For Better or for Worse

MARY ANN GLENDON

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."

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.

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."

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.

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?

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.

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.

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!"

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."

ACKNOWLEDGEMENT

Mary Ann Glendon. "For Better or for Worse?" The Wall Street Journal (February 25, 2004).

This article reprinted with permission from Opinion Journal of The Wall Street Journal editorial page.

THE AUTHOR

Mary Ann Glendon is the Learned Hand Professor of Law at Harvard University. She writes and teaches in the fields of human rights, comparative law, constitutional law, and legal theory. In March 2004, Mary Ann Glendon was appointed by Pope John Paul II to head the Vatican's Pontifical Academy of Social Sciences which guides the Catholic Church's social policies. She is the author of A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights(Random House, 2001), A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society (Farrar, Straus & Giroux, 1994),Rights Talk: The Impoverishment of Political Discourse (Free Press, 1991), and (edited with David Blankenhorn) Seedbeds of Virtue: Sources of Competence, Character, and Citizenship in American Society (Madison Books, 1995).