Law Review Review: Throw With Great Force

One of the law professors on the ReligionLaw listserv posted a link to a journal article on SSRN by George Dent of Case Western Reserve University. The article, entitled Civil Rights for Whom? Gay Rights Versus Religious Freedom, reminded me of Dorothy Parker's famous one line book review - "This is not a novel to be tossed aside lightly; it should be thrown with great force." It is, quite simply, one of the worst attempts at legal scholarship I have ever come across, beginning with the very first paragraph:

Disapproval of homosexuality is widespread, deep-rooted and of long standing. Although some cultures have tolerated some homosexual acts, more often they have been condemned. In the West, including America, homosexual acts were often crimes, and society often shunned homosexuals. Many religions denounce homosexuality. For nearly 3,000 years the people of "the Book"-Jews, Christians and Muslims--have deemed homosexuality a grave sin, but disapproval of homosexuality is so widespread that it cannot be ascribed to theology. More likely, most people have an innate distaste for homosexuality.

How many logical fallacies can one commit in a single paragraph? The most obvious is that he seems to think that because something is historically common, it must be "innate." But if one is going to make that argument, why not argue that slavery is "innate"? Of course, people did make that argument for centuries, based upon the very same book he is referring to here. I'm sure Dent has no desire to make such an argument, but his reasoning can be applied just as well there.

He also doesn't bother to define "innate". Does he mean determined solely by genetics? Partially determined by genetics? I suspect he doesn't mean anything scientific at all but rather believes in some sort of inborn soul or conscience that includes specific beliefs and judgements. Either way, his statement is utterly nonsensical. By any definition, the fact that entire societies have bucked that trend and accepted homosexuality - heck, the fact that modern views on it have changed so dramatically in just the last few decades in so many countries - pretty much destroys the notion of anti-gay sentiment being "innate".

But this gets much, much worse. Here's how the paragraph ends:

Put another way, given human nature, heterosexuality can be considered intrinsically better, an aspect of human flourishing. Further, heterosexuality, and especially traditional marriage, have important benefits for society.

The only response one can think to make is "duh." Of course heterosexuality has important benefits to society and is an "aspect of human flourishing." Without heterosexuality, the species does not exist. But this does not logically lead one to conclude that therefore homosexuality is a bad thing. If someone were suggesting making all people homosexual and doing away with heterosexuality, then he might have a point. But that's a fantasy and quite a stupid one at that.

In the last forty years, however, a movement to change the treatment of homosexuality has emerged in parts of the West. This movement first sought only tolerance--the removal of legal burdens on homosexuality and an end to violence against homosexuals. Now the movement demands approval of homosexuality as legally and socially equal to heterosexuality. The demand for approval brings the gay movement into conflict with "traditional" religion.

This sort of rhetoric, really little more than an exercise in polemics, has no place in serious legal scholarship, especially the use of equivocal and undefined language that only confuses the issues. First of all, I doubt the vast majority of gays cares whether anyone else "approves" of them being gay; what they care about is equality under the law, not being treated inequitably merely as a consequence of being who they are. Dent does not cite a single gay rights advocate demanding "approval". And phrases like "socially equal" don't add any clarity at all to his statement.

A key, if not paramount battleground in this culture war is the law. In myriad contexts, from the right of university students to form Christian societies to the treatment by private employers of the gay partners of their employees, the gay movement is pressing for laws to require people and institutions to accept homosexuality regardless of their religious beliefs.

Again, this equivocation between acceptance and legal equality; they simply aren't the same thing. And he equivocates even more in his representation of the issues. No one questions or challenges the "right of university students to form Christian societies"; the only question is whether public universites must give them legal recognition and financial support. That's a very different question than the one he presents. Having the right to do something, as conservatives so often remind us in situations like restrictions on NEA funding, does not mean having government support for doing so (having said that, I still happen to agree with him that religious student groups should get recognition and support from public universities on equal par with non-religious groups and have the same ability to control their membership requirements regardless of the discrimination laws; I've said that and defended it many times in the past in discussion of some of those cases he is referring to).

Likewise, I am not aware of any push anywhere in this country to require private employers to treat the partners of gay employees in any particular way. Indeed, private employers have been way ahead of government in providing benefits for the partners of their gay employees without any legal requirement to do so. And there has been a reactionary movement from those opposed to homosexuality, so far wholly unsuccessful, to boycott those companies that do so.

At the very least, it seems quite strange to mention this, or anti-discrimination laws that bind private employers, as an example of gay rights conflicting with religious freedom. Remember, it is already illegal for private employers to discriminate on the basis of religion in hiring (aside from those employers covered under the ministerial exception). That means that if the owner of a restaurant is a Christian, for example, he cannot refuse to hire a Muslim or an atheist just for that reason. If sexual orientation was added to the list of bases on which one may not discriminate, this would impinge on freedom of religion to precisely the same extent that current anti-discrimination laws do. Thus, if his argument is a valid one, Dent should also be arguing against prohibitions on discrimination on the basis of religion; I'm not going to hold my breath on that one.

Dent seems to return again and again to the notion that gays are economically powerful, apparently because he thinks that undermines the arguments for gay rights; I find that quite bizarre.

Homosexuals have considerable economic and political power; in a free market democracy most businesses and governments will not want to antagonize this constituency. Even religious organizations that consider homosexual acts a sin often eschew discrimination against homosexuals in most spheres, including employment.

Certainly not true of almost every anti-gay organization I can think of, nor of Dent himself. It is quite strange to argue simultaneously that most religious organizations oppose discrimination against gays in employment and that laws banning discrimination against gays in employment are a violation of religious freedom. Also bear in mind that even when private companies add sexual orientation to their corporate discrimination policies, they are often greeted with accusations of "promoting the gay agenda".

And the same thing happens when companies, on their own without any government mandate, offer same-sex partnership benefits to employees. Just yesterday the American Family Association sent out an "Action Alert" telling its members that Walmart was considering offering such benefits and claiming that this means Walmart "has moved from neutrality to actively promoting the homosexual lifestyle." And they encouraged a boycott as a result. So frankly, all this talk of those who oppose homosexuality not supporting discrimination is nonsense.

Yet this war is not amenable to compromise. Again, the goal of the gay movement are not primarily economic; most gays already have above-average incomes. The goal, rather, is approval of homosexuality as legally and socially equal to heterosexuality. Because of the tremendous influence of religion in America, this goal cannot be achieved unless religious groups either surrender and affirm this equality or, at least, those that do not are reduced to a despised minority compelled to keep its views to itself. In other words, the goal of the gay
movement is to confine its opponents in the closet.

More hyperbolic rhetoric; does Dent really think this constitutes sound scholarship? Does the Case Law Review? If so, one can only wonder about the quality of that journal. Here he repeats the myth that gays are economically better off than straights, a myth demolished by Lee Badgett in the 2001 book, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men. But even if he is correct in that regard, it hardly leads logically to his conclusion.

Even if, on average, gays were better off financially than the population, would that logically lead one to conclude that therefore their advocacy of anti-discrimination laws or same-sex partnership benefits must be for some nefarious purpose? It doesn't matter how much money the average gay person has, firing someone just for being gay is wrong, and the fact that one believes it to be wrong hardly requires that they seek to "confine religious groups in a closet." And here again, he engages in that equivocation over acceptance and "social equality" when discussing legal equality.

Since the gay movement's goals are not primarily economic, it cares about the law not so much for its financial impact as for its symbolic or expressive significance. Thus it matters little that only one employee registers for domestic partner benefits at a large university. What matters is that by offering such benefits the university announces to its constituents--students, alumni, faculty and staff--and to the world that it condones homosexuality. Since the prize is a symbol, compromise is unacceptable except, perhaps, as a temporary tactic: anything less than full equality is inferior, second-class status, intolerable.

This paragraph just makes my eyes roll. It's completely and utterly ridiculous. It's as if he thinks that the "homosexual movement" isn't made up of any actual homosexuals, individuals who deserve not to be fired merely because they're gay. Getting a company to agree not to fire gay people is not a symbol, nor does it have anything to do with condoning homosexuality. It has to do with an individual person being treated as a whole person, not defined solely by their choice of sex partners.

To illustrate just how idiotic this argument is, can you imagine Dent claiming that those who think universities should not fire people based on religion, or should not hand out benefits on the basis of one's religion, are only interested in the "symbolism" of the university "announcing" to its alumni and students that it "condones" religious belief? Of course not. That would be a patently absurd argument. And so it is here in equivalent form.

I could go on for the full 100 pages of this article, but there's really no point. All of that nonsense appears on just the first 5 pages. Mr. Dent is not engaged in scholarship here, he is engaged in polemics. What he has written is not a piece of legal scholarship, it's the equivalent of a press release from Focus on the Family and deserves to be taken just as seriously. I can't imagine such drivel being accepted for publication in any serious law journal.