Tuesday, April 22, 2014

How the Same-Sex Marriage Debate Can Lead to Better Businesses

Over at realclearpolitics.com, a number of leading thinkers, including some leading business law folks such as Richard Epstein and Jonathan Adler, among others, have signed a public statement: Freedom to Marry, Freedom to Dissent: Why We Must Have Both.  Following is a portion of the statement:

The last few years have brought an astonishing moral and political transformation in the American debate over same-sex marriage and gay equality. This has been a triumph not only for LGBT Americans but for the American idea. But the breakthrough has brought with it rapidly rising expectations among some supporters of gay marriage that the debate should now be over. As one advocate recently put it, “It would be enough for me if those people who are so ignorant or intransigent as to still be anti-gay in 2014 would simply shut up.”

 

The signatories of this statement are grateful to our friends and allies for their enthusiasm. But we are concerned that recent events, including the resignation of the CEO of Mozilla under pressure because of an anti-same-sex- marriage donation he made in 2008, signal an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree. We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.

For those who don’t know, former Mozilla CEO Brendan Eich resigned following the public outcry when it was revealed that he had donated $1,000 to support Proposition 8, a 2008 California ballot initiative and constitutional amendment designed to ban same-sex marriage in the state.

To be clear on my stance: I strongly support same-sex marriage, and I fundamentally disagree with Prop 8.   Still, punishing people, as opposed to criticizing people, for contrary and even wrong-headed political views is neither productive nor proper. (Nonetheless, there are multiple examples of people who felt Eich needed to resign. See, e.g.,  here, here, and here.) 

Admittedly, if it’s clear that the head of any organization, whether it is a profit or nonprofit entity, doesn’t further the goals of the organization, then there is a bad fit. Furthermore, this isn’t about Mr. Eich’s free speech rights in that there is no government actor here. This was a private response to a private person’s actions. Mozilla has the power to act to replace Mr. Eich, and members of the public have a right to call for his ouster.  It just doesn’t make it inherently right or wise.

Certainly, one can imagine a scenario where a CEO’s prior political or organizational giving would create problems for the organization.  For example, an environmental organization may not be comfortable with a CEO who had given money to a group fighting climate legislation. But, in that circumstance, the hiring body, and likely the CEO, would, or at least should, have known that support for climate change initiatives would be expected as part of the job.  Top employees often become the face of the organization, and that comes with job, but if a particular political view is deemed necessary for the job, it would help if the CEO knew it during the interview process.  

Even if Mozilla was responsible for the mistake (in hiring someone with political views that were not accepted to many employees and customers), as an entity, the company was not improper to respond in what it deemed to be in the best interest as the organization.  Just as important, though, is the community response to Mozilla as an entity.  The free market allows us all to choose with whom we wish to do business.  But when we make such decisions, we need to be careful about who we are punishing and why.

People have a right to be upset and to protest Mr. Eich’s views.  I think Prop 8 was dead wrong, and I don’t like that anyone supported it.  Still, I don't think calling for Mr. Eich or anyone else to lose their job is proper simply because I disagree with their views.   I would feel differently if there were evidence that Mr. Eich discriminated against gay employees. There just doesn't seem to be any support for that proposition.

We need to be careful to avoid a world where every portion of what we do becomes politicized and polarized.  Although there are core values each of us holds, we should also recognize that not everyone shares all of our core values, all of the time.  Nor can they.  My wife and I agree on a lot of things, and it is a big reason why we’re together.  Still, some of my best learning has been when we don’t agree. Sometimes I change my mind, and other times I don’t, but even then I have learned more about my views and why I hold them. 

I don’t want to live in a world where politicians and news outlets and companies operate in lockstep to a specific set of ideals.  There are too many examples of that already to make me comfortable.  I don’t want to choose only from a Republican burger joint or a Democratic sub shop. We need more.  We need a populist pizza place, and a libertarian ice cream shop, and everything in between.  In my view, the litmus test should be whether people do a good job at doing their job, and whether they treat others well (employees and customers), regardless of their ideological differences.  

Open public discourse is a right under our Constitution, but it is not socially required. When respectful and thoughtful, open discourse helps all of us be better citizens and better people. If we commit ourselves as individuals to respecting others and listening, even when (and especially when) we disagree, good things will follow.  It is one thing to dismiss views with which we disagree; it is another to dismiss, out of hand, the people who hold such views.  For all the complaints about the evils of business, I have a suspicion that if we expected more of ourselves, businesses would follow our lead.

https://lawprofessors.typepad.com/business_law/2014/04/how-the-same-sex-marriage-debate-can-lead-to-better-businesses.html

Corporations, Current Affairs, Joshua P. Fershee, Religion, Social Enterprise | Permalink

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