Thursday, February 26, 2004

A Response to Mary Ann Glendon

“Why can’t we all just get along?” Sounds like such a reasonable question. “Why can’t we be civil?” “Why can’t we just sit down and give each other the benefit of the doubt?” “Why can’t we just put ourselves in the other’s shoes?”

Yes, yes yes. All questions that should be answered with a rousing, “Right on!”

And then you look a little closer and you realize some conflicts simply don’t lend themselves to the assumption of an even playing field. Do we ask Jews to sit down with Nazis? Slaves to sit down with slaveholders? Abused children to sit down with their abusers and assume an attitude of “simple difference of opinion?” There are times when you simply can’t work with the assumption of an even playing field.

Susan B. Anthony was harshly criticized when she once gave precedence to the suffragette movement over the freeing of slaves. Alice Walker was criticized similarly for The Color Purple because her complaint against black men allegedly weakened unity in the black civil rights movement. (You may remember her response: “You tell your story and I’ll tell mine.”) In both cases, these women’s dedication to the rights of women dictated their single-mindedness and left them vulnerable to charges of unreasonableness. Few not feeling the heel of the boot can understand the depth of their convictions.

Sometimes you reason. Other times you shout. Deciding when to do each of these is part of the art of life. On June 27, 1969, people took to the streets in the Stonewall Riots. Because they did, today, people can afford to be more “reasonable.” It’s costing us a lot in stomach lining, but it’s working. Barney Frank asked fellow gays to bite the bullet and give up pushing for gay marriage in the last election, knowing Americans were not ready for it and Republicans were squeezing political victory out of the prejudice. Most gays did shut up for a while, but resentments that come of such compromise with one’s sense of rights only fester and come out stronger at a later date. I disagreed with Barney Frank, but I do still wonder if his ability to think longterm made that the best strategy for the moment. For one thing, the lessening of confrontation seems to be allowing things like Will and Grace and Queer Eye for the Straight Guy to do the work of taking the edge off of American homophobia, and – who knows? – possibly advance the cause of gay civil rights even faster than shouting would have.

It’s still an uphill climb. Recently, the Catholic Church’s injunction against gay adoptions brought home the fact the battle is far from over. NARTH, the organization dedicated to the proposition homosexuality is a mental disorder, has on its website, reference to a letter by Mary Ann Glendon, a Harvard Law School advocate of “family values.” Unreasonable organizations like NARTH get to look reasonable when they have a Harvard lawyer they can cite to their advantage. She provides the patina of credibility to what is nothing more than a catholic ideological stance in a legal wolf’s clothing.

Let me show you what I mean. Here is one of Glendon’s articles, in italics, with my commentary. It’s lengthy, but bear with me. Her issues have to be responded to.

CAMBRIDGE, Mass.--President Bush's endorsement of a constitutional amendment to protect the institution of marriage should be welcomed by all Americans who are concerned about equality and preserving democratic decision-making. "After more than two centuries of American jurisprudence and millennia of human experience," he explained, "a few judges and local authorities are presuming to change the most fundamental institution of civilization."

It’s not a few judges and local authorities. It’s a sea change in the way homosexuality is viewed. You make it sound as if they were somehow usurping the right of the world not to change. You’re missing the larger social context. Besides, if you think this “most fundamental institution” called marriage has not changed over time, you might try reading a little history of marriage and the family.

Those judges are here in Massachusetts, of course, where the state is cutting back on programs to aid the elderly, the disabled, and children in poor families. Yet a four-judge majority has ruled in favor of special benefits for a group of relatively affluent households, most of which have two earners and are not raising children. What same-sex marriage advocates have tried to present as a civil rights issue is really a bid for special preferences of the type our society gives to married couples for the very good reason that most of them are raising or have raised children. Now, in the wake of the Massachusetts case, local officials in other parts of the nation have begun to issue marriage licenses to homosexual couples in defiance of state law.

What does cutting back on other social programs have to do with it? You are attacking one have-not community by making it seem the source of another have-not’s problems. Good legal defence, possibly, but not decent scholarship, and not very big in the integrity department. “Relatively affluent households” may characterize the gay people who have had the resources to take their case to court, but it does not characterize all gay people. Calling these people seeking justice unworthy because they have more money than the state’s poor is astonishingly dirty pool. Would you call any Jew’s demand for justice and fair play unwarranted because some Jews are wealthy?

A common initial reaction to these local measures has been: "Why should I care whether same-sex couples can get married?" "How will that affect me or my family?" "Why not just live and let live?" But as people began to take stock of the implications of granting special treatment to one group of citizens, the need for a federal marriage amendment has become increasingly clear. As President Bush said yesterday, "The voice of the people must be heard."

Of course the voice of the people must be heard. Just make sure you’ve got the voice of the people in their reasoned moments, and not when they are driven by fear and ignorance, and not when they are misrepresented by a political manipulator. As for this “special treatment to one group of citizens” bit, you’re not referring to catholics and evangelicals who want their religious rights to outweigh a claim for civil rights, are you? Take the beam out of your eye, madam!

Indeed, the American people should have the opportunity to deliberate the economic and social costs of this radical social experiment. Astonishingly, in the media coverage of this issue, next to nothing has been said about what this new special preference would cost the rest of society in terms of taxes and insurance premiums.

Economic costs? Radical social experiment? No more radical than giving women the right to vote was radical, than freeing the slaves was radical. Justice is radical only when a society is fundamentally unjust. And the economic costs? A lawyer is suggesting we should give up equity because it costs money?

The Canadian government, which is considering same-sex marriage legislation, has just realized that retroactive social-security survivor benefits alone would cost its taxpayers hundreds of millions of dollars. There is a real problem of distributive justice here. How can one justify treating same-sex households like married couples when such benefits are denied to all the people in our society who are caring for elderly or disabled relatives whom they cannot claim as family members for tax or insurance purposes? Shouldn't citizens have a chance to vote on whether they want to give homosexual unions, most of which are childless, the same benefits that society gives to married couples, most of whom have raised or are raising children?

Here again your logic is dirty. You are asking that one justice be delayed or denied because another is not in force. Do we close down good schools because we have bad schools? Do we stop ticketing any speeders because we can’t catch all speeders?

Aid to families with children is an issue which should be dealt with separately from whether their parents are gay or straight. Why are you making this argument now? Why did you not argue that married couples without children should be penalized earlier?

If these social experiments go forward, moreover, the rights of children will be impaired. Same-sex marriage will constitute a public, official endorsement of the following extraordinary claims made by the Massachusetts judges in the Goodridge case: that marriage is mainly an arrangement for the benefit of adults; that children do not need both a mother and a father; and that alternative family forms are just as good as a husband and wife raising kids together. It would be tragic if, just when the country is beginning to take stock of the havoc those erroneous ideas have already wrought in the lives of American children, we should now freeze them into constitutional law. That philosophy of marriage, moreover, is what our children and grandchildren will be taught in school. They will be required to discuss marriage in those terms. Ordinary words like husband and wife will be replaced by partner and spouse. In marriage-preparation and sex-education classes, children will have to be taught about homosexual sex. Parents who complain will be branded as homophobes and their children will suffer.

You’ve reached a bunch of very erroneous conclusions. There is no reason that marriage should be limited to those with children. Men and women past the childbearing years put their lives together all the time. Should they not be able to file joint tax returns because they don't have children? What of the thousands of gay people who were married to opposite sex partners previously and have children of their own? Your assumption that children in gay families are handicapped because they don’t have a male and a female parent overlooks the millions of people raised successfully in homes that do not fit this pattern, as well as the countless numbers of children who have suffered bad parenting in homes that do.

You are upset that children will be taught about homosexual sex. Good Lord, would you really want to withhold such basic knowledge from young people? Your prejudice is right up there on the surface! And are you “branded” as a progressive when you seek positive change? Are you “branded” as a conservative when you resist change? Sometimes a spade is actually a spade. And sometimes chairmen are replaced by chairpersons.

Religious freedom, too, is at stake. As much as one may wish to live and let live, the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination the likes of which we have rarely seen before. Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles.

Your fear is that the time may have come when the injustices visited on gays by people citing scripture and religious authority may be turned back on you and you may get a taste of your own medicine. Isn't the real issue here a respect for diversity? Nobody is asking you to become a homosexual, only to go your own way, marry the partner of your choice and give your fellow Americans who are gay the same right. There should there be no live-and-let-live policy for racism, sexism and other limitations on human rights in a civil society. Your religious freedom is not curtailed by extending civil rights to gays; only your right to assign rights to yourself that you withhold from others. Your right to religion gives you freedom to think and to worship and to speak out, not to use religion as a club. You may, if you wish, worship a God who prohibits miscegenation. You may not use public funds in a public arena to keep black kids out of your school out of fear they may marry your daughter. Your use of “religion” is self-serving and harmful to others who do not share your religious beliefs.

Finally, there is the flagrant disregard shown by judges and local officials for the rights of citizens to have a say in setting the conditions under which we live, work and raise our children. Many Americans--however they feel about same-sex marriage--are rightly alarmed that local officials are defying state law, and that four judges in one state took it upon themselves to make the kind of decision that our Constitution says belongs to us, the people, and to our elected representatives. As one State House wag in Massachusetts put it, "We used to have government of the people, by the people and for the people, now we're getting government by four people!"

The sea change of attitudes toward homosexuality has been evolving over decades. It will not be decided by a single act or a single branch of government. Blacks won their rights in the courts; gays sometimes do also. To suggest that a work in progress is an abuse of power is to trivialize the complexity of the system of checks and balances.

Whether one is for, against or undecided about same-sex marriage, a decision this important ought to be made in the ordinary democratic way¬–through full public deliberation in the light of day, not by four people behind closed doors. That deliberation can and must be conducted, as President Bush stated, "in a manner worthy of our country–without bitterness or anger."

At last, something we can agree upon.

Ms. Glendon is Learned Hand Professor of Law at Harvard.
Her article is available at:

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