Writing in February against using laws to discipline those engaged in anti-gay bigotry, the National Review’s Kevin Williamson went for the old libertarian line:
If anything, it is much more likely in 2014 that a business exhibiting authentic malice toward homosexuals would be crushed under the socio-economic realities of the current climate. That is a good thing for two reasons: One is that genuine hostility toward gay Americans is today a distinctly minority inclination but one that still should be challenged. The second is that it is a far healthier thing for that challenge to take place on the battleground of civil society rather than in the courts and legislatures. There is, after all, an almost infinite gradation of moral distinction between the views of well-intentioned people who do not wish to cater a gay wedding because of religious considerations and the odious, malicious position of Westboro Baptist et al. The courts and legislatures are poorly equipped to make those fine distinctions, but civil society has the ability to distinguish between an honorable disagreement and ill will. Americans are generous and good-hearted people who give every indication of being well-disposed toward letting their gay neighbors go about their private affairs with liberty and dignity, independent of what their policy preferences are in terms of marriage and related issues. I trust Americans at large to make the necessary distinctions much more than I trust the political institutions to do so.
When I read this at the time, I bookmarked it for a couple of reasons.
First, the idea that “Americans are generous and good-hearted people who give every indication of being well-disposed toward letting their gay neighbors go about their private affairs with liberty and dignity” is a bizarre one. When cultural conservatives could summon the political power to do so, they legally forbade gay acts with anti-sodomy laws. These laws only came off the book because the Supreme Court eventually struck them down, much to the great and continued horror of cultural conservatives. From that loss, cultural conservatives — including Mozilla’s Brendan Eich — have basically used every tool in their toolbox to fight against gays, whether by defining the laws so as to prevent their marriages or using civil and market power to ostracize them. Americans are becoming more willing to allow gays to “go about their private affairs with liberty and dignity,” but that’s only because cultural conservatives who have never been willing to do that are losing.
Second, and more importantly, I suspected that those who parroted Williamson’s remarks here, and perhaps Williamson himself, didn’t actually believe what he was writing. When the question is whether we should pass laws to sanction anti-gay animus, it’s all well and good to say that we shouldn’t because market coercion (boycotts) and civil coercion (shunning) are much better instruments. This allows you to oppose the legal reforms while still maintaining that you are against anti-gay actions and that you have alternative mechanisms to deal with them.
But will you actually hold consistent in that view when people turn to using the market and civil channels that you said were better suited to the task? Should someone take you up on your suggestion that they use the surgical precision offered by the battlefield of civil society to make these reforms, will you actually be cool with that? It struck me at the time that the answer was almost certainly no: if you are a cultural conservative, you don’t think anybody should be sanctioned for their anti-gay attitudes and actions no matter where that sanction comes from.
And indeed, this is eventually how Williamson shook out on this. When tech people took him up on his advice to use market and civil coercion to stamp out what they judge to be anti-gay malice, he got mad.
And what’s so funny about his anger at the Brendan Eich debacle is just how utterly sloppy it is. In his piece, if you read it, he includes it alongside a whole host of things that are unrelated to it. Recall, he draws a line between using legal mechanisms and using civil and market mechanisms, saying the former are bad and the latter are good. Yet, when he wants to fume about Eich, he lumps legal, civil, and market forms of pressure together and indicts them all at once, this after specifically saying that we should be actively using the civil and market channels!
My favorite paragraph of his piece is this one, which is really peak hack:
The broader campaign of retaliation against gay-marriage opponents is not simply a matter of private citizens’ airing their views about a corporate executive; those private citizens are acting as an extension of, and in at least some cases in collusion with, political agents in positions of official authority who are abusing the powers with which they are entrusted, in order to further private political ends.
You see this? He notes that there are two things going on: 1) private citizens applying market and civil pressure against a CEO, and 2) the use of legal reform to apply pressure against anti-gay animus. Alright, fine. But Williamson thinks (1) is super-awesome, right? So why doesn’t he say that? Why is he globbing all of this stuff together when before his whole point was to draw a clear line between legal channels and civil channels, and actively advocate using the latter?
As is almost always the case on these matters, the answer lies in the fact that people adopt the short-term procedural justice views that satisfy their actual substantive goals. If the topic of the day is using legal reform to fight anti-gay stuff, say that we should use civil and market mechanisms. When people use civil and market mechanisms, group them in with legal mechanisms and say the whole lot is bad. Shift, shift, shift until you’ve made the facially neutral argument about process and freedom that supports your substantive cultural views and your favored in-groups. That’s political writing at its most elegant.