New commentary by Arkes, new criticism by alumni

Prof. Hadley Arkes (Photo courtesy of Pew Forum)

Prof. Hadley Arkes (Photo courtesy of Pew Forum)

The latest commentary  by Prof. Hadley Arkes of Amherst College, published in The Catholic Thing, has provoked a new round of criticism from Amherst alumni who say that Arkes continues to use his affiliation with the college to help spread distorted views about homosexuality and same-sex issues.

In his commentary, Arkes described a New Mexico court ruling against a photographer who refused to work at a same-sex commitment ceremony as an example of fanatical demands that religious people renounce their principles.

To that, alumnus Robert Nathan ’70 replied, “No one any longer has the right in this country to tell anyone that they can’t shop where everyone else shops. Thank god for that.” Nathan also said that Arkes’s earlier writings about homosexuality qualify as hate speech:

“Hate speech is speech that has as it sole purpose the incitement of violence against a class of people. Comparing an entire class of people to “pedophiles” is, whether [one] likes it or not, not an opinion. It’s first of all, a lie, and second it’s hate speech designed to incite violence. …

If I were Matthew Shepard’s parents, I’d sue Hadey Arkes for damages just to get the hate speech question in front of a judge.”

The latest writing from Arkes also attracted some support, such as the comment from James Cabot ’70 that “One person’s hate speech is another person’s ‘affirmation of a deeply held belief.’ ”

New Mexico Court of Appeals sealArkes commented on action last May by the New Mexico Court of Appeals, which upheld a ruling that the refusal to take photos at a same-sex ceremony was a violation of the state’s  Human Rights Act, which requires that companies serving the public not discriminate on the basis of sexual orientation.

In his Catholic Thing commentary titled “Compelling the Faithful to Recant,” Arkes stated:

In the case of Elaine and Jonathan Huguenin in New Mexico, there was no need to punish them for declining to take photographs of two women arranging what they regarded as their wedding. There was no want of photographers willing to have that business.

But it turns out that the people who have been arguing for years that there are no moral truths have absorbed the “logic of morals,” along with everyone else, and apply it now with a vengeance: The good is that which should be commended, encouraged, rewarded; the bad and wrongful is that which should be condemned, discouraged, punished.

Elaine Huguenin (Photo courtesy of Alliance Defending Freedom)

Elaine Huguenin (Photo courtesy of Alliance Defending Freedom)

It was critical to stamp the Huguenins as “wrongdoers.” Lincoln remarked on the partisans of slavery in his age that silent acquiescence would not be enough. One had to be “avowedly with them,” he said.  For “this, and this only [would assure them]: cease to call slavery wrong, and join them in calling it right.”

The activists for abortion and same-sex marriage have identified their adversaries as the religious, and they will not feel unthreatened until the teaching that animates the religious is renounced at the core. The Huguenins … must be compelled to confess … the rightness of same-sex marriage.

The libertarian professor of law, Eugene Volokh, likened this case of the Huguenins to the case on compelled speech under the First Amendment. Professor Volokh surely appreciated that the Huguenins were not strictly being required to speak words, say as the children of Jehovah’s Witnesses were once compelled to speak and perform the pledge to the flag.  But what Volokh apparently noticed here was that the moral insistence on punishing could be explained mainly by the desire to humble these people before a new orthodoxy, demanding now its place as a principle commanding reverence.

But the religious, with a certain sympathy and humility, steer away from demanding that their adversaries abase themselves in this way. The passion to demand that abasement marks an unlovely expression of fanaticism in our law.

And for the judges, it should mark a telling sign of the intemperate passion that the Founders were seeking to avert on either side – on the side of irreligious no less than the side of the religious – as they became untethered from an anchoring prudence.

What was working among the Founders was a religious and constitutional temperance as they sought to put the levers of official power at a more salutary distance from our religious life.

The full commentary is available on the Web site of The Catholic Thing.

Below are excerpts from the recent comments of alumni from the Class of 1970 about Arkes’s latest commentary and about his earlier writings, especially his remarks in March 2013 about sexual orientation, pedophilia, necrophilia and bestiality:

‘Bizarre and loathsome’ but ‘only opinions’


Actually, I half agree with Arkes on this one.  While I agree with the court’s ruling, I still think that any one has a right to think what they think, teach what they teach, love or hate whomever they wish, and announce that love or hate to the world.  That announcement —”hate speech”  it’s sometimes called — might cause people deep distress, and influence them to do things we’d rather they didn’t do, but if we value freedom of speech and freedom of thought, we have to put up with this as the cost of living in a free society.  One person’s hate speech is another person’s “affirmation of a deeply held belief”.

And this is true about just about everything I’ve read from Arkes.  As bizarre and loathsome as his opinions are, they are, first and last, only opinions.  Even when they are all tarted up in the language of “first principles” and “natural law” and backed with quotes from extremely old and famous people, they are only exercises in nomenclature.  Equating homosexuality with bestiality, necrophilia, pederasty, or what have you, is only one man’s opinion, no matter who else might share that opinion and what kind of robes they wear. Arkes’ saying it (or the Pope, for that matter) doesn’t somehow make it empirically true.

As the old song says, “Brother you can’t go to jail for what you’re thinkin’.”  On the other hand, you can and should go to jail for what you do.  If someone spouts hate, we have the perfect right to disagree with them and denounce their opinions, oppose them politically, and even shun them.  But the penalty of the law (“punishment”) needs to be reserved for what people do (or don’t do).  And the court’s ruling against the photographers wasn’t about what they believed or said, it was about what they did, which was to refuse a service that they had implicitly promised by putting out a shingle — i.e., they discriminated.

‘It’s an incitement to violence and Mr. Arkes knows it is’


We have laws in the Unites States that define certain things as “public accommodations.” There’s a reason that grocery stores can’t tell black people that they can’t shop there. This is the price we pay for democracy. Everybody gets access to whatever is deemed to be a public accommodation — basically meaning anywhere the public shops. No one any longer has the right in this country to tell anyone that they can’t shop where everyone else shops. Thank god for that.

Jamie accepts that the photographers went beyond speech. It could just as easily be argued — and it has — that all they did was speak and say, “No.” Why should they be punished for hurting someone’s feelings? Go find another photographer. We punish them as a society because we no longer tolerate that kind of speech. Arkes isn’t half-right. He’s just plain wrong, Jamie, and you can half-agree with him all you want. He’s still wrong.

2. It is more than disingenuous to say that “hate speech” is about distasteful opinions. Hate speech is speech that has as it sole purpose the incitement of violence against a class of people.

Comparing an entire class of people to “pedophiles” is, whether Jamie likes it or not, not an opinion. It’s first of all, a lie, and second it’s hate speech designed to incite violence.

3 Saying that all gay men are “diseased” and “will live foreshortened lives” (I may have the quote wrong, it’s from memory) isn’t an opinion. It’s a lie. Unless by foreshortened Mr. Arkes means 65, and I’m already past that. Mr. Arkes lies. Mr. Arkes argued that all high school students should be taught this “fact,” which isn’t a fact but a lie. Would Jamie prefer that high school students be taught creationism? Teaching high school students that gay men are disease-carriers is guaranteed to inflame students to beat up gay kids, It’s an incitement to violence and Mr. Arles knows it is. He’s nobody’s fool. SPEECH IS AN ACT. Words are not spoken in a vacuum. If you stand in front a crowd with ropes in their hands and say “lynch them” you can be arrested. Thank god for that.

Now here’s where the pedal hits the metal, and so turn your dials because here comes the moment when everyone says, “How dare you speak to Jamie like that? This is a civil discussion among classmates.”

No, it ain’t. It stopped being truly civil a long time ago, and not just because of me.

There is a famous Nora Ephron essay about her breasts. Everyone tries to convince her that having small breasts isn’t a big deal. At the end of the essay she says something like, “I’m here to tell them they’re all full of shit.” Jamie, if you insist on calling lies opinions, if you insist on this preposterous notion that equating homosexuality to three heinous crimes is not an incitement to violence, if you insist that saying “Lynch them” or “fire” in a crowded theater fall within the parameters of acceptable speech that cannot be punished, then I have a Nora Ephron message for you. To quote Nora, I’m here to tell you that you’re full of shit. And by the way, the courts agree with me a lot of the time. If I were Matthew Shepard’s parents, I’d sue Hadley Arkes for damages just to get the hate speech question in front of a judge.

‘The court was right and Arkes is dead wrong’


As for me, I entirely DIS-agree with Arkes on this one (and on a multitude of others).  In the not-too-far-distant past, it was quite common to see public facilities with signs pronouncing “No Jews Allowed”, or signs which pointed people of color to entrances in the rear.  This was wrong then, and it is wrong now.  If a private individual wants not to attend a homosexual wedding, it is their loss, and their right.  However no public enterprise has such a right, to serve only those they please, or to offer different services to different classes of individuals based solely on their race, religion, gender, or sexual preferences.  This is the law, and the court was right and Arkes is dead wrong.

‘Laws hate speech put us on a slippery slope’


On this point, David, I completely agree with you, as I stated in my previous posting. On the point that Arkes wrongly sets up as his justification, that people should not be punished for what they believe — or what they express — I tend to agree with him.  But, as you and other rightly point out, this is not what the court’s decision was based on.

And on Bob’s point, that we have laws in this country against “hate speech”, he may be right, but in my opinion, it puts us on a slippery slope.  Indeed, when he says that speech is an act, he is giving voice to a half-truth that much of the world believes, insofar as in many cultures, if a person insults you, you are honor-bound to exact blood-vengeance.  But if we in this country are going to value and protect free speech and still hold the line against anarchy, we’re going to have to maintain a pretty strict distinction between speech and action, assigning legal and moral responsibility to the latter, and making individuals answerable for their own actions, whatever vile and provocative inducements are thrown their way.  Because once you accept the actionability of “inciting to violence”, you open a whole can of worms, encapsulated by the question, “Sez who?”

Because “incitement” is very open to interpretation, and the interpretation that matters will be the one holding the political reins, be it a dictator, a mob, or a court.  Indeed, it’s basically the same justification that dictatorships all over the world habitually use to muzzle speech and peaceful political action.  Of course, they might call it something else, like upsetting social peace, or subverting the rightful order.  But once you start punishing statements the might cause some undesirable outcome, rather than or equally with actions that concretely lead to that outcome, you’re opening the door to censorship and killing free speech.

So let’s hate the speaker if we want to, oppose his ideas, shun and boycott him, and if we’re an employer who doesn’t have to maintain principles of academic freedom, fire his sorry ass (though this is a gray area I would approach cautiously).  But let’s punish (as in, use the coercive power of the state) the perpetrator — the one who acts.  And let’s teach our children to know right from wrong, distinguish truth from garbage, and be responsible for their actions, no matter what kind of vile noise they’re being subjected to.

‘It isn’t his right to hide behind the college’s name’


Jamie, I fear that you have gotten yourself trapped in Arkes honeypot trap, or his muddled thinking.

There is no evidence that the photographers were constrained from  “a right to think what they think.” There is no evidence provided by Arkes that the individuals committing had any alternative available to them. The photographers were merely prevented from acting in a way that discriminated against others, in a public enterprise. Is that wrong?

It was their actions that were found illegal. Arkes is arguing that their actions should not have been affirmed to be illegal.

As for the rest of Arkes piece, he was so busy setting up straw men about us “moral relativists” and equating homophobia with Lincoln’s (well-intentioned but failed) attempt to hold together the union before the civil war (WTF, should we go back to being silent about slavery?), that I merely shut him off. It is his right to be as much of an ass as he wishes, as long as he doest shout fire in a crowded theater, but it isn’t his right, imho, to hide behind the college’s name while doing it. That remains my objection regarding the lack of action by the college.

About Colin Stewart

Colin Stewart, a 45-year journalism veteran, is publisher and an editor of the "Erasing 76 Crimes" and "76 Crimes en français" blogs. Contact him at Colin Stewart, un vétéran du journalisme de 40 ans, est éditeur et rédacteur en chef des blogs "Erasing 76 Crimes" et "76Crimes en français." Contactez-le à l'adresse
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