There Should Be No ‘Punishment’ Phase When a Culture War Ends

Dozens of supporters of gay
marriage, including many noted journalists and scholars, have
signed on to a statement today calling for an end to the kind of
public outrage that haunted ex-Mozilla CEO Brendan Eich when people
discovered he once donated money to the opposing side.

The full statement is posted at Real Clear Politics,
and the signatories include many names recognizable here at
Reason:
Jonathan Rauch, Paypal’s Peter Thiel, Eugene and Sasha Volokh
(and other contributors to The Volokh Conspiracy), Andrew
Sullivan, Charles Murray, Reason Contributing
Editor
Cathy Young. The letter calls for advocacy and debate, but an
end to retributive responses to those who have opposed (or still
oppose) same-sex marriage recognition. In the section titled
“Disagreement Should Not Be Punished,”
they argue:

We prefer debate that is respectful, but we cannot enforce good
manners. We must have the strength to accept that some people think
misguidedly and harmfully about us. But we must also acknowledge
that disagreement is not, itself, harm or hate.

As a viewpoint, opposition to gay marriage is not a punishable
offense. It can be expressed hatefully, but it can also be
expressed respectfully. We strongly believe that opposition to
same-sex marriage is wrong, but the consequence of holding a wrong
opinion should not be the loss of a job. Inflicting such
consequences on others is sadly ironic in light of our movement’s
hard-won victory over a social order in which LGBT people were
fired, harassed, and socially marginalized for holding unorthodox
opinions.

During the debate over whether what happened to Eich was
appropriate—and very frequently in the debate on recognizing gay
marriage itself—supporters of how the conflict ended with Eich
stepping down invoked interracial marriage. Would we have supported
Eich if he was opposed to interracial marriage? How is opposing
same-sex marriage different from opposing interracial marriage?
Indeed, the issue was immediately raised in the comment
thread after signatory Dale Carpenter
posted an excerpt at The Volokh Conspiracy. Should a
CEO opposed to interracial marriage be immune from any sort of
consequences from such a position?

Since the laws against interracial marriage were struck down so
many years ago, it’s appropriate to respond: Who, actually, was
punished for being on the wrong side of that debate? Did people who
opposed race-mixing lose their jobs for supporting the wrong
candidates? Can anybody point to CEOs who were fired back in the
’60s or ’70s for supporting some racist candidate somewhere? I have
done a bit of a stab at trying to track down any info that such
outcomes happened, but that would seem to take a lot more time than
I have as a blogger.

To the extent that those particular civil rights battles ended,
I don’t recall there being a punishment phase afterward. The
battles were certainly punishment enough. Those people on the wrong
side—and there were millions of them—didn’t go anywhere. They
continued on with their lives under new laws and probably most of
them eventually came around on the issue, or at least kept it to
themselves. Winning a culture war isn’t like winning an actual war.
You’re not stopping an invasion (or initiating one). When the war
is over, the participants are still around and they still have to
negotiate a way to live together. That realization is why the end
of a culture war simply can’t have some sort of Nuremberg Trials.
There isn’t an equivalent. You have to live next door to people who
may have extremely different views from yours. Sometimes, those
views were actually the majority view at one point. If you try to
initiate a punishment phase, why would your opponents then agree to
stop fighting and accept your victory?

Nobody who knows the history of the gay movement in the United
States should countenance people being punished by their employers
for the way they express themselves, unless they value revenge more
than liberty (some probably do, sadly). The conclusion of the
letter notes:

LGBT Americans can and do demand to be treated fairly. But we
also recognize that absolute agreement on any issue does not exist.
Franklin Kameny, one of America’s earliest and greatest gay-rights
proponents, lost his job in 1957 because he was gay. Just as some
now celebrate Eich’s departure as simply reflecting market demands,
the government justified the firing of gay people because of “the
possible embarrassment to, and loss of public confidence in…the
Federal civil service.” Kameny devoted his life to fighting back.
He was both tireless and confrontational in his advocacy of
equality, but he never tried to silence or punish his
adversaries.

Now that we are entering a new season in the debate that Frank
Kameny helped to open, it is important to live up to the standard
he set. Like him, we place our confidence in persuasion, not
punishment. We believe it is the only truly secure path to equal
rights.

The tragedy was not that this sort of workplace treatment
happened to gays and lesbians (or that it still happens). It was
that it happened to anybody at all.