Review of ROMANCE IN THE IVORY TOWER, II

Abusus Non Tollit Usum or Do Not Throw Out the Baby with the Bath Water

Review of Paul R. Abramson: Romance in the Ivory Tower: The Rights and Liberty of Conscience, MIT Press, 2007, 176 pp.

Reviewed by Joseph S. Fulda

The original publication of this review is located at http://www.springerlink.com

http://springerlink.com/content/a302108548m64201/fulltext.html

DOI: 10.1007/s12119-007-9017-3

Forthcoming in SEXUALITY AND CULTURE, vol. 12 #1, March 2008, pp. 68-70

The Conceptual Aims and Practical Goal of the Book
Abramson wrote this book with two aims in mind: (1) To avoid giving offense to any, while (2) arguing for “safeguarding the right to think and choose, according to one’s conscience, as it applies to faculty-student romance” and the choice of whom to romance, more generally. The explicit goal of the book is to “reverse [the] situation” where when “you lose your heart, you could lose your job.”

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The False Issue and the Real Issue
Abramson does not deny that conflicts of interest are possible, but believes rather that such solutions as “recusal, disclosure, and third-party evaluations” are the answer, not simply banning romance. Moreover, Abramson does deny-and we agree-that were universities honestly motivated by conflicts of interest, they would not routinely place inappropriate pressure on faculty to favor athletes (who bring in money), and argues that when it comes to banning romances the issue is, once again, money. Money. Listen to Abramson on p. 30:
Why, you may wonder, do companies prohibit romance in the first place? …[T]he truth of the matter is that the primary motivation for the nonfraternization policy is the belief that it reduces civil liability in sexual harassment lawsuits …the rhetoric about power differentials and favoritism notwithstanding. …How, you may wonder, can this be true? Or more specifically, what does romance among consenting adults have to do with sexual harassment? The real answer is precisely nothing. …The big question, then, is why should consensual romance be denied in the service of protecting against sexual harassment lawsuits?

And, on pp. 32-33:
Is this fair? Or more important, is this legal?

It is, of course, patently unfair. The only real question is whether it is legal, or more significantly, treated as legal?

Before going on to Abramson’s own answer to this question, it is well to remark that he is not against saving money per se; he advocates that consenting partners sign a “love contract” releasing the university from liability. But the current approach, he likens to banning purses and laptops because some may be stolen or eliminating parking lots and cars on campus when problems arise in these domains.
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The Framework of Abramson’s Argument
Space and the desire to leave something for the reader to discover on his own preclude us from giving more than a bulleted outline-a sketch-of Abramson’s argument, with one hopes not too considerable damage to the subtleties and nuances-for which, of course, the reader of this review must purchase the book. Here is the sketch: • The First Amendment protects both the free exercise of religion and precludes the establishment of a national religion or preference between religious systems.
• The draft of the Amendment originally written by Madison included a third clause regarding “the rights of conscience.”
• The constitutional archives, by which Abramson means the entire corpus of writings of the Founding and Framing eras, are not ultimately dispositive about whether the oft-mentioned rights of conscience were parallel to, underlay, or were a synonym for the free exercise of religion and the proscription of preference between religious systems-or perhaps some combination of all three.
• The constitutional archives are not ultimately dispositive as to whether the free exercise clause extends to behavior not injurious to others, but leans in that direction.
• The Ninth Amendment protecting unenumerated rights can certainly be read as extending to the rights of conscience broadly considered.
• Anchoring the liberty of conscience in the First or Ninth Amendments grants it affirmative protection as something inherently worthwhile, while recognizing a zone of privacy merely walls it off from certain intrusions.
• For something as fundamental as the liberty of conscience, extending both to beliefs and behavior not injurious to others, a firmer footing than the negative right to privacy is desirable.
• Sexual and romantic choices are ultimately matters of conscience and were pretty uniformly so regarded at the time and place of the Framing.
• Universities receiving federal funds ought to recognize the liberty of conscience in its entirety, because it is the right thing to do and because it is mandated by the Constitution’s core principles if not perhaps by its text and if decidedly not by the history of that text’s interpretation.
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The Flaws
A few small problems mar this book, and one significantly larger issue. The small problems include, inter alia, the absence of citations for legal cases, the repeated use of “discrete” for “discreet,” and the reversal of meanings given “impartiality” and “partiality.”

The larger issue is that Abramson sees fit to properly ally the rights of religion and conscience in the choice of romantic partners throughout most of the book, but towards the ends adopts a strange (given his first aim) and entirely unnecessary (given his second aim) and, indeed, counterproductive hostility towards religion.

The Decalogue commands respect for parents, but a core religious teaching is that children may entirely disregard their parents’ wishes when it comes to a choice of spouse. Moreover, even the young are not to be married without their consent. This lesson is taught in Genesis where Rebecca, a child prodigy who spoke and reasoned at 3 years of age, had to be consulted before Milcah and Laban released her to Abraham’s servant Eliezer as a mate for Isaac.

This hostility undermines his own parallel throughout the book’s body between religion and conscience and I cannot divine what impelled him to do this to his own argument.

Still, the book remains largely persuasive and deserves a fair hearing from the (anyway) largely secular academy to which it is directed.