Diego a couple of weeks ago. While I waited to cross Harbor Drive and join the protest, a friendly-looking middle-aged lady who turned out to be the organizer of the Proposition 8 counter-protest asked to see my sign. When I showed it to her, she sneered, "You must be a queer." This is the type of person who opposes gay marriage in 2008.
8.7.2008 1:02am
David Warner:
"traditional religious objections to homosexual sex"

Actually, if one follows the traditions back far enough (i.e. the Greek roots of the Christian New Testament, Semitic customs prior to the canonization of the Torah) those objections were either not so prominent or not there at all. In other words, the objections themselves were once "progressive". Why might that have been?

The simplest explanation for the Jews would be that they needed maximize offspring/warriors at the time. This doesn't hold in the Christian case.

My guess is that historically, even zoologically, homosexuality was/is(?) an enabling technology for polygamy/dominance (especially genetic) of the weak by the strong. Conversely, a more egalitarian/monogamous (a chance for every beta male to reproduce) culture might (either intuitively or explicitly) be averse to it.

The high value we now place on sexual autonomy outweighs this intuition vis-a-vis personal sexual behavior, but might not on an institutional level. Given the de facto polygamy among those struggling socio-economically, who also tend to oppose gay marriage, I'm hesitant to attribute this opposition to pure bigotry.
8.7.2008 4:30am
Public_Defender (mail):
I don't think that the government should punish anti-gay speech. I do think the government should refuse to subsidize anti-gay action (by giving special privileges not available to the general public) or permit anti-gay bias to be considered in areas of traditional governmental concern (such as who would make an acceptable adoptive parent). I also think individuals should exert social pressure against anti-gay views.

As to race, many otherwise good people thought that there was something inherent about race that made interracial marriage fundamentally wrong. That attitude has changed (or at least gone underground), but it was very, very real.
8.7.2008 9:37am
Public_Defender (mail):
Three more thoughts:

1) This exchange proves Professor Kerr's point. Where you stand on the morality of discriminating against gays and gay marriage determines where you stand on the boycott.

2) I do not think there is a tenable middle ground. Either gay marriage is moral or it is not. Either discriminating against gays is moral or it is not.

3) I don't see the logic in condoning gay sex without supporting gay marriage. Trysts are better than monogamy???
8.7.2008 10:16am
wooga:

Wooga: "The SSM debate is one of morality."

Common fallacy. What has morality to do with whether two people get married?

Randy R.,
A marriage, even in secular form, is an explicit endorsement by the state of a sexual union. If gay sex is believed to be immoral, then an anti-SSM law is plainly an issue of sexual morality. Many people who would oppose anti-sodomy laws (like myself) do so out of opposition to state intrusion into personal activities - even though they may find sodomy technically immoral. Marriage, however, is a point where the state is already involved, and where the state is endorsing an activity. I think the state should tolerate sodomy, but not encourage it.

Lying, cheating, stealing, killing -- these are matter of morality because they harm another person without their consent.

What about the example I focused on: prostitution? That is a consensual activity which does not (usually) harm either participant. Your narrow definition of moral matters - as only those involving non-consensual harm - would mean prostitution is not a moral issue. Do you really believe that?

Bike helmets are a moral issue? So people who don't ride with them are immoral? As are people who refuse to use seatbelts?

I know several people who are deeply conservative who refuse to use helmets or seat belts as a matter of principle, because they don't want the state telling that they have to be safe riders. They would take severe umbrage at you calling them immoral.

I would also take umbrage if someone called me immoral for not wearing a seatbelt, in the same way (but obviously not the same degree) gay individuals take umbrage at sodomy being called immoral.

Seat belt and helmet laws are only justified for the same reason that suicide is illegal - the majority values your life more than they value your freedom (i.e., there is no exclusion from seat belt or helmet laws for those with "sufficient insurance") That is a fundamental moral balancing.

Again, just because something is a 'moral issue' does not mean that everyone has to agree on which side is moral. I do not think it immoral to drive without a seatbelt. But there are those who do, and they enacted a law. I obey their law. There would certainly be a threshold where I disagreed so vehemently that I felt breaking the law was morally justified. Then, I would break the law, and suffer the legal penalties willingly (i.e., civil disobedience).


As for SSM, what is the harm to any other person? Is there a safety issue involved? No. Therefore, even by your own standards, it's not a moral issue.
My standard? You are the one who confines morality to issues which harm others in a non-consensual manner. When you say "even by your own standard" you are WAY off base. Perhaps you got my post confused with someone else.

I believe that morality touches on many, many things, including those which I do solely within my own head (e.g., lust and envy). Then we get into all the physical activities I could engage in by myself... but this is a family blog.

I say activity 'x' is a moral issue. You say it is not. Does your declaration automatically exclude 'x' as a moral issue anymore than my declaration includes it? No. Whether something is a moral issue is a societal question, and thus is only appropriate for resolution by popular means (in our case, voting in a constitutional republic).
8.7.2008 1:59pm
wooga:

3) I don't see the logic in condoning gay sex without supporting gay marriage. Trysts are better than monogamy???

Public Defender,
It's simple an issue of tolerance versus endorsement. The state should tolerate sodomy, but it should not endorse it. The 'marriage' label is state endorsement of the union.
8.7.2008 2:02pm
wooga:

No rational person can oppose gay marriage in good faith. Religious adherents may oppose it in good faith, but they don't do so rationally. After all, they also believe that Moses parted the waters, Joseph Smith dug up gold plates in his yard, etc.

Are my arguments irrational or in bad faith?

You are starting from the false assumption that religious belief is not rationally acceptable. That fits 'bigot' much more than me...
8.7.2008 2:07pm
Public_Defender (mail):

Public Defender,
It's simple an issue of tolerance versus endorsement. The state should tolerate sodomy, but it should not endorse it. The 'marriage' label is state endorsement of the union.


So it's better for the State to tell gay people that multiple one-night stands are "tolerated" but monogamy will not be encouraged?

Again, the boycott issue comes down to whether you think there's something inherently immoral about gay people or something inherently immoral about discriminating against gay people.
8.7.2008 3:00pm
Public_Defender (mail):

It's simple an issue of tolerance versus endorsement. The state should tolerate sodomy, but it should not endorse it. The 'marriage' label is state endorsement of the union.


You morally disapprove of same sex union. Some morally disapprove of discriminating against gay people. If you are entitled to legislate and act on your morality, why can't the people who oppose anti-gay discrimination do the same?


What if Mr. Manchester didn't contribute money to oppose same sex marriage cause, but supported it vocally? Of course contributions are a form of expression. Would or should these groups make a distinction between contributions and other expression of belief? * What if Mr. Manchester were only a majority shareholder? A minority shareholder? Vice president? CFO? Since the protest here isn't over the hotel's policies, control would seem to be irrelevant. What if he had only invested a lot of his money in the holding company of the hotel? The franchisor? * Why just the hotel? Why not the restaurant owner? The food supplier to the hotel? Or any of their shareholders? * Who exactly would the boycott be hurting?

The less the support, the less the stake in the decision, the greater the proximity from the decision, the less a boycott is appropriate.


I assume that Mr. Manchester has some kind of contract with the AALS. But what about his workers, many of whom depend on tips? Come to think of it, what if hotel workers or one of its unions had expressed homophobic or anti-same-sex marriage views? *

As to the workers, sometimes workers get hurt. The cause has to be important enough. Workers at segregated lunch counters may have depended on tips, but it was still fair to boycott their employer. Perhaps, instead of taking his employees economically hostage, Manchester should reimburse them for tips they lose because of his bigotry.


How would the boycotters feel about teaching students who opposed same sex marriage? (I note that the chair of one of the boycotting groups heads the legal writing program at a Catholic law school). * If you were a student, would you feel comfortable expressing an anti-same-sex marriage view if you knew that the teacher couldn't stand to stay at a hotel owned by somebody who opposed same sex marriage?

It used to be OK in business and at major universities to disparage Jews, blacks, Catholics, etc. Today, students would feel "uncomfortable" expressing such thoughts. Good.
8.7.2008 3:43pm
Down from the Ivory Tower:
Wooga,

Do you mean to suggest that religious faith is rational? Where I come from, reasoning is based on observable facts, and so far I've seen no evidence of any god sitting on a cloud who cares one way or another about gay marriage.

So, yes, if this kind of bologna is the basis of your opposition to gay marriage, then you are the definition of irrational.
8.7.2008 4:16pm
wooga:
Down from the Ivory Tower,
It's beyond the scope of this thread, but I base my belief in God on the modal variant of the ontological argument, as phrased by Alvin Plantinga (his book "The Analytic Theist" is extremely boring, but is the best discussion of that argument). You can also go from the cosmological or teleological arguments, which are not conclusive, but at least establish the rational acceptability of belief in a god.

I think you misuse the term irrational. Irrational means against reason. Something can be beyond the grasp of reason, but not irrational. That's basic philosophy. Call it a-rational if you like.
8.7.2008 4:44pm
wooga:

Wooga: It's simple an issue of tolerance versus endorsement. The state should tolerate sodomy, but it should not endorse it. The 'marriage' label is state endorsement of the union.


Public Defender: You morally disapprove of same sex union. Some morally disapprove of discriminating against gay people. If you are entitled to legislate and act on your morality, why can't the people who oppose anti-gay discrimination do the same?


Where in the world did I say they couldn't? I'm in FAVOR of putting moral issues to popular vote, as "right and wrong" are decisions best lest to the people, rather than unelected folks. If the people of state 'x' want to adopt SSM, that is their right. I'm not begrudging SSM propoents of their democratic rights.

If I'm not mistaken, it is the pro-SSM side who are near universally opposed to putting the issue on popular ballots.
8.7.2008 4:54pm
wooga:
"Where I come from, reasoning is based on observable facts,"

Down from the Ivory Tower,
Where you come from is apparently not too keen on a priori logic, it seems.

It is rational to believe the sun rotates around the earth, because that is what I observe with my own eyes! It is rational to believe that David Blaine really can levitate, because that's what I observed! You get the point.
8.7.2008 4:58pm
Public_Defender (mail):

Where in the world did I say they couldn't? I'm in FAVOR of putting moral issues to popular vote, as "right and wrong" are decisions best lest to the people, rather than unelected folks. If the people of state 'x' want to adopt SSM, that is their right. I'm not begrudging SSM propoents of their democratic rights.

If I'm not mistaken, it is the pro-SSM side who are near universally opposed to putting the issue on popular ballots.


I'm also talking about private action--like choosing friends and colleagues, boycotting, etc. If a group of university wants to refuse to support a hotel that forwards part of the money to anti-gay causes, good for them. (And by the way, didn't Massachusetts just vote to make SSM available to non-residents?)

On the subject of courts, I think anti-gay groups should have some rights. If a local government tried to require the Catholic Church to perform same-sex marriages, I think the Catholic Church should have access to the courts to overturn that democratic decision. If a university makes funds generally available to student groups, a court should step in if the university requires all groups receiving the funds endorse gay rights.

On the other side, a state supreme court has the right (actually the duty) to decide whether the language in that state's constitution permits or requires the state to allow legal gay marriage. If California residents want to change that, they have the power.

Part of the reason the anti-gay-marriage folks are scared is that the trend is against them. It looks like they will fail in California. Even if the anti-gay people prevail now, they will lose in five or ten years. The pro-gay-rights folks are confident for the same reason.
8.7.2008 5:50pm
Randy R. (mail):
Wooga: " If gay sex is believed to be immoral, then an anti-SSM law is plainly an issue of sexual morality...."

I understand, but on what BASIS do they conclude that gay sex is immoral? You haven't explained that.

"What about the example I focused on: prostitution? That is a consensual activity which does not (usually) harm either participant. Your narrow definition of moral matters - as only those involving non-consensual harm - would mean prostitution is not a moral issue. Do you really believe that? "

Yup. So I pay a person for sex. Big deal. What's immoral about that? Two people bargain for and get exactly what they want.

And if you are going to say that prostitution is immoral, then what about when a man takes a woman to dinner, and then they have sex. He pays for her dinner, and she gives him sex. (Let's assume that absent the dinner, she would not be inclined to give him sex). Still prostitution, but now that's somehow moral, and also legal.

Or a woman marries a man only for his money. She gets the jewels and the furs, and he gets sex. Prostitution or not? Moral or not?

If both are happy, they get what they bargained for, then it's not my business, and I won't interfere by declaring it illegal or immoral.

But again, what exactly is immoral about gay sex?
8.9.2008 3:44am