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Controversy Continues Over Law Prof's Anti-Gay Ad

As a graduate of Boston College Law School, I was disappointed to read about BC Law Professor Scott T. Fitzgibbon's starring role in an anti-gay marriage TV ad targeted at voters in Maine. Now that I've watched the ad and read more about it, I find it even more disappointing for the ways in which it distorts some of the underlying issues.

By way of background, Maine last May became the first state to legalize gay marriage through legislation rather than court action. No sooner was the legislation signed into law than a coalition of gay marriage opponents mounted an effort to put a referendum on the November ballot to repeal it. Their effort was successful and now Question 1 goes to Maine voters Nov. 3.

With the referendum secured, the battle of the TV ads began. The first ad from gay marriage opponents to hit the airwaves prominently featured Fitzgibbon, who is just as prominently identified as from Boston College Law School. (It carries the disclaimer, "Title for identification only, no university endorsement implied.") He warns of the dire legal consequences that would befall the state should gay marriage become law:

Unless Question 1 passes, there will be real consequences for Mainers. Legal experts predict a flood of lawsuits against individuals, small businesses and religious groups. Church organizations could lose their tax exemptions, homosexual marriage taught in public schools, whether parents like it or not.

As he makes that last point -- that homosexual marriage will be taught in public schools -- a case citation flashes on the screen, as if to underscore the point. The citation is to Parker v. Hurley, a 2008 decision of the 1st U.S. Circuit Court of Appeals. And guess what? The case provides no support for Fitzgibbon's contention. It was a challenge on constitutional grounds to a school's use of two books that included portrayals of gay marriage. Given that it was decided by the 1st Circuit, which includes Maine, and was based on constitutional issues rather than statutory issues, it applies in Maine without regard to whether or not Question 1 passes. More to the point, the 1st Circuit went out of its way to say that the case was not about a coerced curriculum:

On the facts, there is no viable claim of "indoctrination" here. ... [W]e note the plaintiffs' children were not forced to read the books on pain of suspension. Nor were they subject to a constant stream of like materials. There is no allegation here of a formalized curriculum requiring students to read many books affirming gay marriage.

That citation is not the only distortion in the ad. As Fitzgibbon makes the assertion that church organizations could lose their tax exemption, an AP story flashes on the screen showing the headline, "Homosexual Advocacy Group Accuses Maine Diocese of Violating Tax Law." But two blogs, AmericaBlog and the BC Law student blog Eagleionline, say that the ad altered the AP headline from "Gay Rights Group" to "Homosexual Advocacy Group." And the story says nothing about a church losing its tax exemption because of gay marriage, but because of its involvement in political advocacy.

BC Law Dean John H. Garvey issued a statement yesterday in response to the controversy on campus over the ad. Saying that he recognizes "that this is an emotional and sensitive subject for many people," Garvey says, "I also believe that one of the most important aspects of an education at a school like ours is the principle of academic freedom." Fitzgibbon, Garvey says, "is free to express his views."

Garvey is right, of course. Fitzgibbon should be free to express his views. But it seems to me that, as a law professor, he should at least base those views on reasoned analysis of the facts and law. In this case, he instead relies on inflammatory and unfounded rhetoric. What would Fitzgibbon say if one of his students did the same?

Posted by Robert J. Ambrogi on September 17, 2009 at 11:18 AM | Permalink | Comments (12)


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