Washington Metro Board Member Dismissed for Anti-Gay Remarks in Same-Sex Marriage Debate:

The Washington Post reports:

Maryland Gov. Robert L. Ehrlich Jr. yesterday fired Robert J. Smith, his appointee on the Metro transit authority board, for referring to gay people as sexual deviants on a cable television show.

"Robert Smith's comments were highly inappropriate, insensitive and unacceptable," Ehrlich (R) said in a statement less than five hours after the controversy erupted during a Metro board meeting. "They are in direct conflict to my administration's commitment to inclusiveness, tolerance and opportunity." ...

Smith acknowledged after the meeting that he had referred to homosexuals as "persons of sexual deviancy" during a political round-table discussion on a Montgomery County cable show that was shown on Sunday.

"Homosexual behavior, in my view, is deviant," he said. "I'm a Roman Catholic." ... "The comments I make in public outside of my [Metro board job] I'm entitled to make," he said. His personal beliefs, he said, have "absolutely nothing to do with running trains and buses and have not affected my actions or decisions on this board." ...

The Metro directors oversee a $1 billion operating budget and nearly 10,000 employees. They set policy for the nation's second-busiest subway and fifth-busiest bus system....

Smith said he has been a regular panelist on the weekly political round-table show, "21 This Week," telecast on Access Montgomery cable Channel 21, for the past 12 years. He appears as a "Republican activist," according to Rodney Bryant, the show's producer.

On last weekend's show, Smith interrupted another speaker who was talking about federalism and Vice President Cheney's daughter. The speaker said Cheney's daughter, who is a lesbian, would not want the government interfering in her life, according to a recording of that portion of the show.

"That's fine, that's fine," Smith interrupted. "But that doesn't mean that government should proffer a special place of entitlement within the laws of the United States for persons of sexual deviancy."

It seems like Smith is the sort of high-level political appointee who can be fired for his speech -- including off-the-job speech on matters of public concern -- with no First Amendment constraints, and with no requirements that the government show any likely disruption that would be caused by the speech. (See generally Elrod v. Burns and Branti v. Finkel, which arise in the slightly different but closely related area of dismissal based on political affiliation.) And I think the Governor's decision may well have been quite sensible, not just as a matter of politics for the Governor but as a matter of public relations for the metro system and for Maryland government more generally.

Nonetheless, it seems to me that this shows that the gay rights movement -- which in many respects I support -- has indeed led, and is likely to continue to lead, to nontrivial burdens on people who hold and express traditional religious views that condemn homosexuality: Here, the firing from a government job that really does have relatively little to do with gay rights matters; in other cases, dismissals by private employers for anti-gay speech; in other contexts, burdens on religious institutions' ability to refrain from assisting conduct (for instance, adoption by same-sex couples) that they think is morally improper; in still others, the exclusion of the Boy Scouts and other groups that discriminate based on sexual orientation in the course of trying to convey their anti-homosexuality message (something that I've argued is a constitutionally permissible burden, but a burden nonetheless).

These burdens might well be justified. Also, on balance they are far less than some of the burdens that gays have had to labor under in the past (such as the threat of prison time for their sexual behavior), and are likely less than even the burdens that gays have to labor under today (such as the threat of being fired for their sexual conduct, in some states prohibitions or restrictions on adopting children, the inability to get permanent residence and U.S. citizenship for one's life partner when heterosexuals can get this important benefit as a matter of course, and so on).

Nonetheless, it seems important to recognize that unfortunately the securing of greater rights to some leads to (not inexorably, but practically) the decrease in the rigths of others. And it helps us understand why those who do not value gay rights highly -- because, for instance, they believe that homosexual behavior is immoral and harmful to society -- would fight hard against expansions in gay rights, and resist claims of the "It's none of your business whom I have sex with, so why are you objection to various gay rights proposals?" variety. The broad gay rights movement, which goes beyond just demanding freedom from legal punishment for homosexuality and equal access to public benefits, does intrude (whether justifiably or not) on others' business, and resisting the movement then in turn becomes those other people's business.

Thanks to reader Mike Chittenden for the pointer to the newspaper article.

Firing a Washington Metro Board Member for Anti-Gay Speech:

I share some of Eugene's concerns, expressed in his post below, that certain aspects of the gay rights movement (which I too generally support) may pose a threat to civil liberties.

But I don't think that the firing of Robert Smith, the Maryland appointee to the Washington Metro Board, for calling gays "sexual devian[ts]" is a good illustration of the point. Certainly, very few would argue that Smith should have kept his job had he referred to people in interracial relaionships as "racial deviants" or used derogatory language about blacks or Jews. And this would be true despite the fact that Smith's views on blacks, Jews, and interracial marriage have no more connection to his job than his views on gays. The political and social views of high-ranking officials often influence their policy decisions, and government could not function with even modest effectiveness if these officials could not chosen at least in part based on their ideological orientation.

Furthermore, it is not clear to me that Smith's views "have absolutely nothing to do with running trains and buses," as he claims. The DC area has a large gay population and many of them presumably take Metro "trains and buses." There is good reason to assume that a Metro Board member with Smith's views would be less likely to enforce policies against antigay discrimination in public transport than one who is not a homophobe. At any rate, since there is unlikely to be a shortage of nonbigoted people willing to take this cushy patronage appointment, Governor Ehrlich was right not to take a risk on Smith.

I will consider Eugene's broader point about the gay rights movement in my next post.

Conservatives, Libertarians, and Slippery Slope Concerns about the Gay Rights Movement:

Although I am skeptical about the particular example that occasioned it, I agree with Eugene's general point that some aspects of the gay rights agenda may pose dangers to individual rights that are important even to people who do hate gays or oppose the gay rights movement as such.

This poses a dilemma for libertarians (and some conservatives) who support the principle of equality for gays but worry about some of the potential slippery slope effects of victories for the gay rights movement. For example, I personally support gay marriage and the abolition of antigay discrimination by government. At the same time, I would oppose imposing similar antidiscrimination laws on the private sector, particularly on religious and civil society groups. And there is a nontrivial danger that those elements of the gay rights agenda that I support will, if adopted, lead to the enactment of those that I oppose.

However, I doubt that the right approach for those concerned about the civil liberties of people with antigay views is to oppose the gay rights agenda across the board. If you do not oppose A in and of itself, but are just concerned that it might lead to B, the right strategy to adopt will sometimes be to make a deal with the pro-A forces, pledging support for A in exchange for safeguards against B. This is an especially attractive approach if A is likely to be enacted sooner or later anyway, but the advocates of A need your backing in order to win sooner.

We seem to be in precisely this position with respect to the gay rights movement, which is highly likely to continue gaining ground, but cannot succeed quickly against determined and united opposition from the right. If conservatives and those libertarians who care more about the civil liberties issues than about gay rights oppose the gay agenda root and branch, then the gay rights movement will owe them nothing and will have no incentive to take conservative or libertarian concerns into account. The fact that most conservatives and libertarians either opposed the civil rights movement (as the National Review conservatives did) or were indifferent to it (as were many libertarians at the time) is one of the reasons why that movement took on such a left-wing statist cast. It is also one reason why most African-Americans support liberal statism even now. The conservatives (and to a lesser extent libertarians) of today are in danger of repeating the mistakes of their predecessors.

If, on the other hand, libertarians and those conservatives whose primary concern is the civil liberties impact rather than opposition to gays for its own sake support gay rights but make that support conditional on providing safeguards for civil liberties, there is a much better chance of a positive outcome for all concerned. In addition to the straightforward quid pro quo bargaining involved, homosexuals and their supporters are more likely to take conservative and libertarian concerns seriously if they do not regard the latter as implacable enemies.

Note that there are two distinct causal mechanisms at work here. One is pure interest-group bargaining: conservatives can persuade gay rights advocates to prevent B in exchange for support for A. But there is also a psychological dynamic under which gays and the political right could develop a more positive (or at least less negative) image of each other over time, thus making it easier to take each other's concerns seriously.

None of these points are likely to persuade those conservatives (and perhaps a few libertarians) who simply oppose gay rights across the board on the merits. But they should provide food for thought to those who generally support gay equality or are indifferent to it, but worry about its slippery slope effects.

The Racism Analogy:

Various comments on my post below have raised the racism analogy -- if we wouldn't worry about the burdens that the civil rights movement have imposed on racists (or anti-Semites or what have you), why should we worry about the burdens that the successes of the gay rights movement may impose on those who are anti-gay?

Well, as I mentioned in my earlier post, one can certainly conclude that the burdens are justified; if that's so, then my point is still relevant, but only as a way to better "understand why those who do not value gay rights highly -- because, for instance, they believe that homosexual behavior is immoral and harmful to society -- would fight hard against expansions in gay rights, and resist claims of the 'It's none of your business whom I have sex with, so why are you objection to various gay rights proposals?' variety."

On the other hand, while I (as I said) support a good deal of gay rights claims, I'm far from convinced that opposition to homosexuality is quite comparable to racism. I hope to have somewhat more on this later (though not a vast amount, since I'm not sure how much beyond the obvious I can add to that debate). But it's not clear to me that, for instance, the Catholic Church should be viewed as tantamount to the Church of the Creator, or even to considerably less militant racist groups. It's likewise not clear to me that the Boy Scouts should be viewed as tantamount to a "whites-only Scouts." (I'm also pretty sure that many people, including those who, like me, oppose laws that would make homosexuality into a crime, oppose the exclusion of gays from the military, and support same-sex marriage, would say something similar.)

Perhaps, even if I'm right on this, the reason for this isn't some logical distinction between hostility to homosexuality and racial hostility, but rather just cultural history: Because the big battles over racism happened some decades before the big battles over gay rights, many otherwise decent groups and individuals still have a blind spot about homosexuality. Then, even if hostility to homosexuality and racial hostility are morally equivalent, those who are hostile to homosexuality may often be decent people who haven't yet caught up to the truth on gay rights, while racists are likely to be generally bad people altogether. Nonetheless, even if that's so, we might still be more concerned about burdening (even in constitutionally permissible ways) these often-decent-but-on-this-wrongheaded people's speech and religious practice than about burdening racist's speech and religious practice.

On the other hand, perhaps my tentative judgment on this is wrong; perhaps the Catholic Church and the Boy Scouts really are morally tantamount to racist organizations. But if that's so, then that just further explains the intensity with which many traditionalists are fighting the gay rights movement: If the essence of that movement is to suggest that traditionalist religious and social groups are morally tantamount to racists, those traditionalist groups have a great deal to lose (whether rightly or wrongly) in this particular culture war.

Why Ever Fire Public Officials for their Views?:

Many people, including some commenters on my most recent post, don't see why we should ever fire government officials because of their political and ideological views. Even if an official is a racist, homophobe, communist, etc., perhaps they should not be fired for this unless and until there is proof that their objectionable views affect their job performance. In some cases, this may well be the right approach - particularly if there is little opportunity for the official to implement his biased views or if the job is an important one and it is hard to find an equally competent replacement.

However, there is good reason to fire officials for their views in at least some situations. In some cases, the "wait and see" approach is simply too dangerous. For example, if a key CIA operative is revealed to be an adherent of Al Qaeda's ideology, it is theoretically possible that he will carry out his duties effectively despite his views (e.g. - perhaps he cares more about career advancement than about advancing his views). But given the grave risks involved, it would be foolish to wait and see. Even where matters of life and death are not involved, the costs of ignoring an official's views might still be high. For example, if we do not fire a racist official in a position to discriminate against African-Americans, he might take actions that expose the government to expensive liability suits and possibly poison the state's relationship with the black community. Even if he is later fired after the fact, the damage he has done might difficult or impossible to repair.

Along these lines, it is interesting that there is far less controversy about hiring officials based on ideological views than about firing. For example, nearly everyone takes it for granted that a Republican administration will appoint mostly conservative officials, while a Democratic one will appointly most liberals. The administration could engage in ideologically neutral hiring and later fire those officials whose views lead them to take actions contrary to the administration's agenda. But few would argue that that is the right approach to hiring in government. If this is true as to hiring, why not firing as well?

Not all officials with deeply objectionable views should be fired. Whether or not do so depends on the likelihood that they can cause serious harm, the difficulty of finding a competent replacement, and other similar considerations. But such firings should not be categorically rejected.

Since I am a professor at a state university, it is inevitable that some readers would like to know the implications of this argument for the hiring of academics at state institutions. In my view, ideologically neutral hiring is far more desirable in academia than in most other types of government employment because one of the functions of academics is to engage in wideranging debate and research, a function that would be undermined by ideological hiring criteria. On the other hand, the job of most other appointed officials is to implement laws enacted by the legislature or carry out the policy agenda of their elected superiors. Thus, for most government jobs, there are likely to be greater benefits and less harm from ideologically based hiring and firing than in the case of professors. Is that a self-interested distinction? Quite possibly. But I still think it's valid!

Is there Enough Libertarian and Conservative Support for Gay Rights for it to Matter?

One major argument against my proposal for a compromise between gay rights advocates and those conservatives and libertarians who are not implacably antigay is that the latter group is too small to matter. After all, everyone knows that conservatives are categorically against anything that seems pro-gay, while libertarians are too small a group to count. Right? Sometimes, however, what we all think we know turns out to be wrong. Conservatives are not monolothic on gay rights issues and libertarians are not as negligible a factor in American politics as they may seem.

A recent Pew survey show that there is considerable conservative support for at least some items on the gay rights agenda. 36% of self-described "conservative Republicans" support allowing gays to serve openly in the military, 30% of Republicans (and 20% of conservative Republicans) support gay adoption rights, and only 41% of Republicans say they "strongly oppose" gay marriage rights. A 2005 survey shows that 41% of Republicans and 31% of self-described "conservatives" support gay civil unions. Perhaps even more surprisingly, the same survey showed that 19% of Republicans and 14% of conservatives actually support gay marriage.

By contrast with conservatives, no one doubts that most libertarians (probably a large majority) strongly support much of the gay rights agenda. However, it is often asserted that there are too few libertarians for this to make a difference. However, as David Boaz points out, various studies have shown that people with a broadly libertarian outlook (favoring strict limits on government power on both "economic" and "social" issues) constitute as much as 20 percent of the population. Only a small proportion of these people are closely familiar with libertarian ideology, but the same can be said of most of those who describe themselves in surveys as "liberal" or "conservative." They too are not sophisticated ideologues, as I have pointed out in my own work on political ignorance. And even if we discount libertarian voters, there are numerous influential libertarian intellectuals, academics, and policy wonks. Many of these people have influence that goes far beyond their fellow libertarians.

There is no denying the fact that most conservatives oppose gay equality and that libertarians hardly dominate American politics. However, it is also the case that there is more than enough conservative and libertarian support for key aspects of the gay rights agenda to make cooperation between some right-wingers and gay rights advocates worthwhile. As I argued in my previous post, gays will need substantial conservative and libertarian support in order to prevail quickly on the issues they care about the most. Conservatives and libertarians will need to negotiate with gays in order to limit the possible harmful slippery slope effects of some pro-gay policies. There is at least a modest-size pot of gold at the end of this particular rainbow coalition. Hopefully, we can go out and get it!