Just a thought here. The illiberality of the gay-rights movement in driving one of the top tech scientists from his job because of his private opposition to gay marriage may work to the benefit of religious liberty. Let me explain. Supreme Court Justice Anthony Kennedy has been the key justice in decisions expanding gay rights (Lawrence in 2003, Windsor in 2013). He is known to be broadly libertarian in his legal thinking, which undergirds his pro-gay jurisprudence. But I was recently told by a well-informed SCOTUS watcher that Justice Kennedy’s libertarianism also makes him sensitive to the protection of free speech, especially religious expression.
Conor Friedersdorf, a passionate proponent of same-sex marriage rights, lays into Mozilla’s cowardice here, and into those who pushed for Eich’s resignation, saying that it’s going to have a chilling effect on political discourse:
The [Mozilla] statement continues, “our culture of openness extends to encouraging staff and community to share their beliefs and opinions in public.” But this forced resignation sends exactly the opposite message: that if you want to get ahead at Mozilla, you best say nothing about any controversial political issue, which could affect your career, whether now or years from now in a changed political environment.
Mozilla says, “While painful, the events of the last week show exactly why we need the web. So all of us can engage freely in the tough conversations we need to make the world better.” Again, Mozilla’s actions will undercut tough conversations by making fewer people willing to engage in them. If you believe that an open, robust public discourse makes the world better, as they purport to, they’ve made the world worse. This action is a betrayal of their values, not a reflection of them.
Watching what happened to Brendan Eich, and how intolerant and illiberal the gay-rights side can be, ought to be a wake-up call to Justice Kennedy as the High Court moves toward legalizing same-sex marriage. I don’t expect that there’s anything the Court can do — or should do — to protect someone like Eich or his company from the market consequences of their actions. But Justice Kennedy (and his eight colleagues) should not be deluded about the climate of hatred and intolerance that exists among some on the leading edge of the gay-rights movement. The idea that the only people whose lives this struggle touches in a negative and unjust way are gays and lesbians simply isn’t true. Though I think all of us expect that SCOTUS will legalize gay marriage, ratifying in law society’s growing acceptance of same, I think the Eich case will be a slap in the face to Justice Kennedy about the need to carve out a substantial and clear zone of religious liberty in the decision.
That will do nothing about the culture, of course, and wouldn’t save the job of Brendan Eich or anybody else in his position. But it would be something. If traditionalists can at least keep their institutions intact, they may be able to weather the long defeat.