As Heidi might say, I've achieved positive goat flow today. In an admittedly harsh form of sarcasm, I've incited Chris Geidner (of and De Novo) to quite remarkable lengths of vitriol. In the course of his attack, he manages to claim I have "no position other than that to take a position is bad;" that I do not "get it;" and most amusingly that I am the law-school blogosphere's equivalent of John Kerry. One really must reply to anything this amusingly absurd, although it's tempting to alert the Kerry campaign as well: they really must fire their image consultants. In any event, I can't remember when last I wrote a proper fisking, and I'm probably out of practice. Since this kind of flamewar tends to bore people unless it involves such liminaries as Professors Volokh and Bainbridge, I'll put it in a cut. Less political readers can skip to the lifestyle entry above.
So, to begin with Mr. Geidner's opening remarks:
Tony, in comments, wrote: "It must be quite wonderful to be so morally superior..."
I, in a snit, responded: "You have no idea."
As in all things, context is key. Remember that Mr. Geidner is a man who has made quite a name for himself by attacking relatively well-respected, and not at all anti-liberty, academics like Lawrence Tribe
and Eugene Volokh
for the mortal sin of having taken their opponent's arguments seriously. In so doing, they have apparently provided succor to the enemy, confidence and assistance to the untouchable, placed themselves in grave moral peril, or somesuch other vileness. Usually what they were doing was either admitting that an argument had some force, even though the conclusion might be invalid, or merely stating empirical fact. In neither of the cases above were they making particularly vague conclusions against gay marriage per se
My comment was one of a line of such responses to Mr. Geidner's more than commonplace assertion that those that he opposes share certain moral, emotional, or mental states, most commonly hatred or fear. A typical comment of mine, for instance, pointed out that in saying that he does not understand how one of his adversaries can hold a certain position, he states more about himself than the adversary.
In any event, what follows in his piece is what I suppose is intended to be a rather personal attack. It falls afoul of my own rule, which is that a man can be measured by the caliber of his enemies: if Mr. Geidner truly felt so little can be learned from my words, one seriously wonders why he bothered to spill the ink necessary to reply. This isn't the first such attack, although it's certainly the most naked. In any event, as seen below, it seems wholly unconvincing.
It was true, though, Tony doesn't have any idea. Tony is the law-school blogosphere's very own John Kerry (or at least the Kerry we are made to believe exists). He waffles constantly, trying to mold the perfectly inoffensive position: He's not against "gay marriage," but Lord forbid anyone try to enforce an existing inequality in marriage laws.
Now, a 'waffle' is generally a change of position, and so I'm a bit mystified here. While my first encounter with my present position, that gay marriage might be resolved by simply dissolving civil marriage
, was admittedly dismissive of the idea, I have grown to be quite an advocate of it. Nonetheless, that would hardly be a 'waffle,' given that the change has been remarkably consistently in one direction and was mostly solidified long before I ever hit Mr. Geidner's radar.
What I will sometimes do is make the arguments of Mr. Geidner's opponents, though I'm usually remarkably clear when I'm doing this. I'm particularly apt to take such a position when I think that those which do hold such a position are expressing themselves poorly, or representing their view badly: Mr. Geidner can be a strong, and at times unfair, advocate, and deserves the opposition. But while this might be considered many things--lawyerly, for instance--it hardly represents waffling.
Now I have accused Kerry of being disingenuous on his website by rather strongly tailoring his responses to certain constituencies. But not only isn't this waffling, but it certainly can't be what Mr. Geidner would dock me for, unless he's insinuating that in some dark, hidden place upon the web I meet with conservative allies, remove my mask, and speak my true heart in my true voice: that what I'm saying here, on his site, or De Novo is some consistently palatable cover. (And if so, what a failure I am! It obviously hasn't been overly easy on his palate.) I mention it only as a colorable interpretation as to what he might have meant, because otherwise I admit to being perplexed by an accusation of waffle.
What Tony doesn't get, and why the Kennedy-Dante interpretive quote ("The hottest places in hell are reserved for those who, in times of great moral crisis, maintain their neutrality.") was up for a while, is that I do believe the equality is morally superior to inequality -- just as IrishLaw believes her religious beliefs would lead to a more moral life. Social issue debates especially (although some economic debates get pretty wild), when debated by those who care deeply, are almost redundantly going to involve people with strong moral authority (at least in their mind, as well as the minds of their allies). Tony, on the other hand, is the embodiment of Shakespeare's thought: "full of sound and fury, signifying nothing." You can debate him, listen to him, and even try to learn from him, but he'll take you nowhere.
He has no position other than that to take a position is bad.
I assume that any reader of this blog will agree that if there is one thing I am never short on, it's opinions. An accusation otherwise is simply preposterous. As for where reading me will take you, well, I suppose I should be flattered at the amount of verbiage Mr. Geidner has expended to inform you that this particular emperor wears no clothes. I do not tend to need to post quotes on my blog to prove just how strongly I must dismiss someone. 
But to get to the substantive point: unlike Mr. Geidner, I am not an activist when it comes to homosexual rights. That is to say, to me Lawrence v. Texas enforced a preference of certain Justices for a policy outcome, and I certainly don't agree that anything sexual is a constitutional 'right,' as unwise as any prohibition might be. Whilst Mr. Geidner sees sexuality as something essential to an individual's identity, I believe that the fact that one can choose not to engage in eros places sexuality on par with smoking or drinking as elements of identity: something from which one can abstain. 
This leaves me in a position more favorable than Mr. Geidner: I can see in the issue of gay marriage compromises between parties who hold strong views, and one at which 'rights' are not at stake, an issue on par with bans against smoking. The belief that I do hold fast on is that legislatures are, all else equal, generally better institutions for settling political issues, and that courts are in general better issues for settling particularized disputes. On the other hand, I tend to look at those of moral certainty and, distrusting with the knowledge of the fallen that anyone has that kind of lock on virtue, seek doubt.
These positions have been constant and consistant, while issues of whether one should have a 'right' to marriage have admitted of compromise. Of course, the fact that it may also lead me to back a Federal Marriage Amendment whilst not particularly caring that much about the actual issue of whether homosexuals marriage--not out of callousness, but simply because unlike Mr. Geidner I believe other larger issues are at stake--means my positions "verge on disingenuous."
Nonetheless, the above are positions, and not merely negations of them. Further, they admit of reason, which requires an answer, not merely a dismissal because they inconvenience one's preconceptions of one's opponent's moral stature. Of course, most of what I criticize Mr. Geidner for is his casual ascription of motivations and his more than casual dismissal of other's arguments, as opposed to his own substantive points, which are normally quite lucid.
When he writes about how people shouldn't use certain words and are "devaluing" them, it's clear he just doesn't get it. If having a president who wants to write your love -- the value and experience that many people place most highly in their life -- out of the Constitution isn't a good time to use words like "anti-gay" and "hateful," then (outside of physical assaults) I don't know if there is a time when Tony would find such words appropriate.
Let us leave aside the point that it might indeed be wise to reserve 'hateful'--a powerful word indeed--at least for those who advocate political assaults, if not for the assaulters themselves. Hatred of the sort Mr. Geidner describes is also a sin, a moral failing, and a mental state negating dispassioned reason: one whose arguments are truly motivated by hate need not be considered, except of course as to how one counters their consequences. Using it otherwise is to devalue 'hatred' to 'dislike' or 'disapproval.' To describe a point of view as 'hateful' is to casually state that one need not engage it with reason. 
Exactly the kind of engagement, of course, Mr. Geidner hasn't bothered with. The answer to his question is contained in a reasoned analysis of his own text. First of all, the FMA contains not a jot about love, else it would be the Federal Love Amendment. Hell, even anti-sodomy laws contain not a jot about love, but sex acts, which as many folks waking up with a hangover attest can have little to do with amour. So long as I'm willing to give my opposition the benefit of the doubt about their motivations, I simply assume that they don't think marriage is necessarily about love, at least as Chris is defining it.
(As I've pointed out before here and elsewhere, I hardly hold the patent on that idea: I magpied it from C.S. Lewis and Chesterton, among others. It's not unlikely many FMA supporters have read the same and hold similar views.)
Similarly, whilst love may be 'the value and experience that many people place most highly in their lives,' perhaps those who support the FMA do not share that view. A view does not become irrational simply because it disagrees with something valued by many.
So long as a rational position--even one I disagree with--exists from which a person can stand on any side, on any issue, I avoid ascribing moral failings to my opponents, unless they admit of them themselves.  There's two good reasons for this: first of all, I've lived long enough to know that most people don't do things because they truly believe them to be wrong or hurtful: evil is a rare--and vile--commodity and another term not to be devalued. Secondly, not casually describing my opponents as filled with hate means that I can talk with them--a prerequisite for changing their mind. Given my love of legislatures rather than judiciaries, it's sort of a prerequisite of my own faith. One seconded, I see today, by none other than President Bill Clinton:
Most of the people I've known in this business, Republicans and Democrats, conservatives and liberals, were good people, honest people, and they did what they thought was right," Clinton said. "My experience is, most of the people I've known in this work are good people who love their country desperately.
There follows in Geidner's article a discussion of how many times the word 'homophobia' appears in his text on Lawdork. Although it's a reference to my piece here
, it's wholly irrelevant, as well as slightly incorrect: the word appears more than eight times, precisely where I said it does--in the comments of Chris's readers, who do not always share his discretion. But that digression brings us to one of his more interesting points:
The point of this list is that, like Tony, I do believe in careful word choice and usage. We just disagree about inequality and discrimination: I think it's an inexcusable problem we should work constantly to eradicate, and Tony thinks otherwise.
The only explanation for Tony's position is that he sees marriage for gays and lesbians as, for lack of a better phrase, a special right, whereas I see it as inequality that needn't -- and shouldn't -- wait for a Legislature (and a roughly a majority of people) to approve.
In a less charitable mood, I might may hay out of the fact that in only few paragraphs I've gone from having no position (other than that any position is bad) to having a position he takes issue with, but let's choose to believe that this is intentional, and mere hyperbole in his accusations. It is more charity than he chooses to give the difference in our opinions.
We differ not in whether discrimination is something we should work constantly to eradicate, but merely how one should eradicate it. After all, we could work to eliminate discrimination by the simple expedient of executing all those who believe discrimination is tolerable, or if that's too extreme for one's taste, by sending them to rather brutal re-education camps a la Clockwork Orange. Chris would, I'm willing to believe, balk at this. I hope he would be willing to believe, on the other hand, that I might engage a friend or family member with actual discriminatory views in discussion and debate, in the hopes of changing their own mind, as opposed to doing absolutely nothing. Which means that we disagree as to the means appropriate to use: I would stop at the judicial imposition of 'rights' not agreed by the popular will, whilst he would choose to trust in three, or four, or however many berobed men and women of legally-trained acumen. This is a question of process, not policy.
Similarly, he knows full well that I see marriage for anyone as a special right, that civil marriage is an institution that evolved to suit certain social needs that are likely now less than relevant--mostly developing on a primarily religious institution. The common argument that marriage isn't 'for the family' because those who are sterile can marry is, to me, facile: I'd be perfectly willing to say that those who are sterile or do not want children can't marry as a constitutional matter. The fact that until recently such a rule would be nearly impossible to administer (lack of technology), would cost more than society wished to bear, and has neither historical, traditional, or practical roots simply means that such a proposal is unlikely to come up, and unlikely to command respect if it did.
Supposing that [someone]  were to wave a magic wand and make marriage an institution solely for homosexuals--and that it had historically been so, such that there were popular assent--it would be perfectly within constitutional logic so far as I'm concerned, even if it were unwise. I wouldn't vote for such a law either: a non-waffly position perfectly consistent with my others. Chris, of course, knows this, but doesn't it make me sound so much more like a gay-basher if you can hint that I think there shouldn't be 'special' rights for homosexuals?
What it comes down to, as I've said before, is that one's credibility relies on treating one's opponents fairly: don't dismiss them, don't misstate them, don't cast aspersions on their characters, don't call them stupid unless they're factually wrong. I try to live up to that, and while I'm not always successful, at least it's the goal. Admittedly, the line which started this all off, "It must be quite wonderful to be so morally superior," was quite snide. But then, Mr. Geidner's insistence on maligning not only the opinions but the moral character of those who are my allies--I am still a Republican--does get my own goat on occasion.
: (It's worth pointing out, as well, that it was I who corrected Mr. Geidner's 'interpretation' of Dante. Kennedy was pretty much making it up in his quotation, because the indecisive do not even enter Dante's Hell: "They are mixed with that repulsive choir of angels … undecided in neutrality. Heaven, to keep its beauty, cast them out, but even Hell itself would not receive them for fear the wicked there might glory over them.” The 'hottest places in hell' are nowhere near the gates, much less outside them. Hey, I named this blog for a reason.)
: For the avoidance of doubt, let me emphasize that I'm not merely including homosexual sex in this category. The fact that Catholic priests, many Buddhist monks, and most other aescetic orders mandate the exclusion not only of physical acts of love but the resistance to physical and mental desire leads me to place sex on the same level as smoke or drink. Many of my contretemps with Mr. Geidner have arisen from his insistence that one could not base any prescription against homosexuality on the basis of disapproval of the conduct without simultaneously disapproving of the individual, and his resulting assumption of another's 'hatred.'
: The phrase he used was, "His twists and turns verge on disingenuous in my mind and to others represent brazen attempts at hiding his true opinions.". To which I can only say, Chris, have the courage of your convictions: either call my motivations into question, or do not question them. Such an "almost" is too little an accusation to defend against and yet most certainly not a compliment, unless one for low and snake-like cunning. Full of sound and fury, indeed.
: Of course, Mr. Geidner may mean that such a thing is hateful to him, but in that case he'd be placing himself beyond reason by the same token. Or, if it is to be taken to be noble or virtuous--akin, I suppose, to a righteous wrath--then it does indeed devalue the word.
It is also possible, of course, that Chris means this in the odium abominationis way, but given his general discounting of 'hate the sin, love the sinner' or status/act distinctions, this is a stretch I'm not tempted to make. I am prepared to be corrected on that point, however.
: If you wear a shirt saying, "FAGS GO HOME," for instance, I'm pretty willing to call that hateful: any non-hateful interpretation of such a shirt either strains credulity or accuses the wearer of being an incredibly poor communicator. Though who knows, I might give them a listen to see if there is some rational explanation. Costs me nothing. There's a big difference between this and accusing Bush of "travel[ing] around the world asking the Catholic Church to provide anti-gay fuel to his hateful fire..."
: The original to this post had 'Fairy Godmother', since I was remembering seeing Shrek with my girlfriend. However, I figured in context this might be misinterpreted. Then I tried 'wizard,' which gets mixed up in the whole Klu Klux Klan power heirarchy. I briefly considered Harry Potter, but for all I know some other interest group is busy appropriating him, and with my luck it would somehow be the Republican Party or someone similarly embarassing. So I gave up. Bloody annoying, that.