Stanley Fish, not usually one of my favorite commentators, has written an excellent Op-Ed piece on the recent supreme court decision regarding the Christian Legal Society and its conflict with the Hastings School of the Law in San Francisco. His commentary, along with an amazing series of reactions by bloggers around the country, can be found here. For Fish’s review of the controversy created by his column, click here.
His argument, with which I substantially agree, is that neutrality is very hard to achieve in a public institution, and often measures taken to insure neutrality backfire, and suppress the rights of groups that don’t fit into normal “liberal” categories. The CLS, in his opinion, is a group that doesn’t fit very well in a “liberal” society, largely because it not only has an orthodox theological commitment but also a commitment to what might be called “orthopraxy,” or right practice, specifically in the matter of sexual ethics. Thus, in Fish’s opinion, the CLS didn’t receive justice in the supreme court decision under review.
At another point, I’ll comment about the arguments on both sides, and explain why in this case I side with Fish (and Alioto) on the arguments in question.
In my initial take on the controversy, however, what is amazing to me is the nature of the response to Fish’s article.
I would say that more than half of the responses are “ideological,” and depend almost entirely on the responder’s prior position on gay and lesbian issues.
Those who support the “liberal” take on sexual issues tend to take their stand on the principle of equality, while damming the opposition with charges of bigotry. Those who might have a more “conservative” take on sexual issues tend to argue on the logical merits of the case, while exhibiting a variety of interpretations about what exactly the logical merits might be.
In the exchanges I read as of last night, I would say that the conservatives made a realistic effort at discussing the matter in terms of the logic and history of court decisions in this country, and appeared more technically “reasonable.” But the liberals were winning the debate emotionally, because no one was able to challenge them on whether or not the principle of equality applied in this particular instance.
Sophistry is a live and well, as we can see from the way in which the debate over Fish’s article has been conducted. But the other thing that can be seen in this debate is that where there is no common grounding in deeper agreed upon principles, things degenerate into a simple conflict of power, a sobering phenomenon in our current political culture.
This situation, as a number of commentators have noted, is deeply troubling for the future of the democratic way of life in a liberal culture, for such a culture can’t endure forever in a state of deep conflict.
For Fish’s reaction to the controversy created by his column, click here.
