Insight From San Franciscans

Greetings from San Francisco. I am here delivering a paper and chairing a panel at the Law & Society Conference (both are about technology, but more about that in a future post) in a fortuitous bit of travel that makes posting about the circumcision ban apropos. Alas, my amazing colleagues on this site have spoken so well on this topic that I was content to offer my thoughts to my regular Towleroad readers yesterday. The post was mostly about the federal constitutional arguments should the ban pass, but the topic elicited high pitched emotions from the small sampling of the gay community that has the time and inclination to post comments online.

Admittedly, I was shocked at my commentators’ near-unanimity in support of the ban, and that’s not even including those who simply attacked the motives of their opponents and used the kind of rhetoric that Dave Hoffman advised against here. Circumcision may have special cultural significance in the gay community, but if so, that’s news to me. So, I decided to test the theory.

When the post reached near 100 comments, I took a friend to the Castro district, a historic gay enclave, put on a nice shirt and my best smile and asked random passers-by about their opinions on the ban. In a few hours, I spoke to nearly 85 people, 80 of whom identified as gay, lesbian, bisexual or transgender. My friend spoke to 53 people, all of whom identified as LGBT. (By the way, that shocked me, as well. Does no one else visit the Castro? Or did we subconsciously self-select? Or were gay people drawn to a gay guy?). I asked very simple questions:

1. Do you support the proposed ban on circumcision of males under the age of 18?

2. Why? What’s your reasoning in one or two sentences?

This sample is also small and I could not very well ask Likert questions and do a regression analysis in time, so we must take the results with a healthy dose of salt.

Of the 133 LGBT respondents, only 19 supported the ban. The quantitative and qualitative results conformed to my expectations.

The 19 in support used words and phrases like “male genital mutilation,” “like the horrors of rape,” “Jews need to modernize,” “trauma,” “I will never forgive my parents,” “dehumanizing,” and so on. A few also decided to register their personal sexual preferences.

The 114 opposed to the ban used words and phrases like “parents should decide,” “parents make decisions for their children all the time,” “its not a big deal,” “why do we have to keep banning [bleep],” “live and let live,” “if someone wants to do it, who am I to say no,” “why should I get involved in how you raise your children.” More than a few also registered their personal sexual preferences, but there was little correlation between those who volunteered that they were circumcised, or preferred circumcised partners, and those who opposed the ban.

I expected this libertarian streak, if only because I see it in my students when I teach gay rights. Students who support marriage equality, for example, offer libertarian legal and policy arguments as to why marriage equality is constitutional and why it is a good idea. They decry conservatives’ interest in what they, or their gay friends, do in their bedrooms. They wonder how marriage equality can really affect anyone else. These views and questions make sense, and while I have some sympathy for the perspective, I always push back for pedagogical purposes, to make them offer constitutional and precedential arguments rather than just giving me their policy preferences and because it is hardly the best argument for marriage rights.

Libertarianism is like a Monet: it seems awesome from afar, but the devil is in the details. I find myself fighting against its implications in my scholarship and in conversations with students.

In your teaching experiences in any subject area, do you see increasing libertarianism in your students? For those who teach classes about minority and gender rights, are your students libertarians?

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4 Responses

  1. dave hoffman says:

    Fun post.
    What do you think explains the difference between your commentators and survey subjects? Selection driven by how you prompted them? Something about online responses? (i.e., the “Bradley effect”, but more … personally … based)?

  2. Ari Waldman says:

    Thanks for the comment!

    I think its mostly about the character and nature of online responders, in general. Before I started blogging, I would never read comments, but I find myself drawn to the comments to my posts. It’s almost a masochistic thing (plus, some people ask really fantastic questions!).

    Those who comment on websites tend to be of the zealous variety. They have a specific world view and they like to use CAPITAL LETTERS to express it.

    But, in classic law prof talk, it has to be a host of factors. Men and women in the Castro saw a young, well-dressed man and were drawn in (two even asked me out on a date!); I may have been subconsciously prejudicing my sample, but smiling more at the well-dressed than at those who I didn’t think were interested. I tried to get a diverse sample — black/white, young/old, male/female, etc. — but it was entirely nonscientific.

  3. I’m not sure the student reaction to gay marriage is accurately described as libertarianism, at least in any robust sense. I think it is more dismissal of any valid reasons not to permit gay marriage (in which case, why not?). For “libertarianism” to be doing any real work, there has to be some concession of potential policy reasons to maintain a regulation, but nonetheless opposing it because it infringes too severely on human liberty.

    Imagine you pitch to me a regulation mandating that all barbers wear brightly colored jester hats. I’d oppose it, primarily because, well, what purpose could such a regulation possibly serve. Even if you managed to cobble together some halfway plausible story (it makes them less frightening to young children, say), I’d still oppose it because I think those reasons are silly and there is no point to such a regulation. That’s not “libertarian” of me, unless libertarianism encompasses any opposition to governmental regulation. But of course, non-libertarians are perfectly capable of opposing governmental regulations that they think are silly.

    Contrast that to opposition to an anti-flag burning bill. There, I might concede the facial validity of the policy objective (disrespectful to veterans or whatnot), I just think that, nonetheless, commitment to personal liberty and freedom of expression trump. That’s a libertarian position — it uses a strong presumption in favor of human liberty in order to trump another, facially valid principle.

    I think most students’ pro-gay marriage position is more in the former camp, though. They just find the supposed problems with it baffling; they don’t even accord them facial validity. Barring gay people from marrying serves no apparent purpose to them — it’s just a gratuitous restriction on gay people. So why bother having it?

  4. Orin Kerr says:

    I think David Schraub makes a very good point.