Amendment 2 Debate with Westboro Baptist

Jose Gabilondo

October 26th, 2008

The following is a guest post by Associate Professor José Gabilondo, faculty adviser to the Stonewall Legal Alliance at Florida International University’s College of Law, which recently hosted a debate on Florida’s Amendment 2 with Marge and Shirley Phelps, of Westboro Baptist Church.

Hi there. I’m the faculty adviser to the Stonewall Legal Alliance and the person who debated Marge and Shirley Phelps today, whom I had never met before. As it turned out, today was no circus and, instead, obeyed the ordinary rules and expectations of university exchange. Although I plan to write a more extended essay about the debate and the underlying issues and am, in fact, presenting on it at Wake Forest Law School next week, the commentary on this blog is so thoughtful that I did want to share some preliminary thoughts.

First of all, the Stonewall group really did reach out to several local and national proponents of Amendment 2, so let me reject in the most strenuous way the idea that their inviting Westboro was a crutch for what Stonewall or I feared would be a weak argument against Amendment 2. The students had no money to pay the expenses of any speaker, so their choices were limited. It was very important to them that the event include some kind of juxtaposition of views, in addition to the panel scheduled for the afternoon. The Stonewall students worked very hard on this event and it pained me (and them) to see them criticized and, at times, even ridiculed in this way. I was willing to participate in the debate because it relates to my research on the role of law in how heterosexuals come to see themselves (heterosexual subject formation) and a current article on how new Right operatives have made what are really reactionary views come to seem “conservative” by co-opting liberal ideas like “balance” and “diversity” for their ends. And Nate Phelps is right about his family. I have never followed the Phelps but what I saw today reflected experience and savvy with debate formats and traditional legal arguments, although of the more theocratic variety.

Second, and more disturbingly, what the debate brouhaha showed me was how poorly many people understand the function of a public university, the culture of intellectual exchange, and the rules of the game, as far as U.S. speech culture is concerned. Except on those rare occasions when a public university is addressing a question about its own corporate identity, the speech that goes on at a public research university is that of the many people and institutions that make up the rich mosaic which is a public university. To suggest some kind of vetting or oversight by administration officials of student activities, as some have, is the kind of prior restraint that Anglo-American legal culture long ago decided was repugnant to what we think of as freedom.

Moreover, the function of the academic enterprise is truth-seeking, not balance, although I realize that I am violating post-modernity’s Nicene Creed against the possibility of truth. The organizer of a speech event – students or otherwise – have the freedom to pursue their vision of its content and participants. To argue that the presence of “mainstream” institutions (whatever those are) is a proxy for the kind of intellectual rigor needed for truth-seeking is a big mistake: what this argument is really saying is “Please confine the scope of your inquiry to the existing consensus, as I have more faith in that than in having to think for myself about new material.” One of the most important decisions that a GLBTQ person must make is whether to see himself through his own eyes or through the perspective of straight society which, in case you hadn’t noticed already, IS the mainstream . A little original thinking on this score is not such a bad thing.

Finally, we are experiencing an important moment of openness and realignment in how we think about the gay-straight question. As I see it, it is an age of schism and cleavage in the heterosexual community, in the sense that faith communities are splitting on this issue (for Heaven’s sake! they should – what could be more important to a faith community than bearing witness to truth?) and that legal developments like the Defense of Marriage movements are calling the question, allowing people to take clear, public positions, so that we can see where people stand and act accordingly. (It’s about time.) A key thing that is happening is that heterosexuals are becoming increasingly aware of their individual and collective role in majoritarian abuses against sexual minorities. Some heterosexuals embrace the new consciousness; some object vigorously, trying in vain to put the toothpaste back in the tube; but most are still undecided and would benefit from a clear exposition of what is at stake when a supermajority works at erasing the existence of a minority. If you care about helping people to make choices that serve their core values (be they the values of old time religion and majoritarian overreaching or those of the secular human potential movement), you can help most by revealing the truth of what is at stake in these so called “marriage protection” amendments. In my opinion, today’s debate did that in spades, making a contribution not just on this issue but to speech generally as a way of finding and affirming your values.

Just for the record – the last two weeks have probably been the most stressful 2 weeks of my professional life due to intense hostility and scrutiny over this event, but now that it’s over, I feel relieved, proud of the courage and integrity of our Stonewall Legal Alliance and its leadership, grateful that I had the opportunity to bear witness to my truth on the question, and more convinced than ever about the value of open exchange on questions of faith and public policy.

(After I submitted this last night, Jim Burroway kindly gave me this forum, so I want to use it point you to material on my blog that some of you will like.  Start with the “Straight Question” essay on heterosexuality.  The first part especially was designed to be accessible and healing.  If you’re a visual type, go to the concept map.  Cheers.)


October 27th, 2008

A good post, professor.

However, I remain unconvinced that the good that is done by fully examining both sides of an issue justifies an invitation to the likes of the Phelps family.

Jose Gabilondo

October 27th, 2008

Dear Dave,

I understand. It’s no coincidence, though, that when it comes to gay marriage, we still think in terms of “both sides” of the issue, something we would never dream of doing so when it comes to both sides of racism or, except in some weird places, both sides of anti-Semitism.

There are good arguments against gay marriage. Some radical feminists and others see marriage as a tool of hierarchy. And elevating these little dyads – encouraging their self-absorption – leaves a lot of people (the unmarried and the unmarriable) out in the cold, wondering what it would be like to have a relationship that is also a fortress in a generally uncaring society.

No doubt there are other good arguments against gay marriage, but these aren’t the reasons behind the defense of marriage initiatives. What motivates these initiatives – at their best – is majoritarian overreaching, a kind of ordinary selfishness and a lack of empathy needed to step out of one’s position that comes from a lifetime of not having had to individuate away from society. That’s at their best. At their worst – these initiatives reflect a more intentional form of hostility.

So I don’t actually think that there are any legitimate arguments advanced against gay marriage, at least none that survive non-homophobic scrutiny. Again, there may be some out there, but these aren’t the arguments that motivate the new Right. On this issue, then, I wouldn’t bother with liberal notions of “balance,” because doing so probably legitimates an illegitimate agenda.

The other point is that Westboro is not really a threat to our rights. Granted – verbal assault hurts. Being called “fag” as I walk down the street is probably still the most upsetting thing that happens to me, so I understand feeling hurt by this language. But ask yourself which institutions, individuals, and concepts hurt you most directly on this score. It’s not a marginal group like Westboro. You should be worried about the pillars of conservatism – the Federalist Society, the Christian Legal Society, the converted GOP, and the many other respectable voices of the new Right, including, frankly, the Log Cabin Republicans.

If you wait until you see the whites of their eyes, it will be too late.

Timothy Kincaid

October 27th, 2008

If you think that Log Cabin Republicans is either a “pillar of conservatism” or a “threat to our rights” then you are mistaken.


October 28th, 2008


An interesting reply. However, it never touches the point of my concern.

The Phelps family are exceedingly nasty. I worried about encouring and legitimizing their very hateful tactics by inviting them to a legitimate debate. It is welcoming them as proper debate participants that seems to risk legitimizing an illegitimate agenda. Just how much power the Westboro clan actually has is irrelevant to this point.

Frankly, if you are disinclined to bother with liberal notions of balance,” on the issue of same-sex marriage, I don’t understand why you want to debate the matter.

I don’t doubt you are correct that most opposition to gay marriage is majoritarian overreaching. But as you admit this doesn’t preclude some from having good reasons for their opposition. I think discussion and debate between such people and SSM proponents would be for the best. Debating with the Phelps’ hardly fits the bill.

I am afraid of the Westboro Baptist Church. I am also not afraid of the groups you list as examples of “pillars of conservatism.”

I can’t agree with your opinion of the Federalist Society. They are not a political group at all; they are interested in legal culture and proper jurisprudence. And I must confess I don’t know anything about the Christian Legal Society.

As for the GOP,let me just say that both major parties are ancient and self-perpetuating institutions filled with political careerists and let that be that.

Lastly, though it pains me dearly to do so, I have to agree with Timothy Kincaid about the Log Cabin Republicans.


October 28th, 2008

My second paragraph above should read:

The Phelps family are exceedingly nasty. I worried about encouraging and legitimizing their very hateful tactics by inviting them to a legitimate debate.

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