The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It appears that one of George Mason Law School's alumni has proposed the so-called "Sodomite Suppression Act" as a ballot initiative in California. It would, among other things, authorize under some circumstances the killing of gays and lesbians "by bullets to the head" or "any other convenient method" as well as criminal punishments for those who distribute "sodomistic propaganda." The text of the proposed ballot initiative is here.
What is George Mason Law School's response to this reprehensible and crazy proposal? It is simple- "we" (i.e., George Mason Law School) don't have a response, although each of us has the right to express our own views on the matter as we choose. And I, for one, think that's the way it should be.
Dean Daniel Polsby transmitted to the Board of George Mason University the following message regarding the controversy:
Emails to various members of the Mason community have informed us that Matthew McLaughlin, a 1998 graduate of this law school, has filed a ballot initiative in California where he has apparently lived for the past seventeen years. The effect of this initiative, if it were enacted by voters, would be to amend the state's Constitution by enacting a bill of attainder (the "Sodomite Suppression Act"). Among other things, this act would impose the condition of outlawry on gay and lesbian people in California, thus withdrawing from them the protection of law and allowing them to be killed out of hand, by anyone at any time, with legal impunity.
Some correspondents have called upon the law school to repudiate this initiative—and Mr. McLaughlin. With respect, we must decline, as it is not the function of schools or other institutions to denounce things with which they have nothing to do. Law schools are not guarantors of the views or acts of their former students. No one ever suggested that Harvard Law School should repudiate the treason of Alger Hiss, or that the University of Puget Sound law school should disclaim murders committed by Ted Bundy. Responsibility for those crimes belongs to the criminals, not to the schools they attended. The same principle applies here. Mr. McLaughlin must answer for himself, and not we answer for him, concerning what he says or does. Of course individuals, speaking for themselves, remain free to express their own opinions if they so choose.
Another consideration contributes to the conclusion that we should stand to one side. Mr. McLaughlin's filing suggests views that undeniably are out of keeping with the normal civilities of life. But so far as appears, they are also lawful and constitutionally protected expressions. Mr. McLaughlin has a right to say what he wants and to petition the government for redress of his grievances—and it is up to him to determine what aggrieves him. Other people have the same rights and are free to use them in a different way—including to criticize Mr. McLaughlin. And still others are free, for a variety of possible reasons, to refuse to be conscripted into a contretemps that has nothing to do with them. There is real advantage, apart from the principles of constitutional law, in limiting how much one should discourage people from expressing even very revolting ideas if that is what is on their mind. Tolerance of this kind facilitates self-disclosure by those whose hearts are septic with senseless rage. So disclosed, respectable people can see who they are and simply avoid them. But if suppressed, they may nurture their loathing in afflicted silence, even as they continue to mingle freely in the world with less-stricken and unsuspecting souls.
In fact, one California activist is using her First Amendment rights to advocate for the "Intolerant Jackass Act" in response to this proposal (read about it here) which provides in part
c) Any person, herein known as an "Intolerant Jackass," who brings forth a ballot measure that suggests the killing of gays and/or lesbians, whether this measure is called the Sodomite Suppression Act or is known by some other name, shall be required to attend sensitivity training for at least three (3) hours per month for twelve (12) consecutive months. In addition, the offender or "Intolerant Jackass" must donate $5000 to a pro-gay or pro-lesbian organization.
As far as I know, George Mason Law School intends to take no position on the "Intolerant Jackass Act" either.
Some may recall Dean Polsby's similar statement a few years ago regarding a controversy over a student group's invitation to an inflammatory and controversial speaker, which you can read here.