The treatment of homosexuals by the rest of society has become a prominent topic within the legal profession. Last week, The Record published a series of letters discussing the decision by Harvard Law School to allow military recruiters on campus due to the threat of losing federal funding. This week, the Log Cabin Republicans filed a lawsuit against the military, seeking to overturn “Don’t Ask, Don’t Tell” and Mary Bonauto, chief counsel in the Goodridge case that brought gay marriage to Massachusetts, spoke here at HLS. It is evident that this issue will not leave us anytime soon, nor should it – it is a matter that goes to the very foundations of our legal system, for it involves a group of people who have been legally separated from the rest of society and barred from the same opportunities the rest of us have. This represents a failure in the safeguards accorded to minorities under our constitutional system.
One may view homosexuality as immoral yet still acknowledge homosexuals deserve equal treatment. Some people view sexual relations outside of marriage as immoral, yet people who engage in pre-marital sex still receive marriage licenses and are permitted to join the armed forces. Society does not stop such individuals from undergoing such courses of action because we recognize, as a secular society, that religion should play a limited role (if any) in the enactment of public policy. Homosexuals work in every state, pay taxes in every state, shop in every state, love in every state, yet are allowed to marry in only one and serve in the armed forces in none.
Slippery slope arguments, so favored in the legal world, only serve to cloud the issue. No one truly believes that allowing gay marriage will open up the door to polygamy – so long as the issue remains one of equal rights, no court will rule that polygamy should be allowed, as no group is currently allowed such an arrangement. It should also be pointed out that instances of polygamy that have occurred throughout history have often been linked to religion and never to homosexuality.
Arguments that gay marriage is an affront to the “dignity” of heterosexual marriage are likewise suspect. Is the promiscuity of an unmarried couple an affront to the “dignity” of a couple that has chosen to wait until marriage? Even if some perceived it to be so, should the law play any role in regulating such conduct? Those who are concerned about the dignity of marriage should look to celebrities such as Britney Spears or Jennifer Lopez, who treat marriage as a publicity stunt rather than a sacred bond.
Imagine a state in which homosexuals become a majority and enact laws banning heterosexual marriage and replacing it with gay marriage. Furthermore, heterosexuals in the state would no longer be permitted to serve in the police forces or fire stations. The ensuing outcry would lead to numerous lawsuits. Those who opposed the move would not be concerned with judicial restraint. The end result would almost assuredly be the Supreme Court of the United States stepping in and ruling such a move unconstitutional. What legally separates the current situation from this hypothetical scenario?