BY 167 STUDENTS
Professor Mary Ann Glendon’s editorial of February 25th (“For Better or For Worse?: The federal marriage amendment would strike a blow for freedom,” Wall Street Journal, February 25, 2004) is commendable for its reasoned tone in a debate that has been characterized by epithets and indignation. But the presence of an ergo, a Q.E.D., or a tenured professorship should not lull anyone into the belief that the premises from which she reasons are any more logical or just than the fire-and-brimstone admonitions of picketers at the statehouse gates. As students of Harvard Law School, we respectfully submit this response to Glendon’s arguments.
Glendon raises essentially five arguments in favor of a constitutional amendment precluding gay marriage: 1) gay marriage may be expensive to the public, given Social Security’s survivorship benefits, and is thus a special preference, given the exclusion of other associations (i.e., elderly relatives) from such benefits; 2) special preferences are given to heterosexual unions “for the very good reason that most of them are raising or have raised children”; 3) children’s rights will be violated, either because they will be raised by gay couples, or because they will have to learn about homosexuality in public schools; 4) gay marriage will threaten religious freedom by fostering intolerance of a diversity of opinion; 5) controversial decisions of this sort should be decided by legislators and citizens, not the judiciary.
First, Glendon bases much of her argument about the potential expenses of gay marriage on the Canadian model, where retroactivity of social welfare benefits could prove quite costly. No such retroactivity necessarily follows from permitting gay marriage in an American context. Quite the contrary, gay marriages are likely to generate more tax revenues, given the potential marriage penalties of our current tax regime. Furthermore, Glendon’s assertion that gay marriage is a special preference when compared to other forms of association ignores the fact that intimate associations (both homosexual and heterosexual) receive significantly more constitutional protection than other associations suggested by Glendon; compare Lawrence v. Texas (2003) alongside Troxel v. Granville (2000), which established no right to grandparent visitation under the Constitution.
Second, Glendon asserts special benefits are justified for heterosexual marriages because they raise children. Yet children are not and have never been a prerequisite to the benefits of marriage. Many heterosexual marriages are childless, and many homosexual couples now raise children yet are denied the benefits of marriage. Children cannot serve as the linchpin for Glendon’s argument. Furthermore, Glendon’s assertion that homosexuals do not need marriage benefits because they form a “relatively affluent” subsection of society is both unsubstantiated and a poor justification for denial of benefits. If affluence is a legitimate barrier to marital benefits, then it is only the poor, and not only the straight, who should be able to marry. Many of us share Glendon’s concerns about the rolling back of benefits for the elderly, the disabled, and children in poor families in Massachusetts, particularly when the elderly, the disabled, or the poor are doubly disadvantaged because they are gay.
Third, by arguing that children’s rights will be violated by being raised by gay parents, Glendon ignores the social science research cited in Goodridge affirming that gay parents are equally capable of successfully raising children as traditional heterosexual families. Furthermore, whatever fears Glendon has about single-parent families are inapplicable in a discussion of gay marriage, which would likely increase the number of two-parent families. The concern that educational institutions will teach students about homosexual sex is somewhat puzzling. If the major thrust of sex education in this country is about the prevention of pregnancy and sexually transmitted diseases, is Glendon suggesting that such education be targeted solely at heterosexual students and not at homosexual ones? In the alternative, if sex education centers around the learning of sexual behavior as a good unto itself, and if homosexual activity receives just as much protection under the law as heterosexual activity, why is Glendon advocating a restriction of knowledge?
Fourth, any assertion that permitting gay marriage will impinge on freedom of religion in an American context is absurd, given the contours of the First Amendment. No state in the Union can require any religious institution to recognize a homosexual marriage, as this would violate the separation of church and state as enshrined in the Constitution. Furthermore, Title VII of the Civil Right Act of 1964 explicitly prohibits workplace discrimination on the basis of religion (in addition to race, color, and/or national origin.) Glendon’s concerns about bigotry against religious believers, then, is a concern about beliefs privately held or publicly voiced but not enshrined in law, which seems to be the ultimate application of the live-and-let-live philosophy that Glendon asserts is so deceptive.
Lastly, and perhaps most central to the underlying discussion of Goodridge in the national discourse, we must carefully scrutinize Glendon’s conception of the judiciary’s role in society. Essentially, Glendon is saying that big decisions should be up to the legislature and the populace, and not the judiciary. Yet, at the time of Loving v. Virginia, there was widespread opposition to the idea of interracial marriage. Whether or not one agrees that interracial and gay marriage are analogous, one must ask whether Glendon is asserting that the Supreme Court abused its authority when it lifted the ban on interracial marriage. Should the Court have deferred to the legislature and the populace with the likely outcome that such a ban would remain in effect in many states, despite the existence of the Fourteenth Amendment that would seem to dictate a different outcome? Is any constitution merely a reflection of the democratic will? Or is the essence of constitutionalism a protection of majority rule but also of minority rights?
We would suggest that the answers are not so simple as Professor Glendon implies and that various politicians so readily assert.
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