American social and political culture has shifted rather abruptly towards support for same-sex marriage. Many opponents of same-sex marriage have shifted their rhetoric with it. They have changed focus from increasingly unpersuasive primary arguments (such as appeals to religious norms) to arguments that same sex marriage will have unintended consequences threatening the rights of others. They argue that legalizing same-sex marriage will have the effect of oppressing people who wish to exercise First Amendment rights to dissent from it, whether by speech or association.
Here's the problem: in doing so, some opponents of same sex marriage ("SSM" from here on out, because I am lazy) are promoting ignorance and confusion about basic rights by conflating government action, private action, suppression, and response speech. Ignorance — and I know I am going out on a limb here — is bad.
Consider this Bob Unruh column at WorldNetDaily. Now, I realize that some will say I am setting up a strawman by treating WND as an example of anything other than WND. But the Unruh column has a rather comprehensive list of links to stories that SSM opponents actually cite, and a representative sample of what I see as the willful jumbling of speech and action.
Unruh advocates the use of the term "homofascism" to counter the term "homophobia":
Hunt for the word “homophobia” – purportedly a fear of homosexuality – and Merriam-Webster, the ADL, Wikipedia, Oxford Dictionary, The Free Dictionary, the Reference Dictionary and others are ready to provide help.
But look for “homofascism” – the use of homosexuality to bludgeon and batter the religious rights of Christians and others – and the logical resources are silent, leaving it to blogs and others to define.
(As an aside, I've always understood the suffix "-phobia" to encompass both fear — which foes of SSM disavow — and strong dislike or aversion. Most dictionaries seem to support that meaning. I've always thought the argument "I'm not homophobic because I'm not afraid of homosexuals" to be rather dim and dishonest.)
Unruh goes on to offer a long list of links "that show abuse of Christians’ rights" culled from a site called "Defend the Family." The problem with the list is that it collects, homogenizes, and labels as "fascism" a wide variety of legal and social phenomena. Some items on the list are genuine examples of conflicts between the government and the individual — like application of anti-discrimination laws to SSM issues. Others are individual incidents of alleged viewpoint-based violence or threats. But Unruh and his sources mix those incidents with examples of clear protected speech by supporters of SSM and gay rights.
Unruh cites an instance "when a homosexual activist demands a lawyer not be hired because of past support for traditional marriage." But the underlying news story reveals a rather mundane political battle over a candidate's past affiliations. Is Unruh suggesting that SSM opponents would not oppose politicians who have backed organizations that they dislike? Unruh calls out examples of boycotts by gay rights groups. But boycotts are classic examples of protected speech, not fascism. Is Unruh really decrying all boycotts? If so, does he decry them when groups like the Family Research Council and Concerned Women for America employ them in an attempt to enforce anti-gay dogma? Unruh includes instances of gays complaining to the government about treatment by the government's agents in his list of fascism, even though such complaints are classic petitioning activity. Unruh complains about expressions of skepticism about a story of unfair censorship of a Christian, calling it "an LGBT publication desperately and through the use of unrelated arguments trying to convince people that they’re not getting the whole story and that the student harassed the teacher for the teacher being homosexual." But fascism is not characterized by a blogger asking skeptical questions about a news story. The list complains about pressure and rhetoric brought to bear against companies opposing SSM — but does Unruh really think that citizens bringing pressure and rhetoric to bear is fascist? Is it fascist when anti-gay and anti-SSM citizens do it?
Like many abrupt social changes, SSM and associated recognition of the rights of gay Americans will trigger some conflicts between statutory and constitutional rights. Those conflicts involve freedom of association (as when religious student groups wish to maintain religious qualifications for leadership) and freedom of expression (as when an artist's personal views conflict with the anti-discrimination laws of her state.) These conflicts are best discussed openly and honestly with an eye on the actual legal principles presented.
SSM and gay rights also triggers much mere disagreement, rhetoric, and social consequences for proponents of both sides. That is not a conflict of constitutional dimensions. Nor is it anything like fascism. That's the marketplace of ideas, functioning as intended. By mixing up government action and private speech, Unruh and WND are indulging in the trope that speech is tyranny — as WND has done before. But speech is not tyranny. Speech is what we have instead of tyranny. When you speak, and your fellow citizens disagree with you, that disagreement may take the form of condemnation and ridicule. But that's their free speech and does not impede yours. Suggesting otherwise — suggesting that condemning homophobia is comparable to threats or violence or government action — willfully promotes ignorance about basic civic principles.
We should condemn, investigate, and prosecute true threats and political violence. We should think carefully about the ongoing conflict between anti-discrimination laws and freedom of speech and association — a conflict that won't go away if we pretend it doesn't exist. But we shouldn't take anyone seriously if they suggest that being called a bigot is like being a victim of fascism.
Last 5 posts by Ken White
- Cracked Drunkenly Paws At Free Speech Theory Again - December 5th, 2016
- Update on The Popehat Podcast - November 30th, 2016
- Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos - November 29th, 2016
- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016