Statement on "Freedom to Marry, Freedom to Dissent: Why We Must Have Both"

Here is a welcome statement, posted at Real Clear Politics, from a ideologically varied group of 60 or so supporters of same-sex marriage, including a number of law professors and other voices known to many MOJ readers. The statement expresses the signers' concern

that recent events, including the resignation of the CEO of Mozilla under pressure because of an anti-same-sex-marriage donation he made in 2008, signal an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree. We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.

We support same-sex marriage; many of us have worked for it, in some cases for a large portion of our professional and personal lives. We affirm our unwavering commitment to civic and legal equality, including marriage equality. At the same time, we also affirm our unwavering commitment to the values of the open society and to vigorous public debate—the values that have brought us to the brink of victory....

So the issue is cleanly presented: Is opposition to same-sex marriage by itself, expressed in a political campaign, beyond the pale of tolerable discourse in a free society? We cannot wish away the objections of Christian, Jewish, and Muslim faith traditions, or browbeat them into submission. Even in our constitutional system, persuasion is a minority’s first and best strategy. It has served us well and we should not be done with it.

I applaud the statement as a supporter of both same-sex marriage and the rights of those who dissent from it.

 

It does seem to me that the arguments for "persuasion over punishment" extend beyond respecting rights of speech and political activity and also support some protection of non-speech conduct as a matter of religious liberty--another fundamental right in our "open society." Thus I wish the statement had mentioned religious liberty as well. At the same time, I don't fault the statement for not going into that in detail, since there is likely less consensus among the signers--as there is in the legal tradition generally--about just how far religious liberty calls for protection of religiously motivated conduct, e.g. in the face of antidiscrimination laws (e.g. protection for churches only, or for religious nonprofits, or for religious individuals in commerce?).

 

I've disagreed with some of the signers over the scope of religious liberty in this area, arguing for broader protection than they do (e.g. here). But I applaud the commitment to liberal values that is expressed in yesterday's statement.