Hammer’s suit is based on contract law, not discrimination law; there are no federal or Michigan laws barring discrimination on the basis of sexual orientation on which he could sue. His suit is based on the idea that he was assured when accepting the job at Michigan (and turning down other offers) of the university’s commitment to equity for gay employees, as outlined in the faculty handbook and various university policies. Hammer’s legal specialties are health policy and Southeast Asia, especially Cambodia. So while he was out to colleagues, his teaching and scholarship did not focus on gay issues.There are at least two major problems with this:
An argument made by Hammer is also attracting attention. He examined the records and backgrounds of some of the faculty members who voted against him. In several cases (enough to affect the outcome of the vote), he argues that the professors’ comments or writings or affiliations raise questions about their fairness — especially because in the discovery process he maintains that they were not forthright about their beliefs. For example, one professor is a member of a church that will not admit gay people unless they promise to “reform their ways,” according to court documents. Yet the professor, according to depositions and statements provided by Hammer’s lawyer, denied knowing his church’s views on gay people, even though they are identifiable from links on the church’s Web site, and the professor teaches Sunday school there. In another case, a professor’s opposition to same-sex marriage is cited. Another faculty member wrote of gay people as a “pariah group.”
In discovery, Hammer’s lawyers asked these and other professors questions about hot-button social issues (not only on gay rights, but abortion in some cases) to document what Hammer considers to be a pattern of people with conservative social values misrepresenting their own views. (In all of these cases, the professors have said that they voted against Hammer because they didn’t think his scholarship rose to the necessary level of excellence and not because Hammer is gay, and the university backs these professors.)
“We were trying to triangulate the extent to which these beliefs or biases affect these decisions,” Hammer said. “You’ve got a pattern of people obscuring and denying their beliefs on these issues, and that creates an incredibly negative inference.” He added that the question for these professors is: “How can we trust you when we say the vote is all about scholarship?”
Asked if his suit would unfairly assume anyone with conservative social values would be biased against him, Hammer said that was not the case. He said that what makes the professors’ stances questionable is denying that they hold views that they hold. “This isn’t about trying to have an ideological test about who should vote,” he said. “It’s about honesty. It’s about lying about these deeply held beliefs as the discrimination claim is being litigated.”
Hammer acknowledged that his approach to the case is a new method for fighting bias. But he noted that faculty members these days are not going to say publicly in a tenure vote that they are voting for or against someone based on sexual orientation (or gender or race, for that matter). “The theory of the case is that you are dealing with this very strong combination of religion and family values. You’ve got to get inside somebody’s mind and present it in a way that can be objectively verified. You are looking for something that is so often invisible and shrouded in secrecy.”
1. People are often members of organizations with whom they do not completely agree.
2. Some of those who voted against Hammer's tenure might well disapprove of homosexuality, and yet made their decision based on the quality of Hammer's scholarly work.
In practice, if Hammer gets his way, universities will find themselves pressured to remove anyone from tenure committee decisions who is a member of a church that disapproves of homosexuality--which in practice means that the tiny number of Christians, Orthodox Jews, and Muslims that are on faculty will be further marginalized.
Can you imagine the uproar if a conservative denied tenure (which I would presume is extremely common) demanded that members of the tenure committee be carefully examined about their political beliefs, with the assumption that their decision was based on lies?