Boycotts have their place in a democracy, but it is a limited place. The method is a form of economic bullying, using commerce, or the withholding of it, to pressure a person or business into changing their conduct. The ethical problem with boycotts is that it is the economic impact, not the rightness of the cause, that usually determines the end result. Boycotts can and have been used for bad objectives as well as good. They also cause collateral damage, as innocent employees, investors and families lose income, jobs and security due to no fault of their own.

In a country that is based upon freedom of thought and political choice, using  boycotts to suppress positions that are merely controversial rather than objectively wrong is ethically offensive. Yet in these times of polarized parties and ideologues who cannot see the grays in any dispute, too many people are unable to tell the difference. “You have a right to your opinion,” is a sentiment heard less and less these days, particularly if that opinion involves an issue like abortion, global warming, or gun control.

But you would think that lawyers would be the last to abandon it. After all, the tradition of the legal profession is that it exists to ensure that every citizen has the ability and opportunity to access the benefits of the legal system, including the pursuit of unpopular objectives. Three “Ethical Considerations” (EC 2-26 – EC 2-28) of the ABA’s Code of Professional Responsibility, as presently used by the New York Bar, makes this clear:

A lawyer is under no obligation to act as advisor or advocate for every

person who may wish to become a client; but in furtherance of the objective of the

bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a

lawyer of a fair share of tendered employment which may be unattractive both to

the lawyer and the bar generally….History is replete with instances of distinguished sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse. A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

…The personal preference of a lawyer to avoid adversary alignment against

judges, other lawyers, public officials or influential members of the community

does not justify rejection of tendered employment… 

So if the law is dedicated to allowing even unpopular and subjectively disagreeable positions to be pursued and argued though the legal system, why are four groups representing law professors and legal writing professionals threatening to boycott the annual meeting of the Association of American Law Schools because the owner of the hotel where the meeting may take place actively opposes same-sex marriages?

Oh, I don’t know: because they have decided that being lawyers isn’t enough…they want to be judge and jury too? Because they are so persuaded of their superior wisdom that even though same-sex marriage is a concept that the culture had completely rejected as of just a few years ago, the professors feel that an opinion consistent with that recent consensus must earn its owner economic punishment?

The meeting is being held in January at the San Diego Manchester Grand Hyatt, and its owner, Douglas Manchester, donated $125,000 to a California initiative to ban same-sex marriages, as is his right. Threatening the boycott are the Society of American Law Teachers, the Legal Writing Institute, the AALS Section on Legal Writing Research and Reasoning, and the AALS Section on Teaching Methods, who say Manchester’s views conflict with their policies of nondiscrimination based on sexual orientation.

Really. So if a state has a civil status that confers all the legal benefits of a marriage to same sex couples, but does not give it the title of marriage based on the fact that marriage’s definition has required two sexes for centuries, that is discrimination as a matter of law? This is hardly a universally accepted proposition, nor an intrinsically obvious one. It is, in fact, the kind of issue that should be determined by community debate and legislation, not fiat by the bench, and certainly not from a bunch of law professors. And if society’s interests are best served by such a process, then the function and duty of lawyers is to facilitate it by lending their expertise to both sides, not to collectively impose their own will through boycotts and bullying.

I see no good reason in morality, ethics or logic to oppose legalizing same sex marriages, and I cannot find a flaw with the reasoning of the Massachusetts Supreme Court that same-sex marriages are guaranteed by Constitutional principles. But the issue is still not settled; for example, the North Dakota Law Review recently devoted an entire issue to arguments against same-sex marriage (although much of the legal community, a liberal bastion if there ever was one, cried foul), and it is a question important enough to be settled by reason, not economic bludgeons. I don’t care to see my business attacked because I am dubious about the conventional wisdom on global warming, support capital punishment and root for the Boston Red Sox, and I think my withholding commerce from those who wanted to keep Terri Schiavo on life support, voted for Hillary Clinton and encourage Howard Stern’s coarsening of America would be presumptuous and wrong. If you can’t achieve a clear societal consensus with words and facts, it is unethical to resort to economic strong-arming instead. If you believe that your position is so right, then you shouldn’t have to ram it down your opposition’s throat.

Especially if your profession is supposedly dedicated to letting him have his say.