Free Opinions about Same-sex Marriage in Law Schools

Somewhat behind the times, I recently heard about an unusual intersection between law school, free speech, and opponents of same-sex marriage. Various groups of law professors have threatened to boycott the annual American Association of Law Schools (AALS) law professors' conference in San Diego because Doug Manchester, the owner of one of the hotels in which the conference is to be held, has donated $125,000 to support California Proposition 8. That measure would amend the California State Constitution to define marriage as between a man and a woman, essentially overruling by referendum the California Supreme Court's In re Marriage Cases decision that was handed down earlier this year. The Legal Writing Institute went so far as to take the position that attending the conference in that hotel would violate its nondiscrimination policy.

As a significant proponent of California Proposition 8, the LDS Church has a fairly direct connection with this issue. Noting this connection and the inherent tensions it produces with the AALS boycott, George Mason law prof Ilya Somin writes:

The AALS is an organization that is supposed to promote legal education and academic research in a politically neutral way. Taking stands on controversial political issues such as gay marriage is inconsistent with the organization's mission of promoting a free exchange of ideas and education that includes a wide range of viewpoints. If the AALS has an official position in favor of gay marriage (which is what a boycott would amount to), it cannot be a credible neutral organizer of panels, conferences, and academic research on gay marriage-related questions. The same goes for taking positions on other political issues.

Moreover, if political opposition to gay marriage is so wrong that the AALS should forego any economic relationship with those who engage in it, how can it continue to have Catholic, evangelical Protestant, and Mormon schools as members? When it comes to promoting opposition to gay marriage, the Catholic Church and other religious organizations are much bigger players than Doug Manchester. I don't see how the AALS can shun Manchester as beyond the pale while keeping Notre Dame and Brigham Young as members in good standing.

It seems to me that the proposed AALS boycott is both inconsistent and inappropriate.This underlies a problem many LDS law students have faced during law school. The intellectual environment at law schools is not always as open to discussion as it ought to be, and this is particularly true with hot-button issues in the public debate. Noting this dilemma, University of Illinois law prof Larry Ribstein asks several probing questions:

• 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?
  
  . . .
  

• 
  
  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?

The bottom line is that I wouldn't be comfortable expressing that opinion in such a situation. That may be the status quo in law school faculties, but it would be even worse if such an approach was sanctioned by the law schools themselves. Jonathan Adler, blogger and law professor at Case Western Resrve University School of Law put it this way:

[I]t would be unconscionable for a purportedly academic association to endorse the view that opposition to the imposition of gay marriage by judicial fiat, in and of itself, constitutes "discrimination" against homosexuals and that such views are beyond the pale of acceptability within such an organization.

Here's the full analysis from the law professors of The Volokh Conspiracy.