For Better or for Worse?

By MARY ANN GLENDON

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."

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."

Ms. Glendon is Learned Hand Professor of Law at Harvard.