Last week I participated in a discussion sponsored by the Federalist Society at Stanford Law School in California on redefining marriage to include same-sex couples, and its collision with the First Amendment rights of those who define marriage as one man and one woman only. We had a great discussion on some of the cases we have described here, like Elane Photography in New Mexico (who was sued for discrimination for declining to photograph a same-sex commitment ceremony), Jen Keeton in Georgia and Julea Ward in Michigan (who were expelled from graduate school programs in counseling from Augusta State and Eastern Michigan University, respectively, for refusing to change their beliefs that same-sex behavior is morally wrong). 

What I did not expect at Stanford was a debate on the relevancy of the 1967 Supreme Court decision striking down Virginia’s law banning interracial marriage, Loving v. Virginia.   Many who support redefining marriage to include same-sex couples are convinced that this case greatly supports their position.  It does not.  I have found that many people have not read the decision, or do not understand what the Supreme Court ruled in that case.  The decision doesn’t help them.  So it is a dreadfully flawed argument and a non sequitur to argue as many do that ”just as a ban on interracial marriage was unconstitutional, so a ban on same-sex marriage is unconstitutional.”

I have earlier discussed the deficiencies in analogizing a law defining marriage as one man and one woman as the law struck down in Loving v. Virginia. Because so many find the argument persuasive, let me state here what I said to the law students at Stanford:

The Virginia law only banned white people from having an interracial marriage. An African American man could marry a woman of Asian descent under the Virginia law struck down by the Supreme Court.   That interracial marriage was OK because it did not include any white people.  The obviously uneven application of the law based on race is why the Supreme Court struck it down.  These despicable laws did not say, “whites can only marry whites, blacks can only marry blacks, Asians can only marry Asians,” etc., but many wrongly assume that is what those laws said.

Race is different than sex. It would have been unconstitutional too if the miscegenation law said, “whites can only marry whites, and blacks can only marry blacks, ” etc.  But that’s not what the Virginia law struck down by the Supreme Court said.  That hypothetical does not provide any precedent for striking down a regular marriage law.  Even if the law did say that, it’s not important, because race is different from sex.  Only one man and one woman can produce a child, and the parents can be of any race.  Two men together or two women together will never produce a child. So having an opposite sex couple is essential for producing children.  What is critical is having one man and one woman.  The parents’ race is irrelevant in their ability to reproduce.   It is rational, in fact, it is wise for a society to urge men and women to get married in order to produce and raise their children, because they represent the next generation of their society.

Race has never been a universally-accepted element in the states’ definition of marriage. States generally have agreed that people seeking marriage must meet several criteria.  For example, the two people seeking marriage must be a man and a woman, they cannot be married to anyone else, they both must possess the mental capacity to consent to marriage, they cannot be near relatives (like brother and sister) and they both must be above a certain age.  Race has not been a universally-accepted part of the definition of marriage.  For example, not all states banned white people from having an interracial marriage.  Some states, like Virginia, allowed whites to marry nonwhites for many decades before imposing a ban on whites marrying nonwhites.  The existence of miscegenation laws is a sordid historical fact.  The court decisions striking down those laws offer no principle of law that compels legalizing same-sex marriage.

Some states did not ban interracial marriages consistently. Virginia was faced with the dilemma that one of its founders, John Rolfe, married a nonwhite woman, the famed Pocahantas. Virginia resolved this dilemma by making Pocahantas an honorary white person, and exempted marriages (in some circumstances) where a white person married a Native American.

I hope I convinced at least some of the law students at Stanford to stop embracing the false parallel between Loving v. Virginia and the efforts to legalize same-sex marriage.

Back in March of 2010, a federal district court judge in North Carolina ruled that Professor Mike Adams’ columns at Townhall.com were not protected by the First Amendment.  Dr. Adams appealed that decision, gathering support from academic organizations from across the ideological spectrum.  Last week, this effort was blessed with a strong, ringing defense of academic freedom from the U.S. Court of Appeals for the Fourth Circuit.  And so a year after the district court’s opinion, Dr. Adams fittingly announces at Townhall.com today:  “Caution:  This Column Now Protected by the First Amendment.” 

Some told us we should just give up.  Others told us we should simply accept the federal judge’s decision and resign ourselves to the fact that the First Amendment is now dead on our college campuses.  But the Alliance Defense Fund took my case to the United States Court of Appeals for the Fourth Circuit in January.  And, last week, they issued a landmark defense of First Amendment rights for faculty at public colleges and universities.  For the first time in years, I’m getting love mail from liberals.

And after explaining the Fourth Circuit’s decision in a very easy to understand way (which is well worth reading in its entirety), he puts the entire case in perspective: 

This all means that soon my lawyers with the ADF will go back to court to argue for a trial on the facts of my First Amendment retaliation claim. But thousands of professors in the Fourth Circuit – most of whom do not share my views – have already won a major victory. Their free speech rights once again belong to them as individuals – and not to the state that employs them.

You’re welcome.

That is the question that dominated the Society for Personality and Social Psychology at its annual conference, according to a fascinating article in today’s New York Times (also referenced by Inside Higher Ed).  But rather than looking at the usual litany of victims and rounding up the usual suspects, Dr. Jonathan Haidt of the University of Virginia argues that social psychologists discriminate against conservatives.  After polling the audience, over 80% of which self-identified as liberal, he commented: 

Anywhere in the world that social psychologists see women or minorities underrepresented by a factor of two or three, our minds jump to discrimination as the explanation. . . .  But when we find out that conservatives are underrepresented among us by a factor of more than 100, suddenly everyone finds it quite easy to generate alternate explanations.

And this leftist echo chamber has consequences on campus, especially for conservative students, who hide their political beliefs from colleagues who openly assume that everyone—or at least everyone who is considered “intelligent”—is liberal. 

Dr. Haidt’s diagnosis confirms what other studies—some of which the New York Times references—have shown:  that leftists and Democrats vastly outnumber conservatives and Republicans among university faculty.  And it confirms what professors like Dr. Mike Adams and students like Julea Ward have experienced:  if you merely express conservative or Christian views, you will face discrimination, in the form of lost promotions or even expulsion.  

But Dr. Haidt does not just diagnose the problem.  He also explains how it arose:  “social psychologists are a ‘tribal-moral community’ united by ‘sacred values’ that hinder research and damage their credibility—and blind them to the hostile climate they’ve created for non-liberals.”  And to break up this ideological monopoly, he prescribes some good medicine:  hefty portions of National Review and Thomas Sowell.  Hopefully, his message will catch on and the discrimination against conservatives and Christians in higher education will end.  Until then, perhaps we should call his prescription Chicken Soup for the Leftist Soul.

We have frequently written about how academia is far to the left ideologically of the rest of the country and the impact that this has on students.   Still the skeptics remain, but now we have confirmation from that bastion of religious right-wing thought, the veritable Bob Jones University of California:  the University of California-Berkeley.  As highlighted over at Tax Prof Blog (and previewed there back in July), two UC-Berkeley law students recently published a study showing that “law schools overwhelmingly hire liberals as law professors.”  Featured in The National Jurist, the study shows that over 85% of new hires from 2006 through 2009 were liberals.  Even the authors note that this “doesn’t speak well of the intellectual diversity of American law school hiring.” 

Indeed, how can law schools function as the “marketplace of ideas” when one entire side of ideological spectrum is almost entirely absent?  In 1967, the Supreme Court wrote eloquently in its Keyishian opinion about how “our Nation’s future depends on leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.”  It is too bad that our law schools—the institutions that play a unique role in shaping future leaders—do not share the Supreme Court’s vision.

As David French noted a few days ago, Professor Kenneth Howell, a well-respected academic with 2 master’s degrees, 2 Ph.D.s and many years of ranking as one of the best professors on campus, was recently fired from his job as an adjunct professor at the University of Illinois for daring to teach students the Catholic Church’s position on homosexual behavior—in a class called “Introduction to Catholicism”.

We sent the University a letter last Monday warning them that this action violated Professor Howell’s First Amendment rights.  Initially, it confirmed that Professor Howell was fired due to his e-mail to students explaining the difference between utilitarianism and natural moral theory (which the Catholic Church adheres to) in examining the issue of homosexual behavior, which ran afoul of university policy on “inclusivity.”  Later this week, University representatives claimed that Professor Howell had not in fact been fired, that “no decisions” were made as to the class he is scheduled to teach this fall (even though Professor Howell was told specifically by the department chair that someone else would be teaching his class), and that it was convening a committee of the Faculty Senate to examine whether the principles of academic freedom were violated—in late August.    This was, as President Michael Hogan stated, because the University “want[s] to be able to reassure ourselves there was no infringement on academic freedom here.”  Talk about starting the “review” from a predetermined conclusion!

Late Thursday, we received a letter from the University stating that they are “suspending” the decision of his department chair pending review by the committee.  While this is a nice step, this does not resolve the issue.  It is meaningless for Professor Howell to retain his status as an adjunct professor without being able to teach any classes, and the committee’s review of the situation does not change the fact that Professor Howell was relieved of his previously scheduled teaching responsibilities because his instruction to students was deemed not to meet standards of “inclusivity.”  Save for that email, Professor Howell would still be teaching Introduction to Catholicism in the approaching semester.  That is a violation of his constitutional rights, and we have indicated as much to the University in our response letter, sent today.

We have also seen  media reports indicating that the University intends to examine the longstanding agreement between the University and the Newman Foundation to provide an instructor to teach students about Catholicism and Catholic thought in their Religious Studies department.  (Certainly a relevant topic, with over one billion Catholics in the world).   Some reports indicate that the Newman Foundation has total control over who the instructor will be, but this is false according to the agreement between the University and the Foundation.  The agreement specifically states that the University retains control over the selection of the instructor, who is required to meet all University standards and requirements for any adjunct:

Individuals will be proposed for adjunct faculty status by the Newman Foundation, and shall hold appropriate scholarly credentials and shall be reviewed and approved for adjunct status according to the standard procedures for such positions.  The faculty members and courses shall be subject to the same review and supervision by the Program for the Study of Religion as apply to all courses and members of the Program’s faculty.  In turn, the adjunct faculty affiliated with the Newman Foundation shall have the rights and privileges accorded all faculty holding the same positions.

Regardless, this is nothing but a huge distraction.  This agreement is in no way part of the reason why Professor Howell was fired, and moreover, there is nothing wrong with it, as the University retains control over the selection of who is teaching their students. 

In the meantime, UI students are organizing an effort to “Save Dr. Ken.”  They’ve started a Facebook group, are posting flyers around campus and are organizing a boycott of Religious Studies courses.  But as a sad indicator of exactly what happens when universities like the University of Illinois teach students by example that censorship is acceptable and that true discourse on campus must come second to anyone taking “offense,” we have also received reports that some flyers are  being torn down.    We’re hoping that the University takes quick action to restore Professor Howell’s rights, and in so doing, teaches their students what the First Amendment really means.