Friday, March 22, 2019

Friends with odious beliefs

Andrew Koppelman

It is sometimes painful and isolating to be a conservative student at a liberal law school.  This is bad news for the left.

A few months ago, Yale Law School’s Federalist Society invited a speaker from the Alliance Defending Freedom, which successfully argued the Masterpiece Cakeshop case in the Supreme Court.  The invitation was condemned by multiple student groups, some officers of the Society received angry emails, and there were protests during the event.  Some students said that people who agreed with ADF should not be admitted to the law school.

One of the Federalist Society leaders, a conservative Christian student, has now published a cri de coeur about his law school experience, which (aside from this episode) has, he says, involved persistent bullying and denunciations by progressive students.  “I came to Yale Law School feeling optimistic and grateful for the opportunity. I knew that I would be in the intellectual minority, but I hoped that I could reasonably disagree with and learn from my peers. . . . I am deeply disappointed.”  He describes the reaction to the ADF invitation as "over-the-top even by Yale standards." 

Prof. Mark Tushnet correctly responds that the reaction “looks a lot like counter-speech to me, and there's no indication that the protests and support groups interfered with the ability of those attending the event to hear what the speaker had to say. . . .  I look forward to finding out if this episode enters the canon of conservative stories about limitations of free speech on campus.”

But there’s still an ethical problem.  Counterprotests are fine, but no one should leave law school feeling bitter and alienated.  And of course Yale isn’t the only place where this sort of thing happens.

Free speech includes the right to say things that no one should say.  The students who treat conservatives this way are within their rights.  But they are hurting the law school, they are hurting their fellow students, and they are hurting their own legal education.  They are also leaving the impression – more than the impression, the knowledge, based in bitter experience – that people on the left are unkind and vindictive.

I’m on the political left myself, and I’ve been a gay rights advocate for many years, but I think the Yale Federalists were right to invite the ADF.  It is an influential litigation organization.  I happen to disagree with it on a lot of issues, including Masterpiece.  It has been on the wrong side of pretty much every gay rights question that the courts have confronted.  Debate about fundamentals is what a university is for.  John Stuart Mill pointed out long ago that, in order to respond fairly to arguments with which one disagrees, one “must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them.”

If you want to fight the ADF – I do – then you have to learn to turn the chessboard around and anticipate what they will say.  That skill, more generally, is what lawyers are supposed to be good at.  The last thing you should do, if you’re a law student, is refuse to hear someone whose arguments you can’t stand, particularly someone who has successfully litigated against your own view. 

Prof. Michael Simkovic argues that the invitation to ADF was beyond the pale because it “has been identified by mainstream media organizations and the Southern Poverty Law Center as a hate group because—unlike some religious groups that have misgivings about the theological acceptability of homosexual acts—this group has advocated for criminal prosecution of homosexuals by secular authorities at least as recently as 2013.”  He argues that this “entire unfortunate turn of events could have been avoided if the Federalist Society vetted its speakers more carefully and favored substance over shock value.  There are plenty of other highly capable lawyers who can argue effectively for religious freedom in situations that challenge progressive views of gay rights, and who are not associated with any actual or suspected hate groups.”

The once admirable Southern Poverty Law Center has unhappily devalued its currency by using the label “hate group” way too freely, assimilating peaceful litigators like the ADF with violent racist militias.  The ADF isn’t a bunch of skinheads with guns.  It represents a major force in American public law.  Students need to know what its lawyers have to say for themselves.

The ADF‘s views about gay rights are awful.  They are gravely and tragically wrong.  It is deplorable that they believe what they believe.  They should be ashamed of themselves and repent.

But a person can’t help what they believe.  That’s also true of the Yale Federalists, if any of them happen to agree with the ADF’s views.  Treating them badly because of what they believe doesn’t change their minds. If you’re one of those students who join the boycott and the shunning, not only don’t you get to hear from the ADF speaker, you also don’t get to talk to your fellow students, who are likely to be bright people from whom you could learn something.

To turn to a more common example of ideological shunning, a number of people have told me that they’ve ended friendships over the Trump question:  “I can’t stay friends with someone who supports that guy.”  I despise Trump too, but I don’t get it.  You break off the friendship, Trump remains in the White House, and now you have one less friend.

I’ve gotten to know many opponents of same-sex marriage, often after publicly debating them.  Not only have they helped me sharpen my arguments.  They have been fun to talk with.  I like them.  I think they’re horribly mistaken, with pernicious views that harm people.  I feel contempt and pity because they can’t see that they’re wrong.  But of course they feel the same way about me.  So what are we supposed to do?  What can we do, except keep talking?

I like to think that we on the left are the reality-based community.  We don’t run away from inconvenient truths like climate change.  We believe in science and history.  Yet truthful information about what our opponents believe is treated like some vile contaminant, to be avoided whenever possible.  Ignorance is virtue.  But the reality is that these people exist.  They honestly think what they think.  The only way to know what they think, and why they think it, is to talk to them. 

There are costs to the Trumpian technique of building social solidarity by singling out a class of despised others for collective hatred.  Shutting these people out also deprives us of a distinctive intellectual pleasure, one worth cultivating a taste for.  It is fascinating to discover, in detail, how such smart people can believe such silly things.  It’s one aspect of our strangely complex and weird world, like black holes and luminescent squid. 

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