Harvard Panel Discussion on Same Sex Marriage

It was a very brisk autumn day as I drove down the road by the St. Charles River I found that many of the bridges that span the river were closed. It was the annual crew regatta and people crowded the river as they cheered for their school’s boat. I navigated through the crowds and finally made my way to Pound Hall at the Harvard Law School.

I arrived just in time to hear the speech of the President of the American Civil Liberties Union (ACLU) Susan N. Herman. She is an accomplished attorney with a very impressive resume and spoke of how she was attracted to a career in law as a young student as a way of changing the inequities in American society. She went on to speak of the work, which the ACLU has been engaged in during the last administration. In brief, the ACLU has been battling to preserve rights such as habeas corpus for detainees in Guantanamo. After her presentation, there was a brief break and the moderator escorted me to a room for our panel discussion.

The subject of the Panel Discussion was “Same Sex Marriage, the Law and Society.” The other two panelists were Timothy Patrick McCarthy, PhD, a Lecturer and Director of the Human Rights and Social Movements Program at the Carr Center for Human Rights Policy at the Harvard Kennedy School. Maggie Gallagher the President and founder of the National Organization for Marriage (NOM). I was the third panelist. We were all ushered into a spacious room, which filled with attendees.

The moderator went to the podium and announced that Maggie Gallagher of NOM had called 30 minutes before the start of the Panel Discussion and explained that she would be unable to attend. A student who is a member of the Heritage Foundation and the Young Republicans took her place on the Panel that afternoon.

As the discussion proceeded, Maggie Gallagher’s surrogate delivered a protracted statement in which she made the assertion that same sex marriage threatened traditional (heterosexual) marriage. I was then asked to deliver a rebuttal. My rebuttal was to ask her “Specifically, HOW does same sex marriage undermine heterosexual marriage?” She was unable to deliver a competent explanation, but assured us that if Maggie had been there, she would have a very good answer.

Well, Maggie was not there; however, the thrust of the “traditional marriage” side seems to be an appeal to religion and the implication that “somehow” their position is morally superior. I pointed out that a “traditional religious marriage” in Saudi Arabia is one man and five wives. The Patriarch Abraham and King Solomon would be more at home with the Saudi Arabian concept of traditional marriage than with Maggie Gallagher’s. Marriage itself has undergone constant and radical redefinitions over the centuries and these socially conditioned changes continue even at this present date, it means different things in different eras, cultures and societies.

In our own society, an appeal to a “religious” notion of marriage runs into the brick wall of the non-establishment clause of our Constitution. The simple reality in the USA is that there is a sharp distinction drawn between Civil Marriage and Religious Marriage. Every citizen has a right to a civil marriage, but not every citizen has a “right” to a Catholic, Jewish, Protestant, etc marriage. Each religion may establish its own norms and exclude people from entering into a religious marriage performed by their faith. If you are divorced, for example, you are free to obtain a Civil marriage license and may be married at city hall; however, the Catholic Church is free to deny you a Catholic marriage.

What NOM and their financial backers are attempting to do, is to impose their narrow religious views of “traditional” marriage and make their theology the civil law of the land. Their claim that they wish to “fight for national and state laws that protect marriage and religious liberty” constitutes a deceptive manipulation of public opinion. Religious freedom is guaranteed by the free exercise clause of the Constitution and always has been. No one is suggesting that particular religions may not express their own beliefs and impose requirements on their voluntary adherents. What NOM, the Catholic hierarchy and the current leadership of the Mormon Church are in fact attempting to do, is to force their religious beliefs on all of civil society involuntarily.

This is the heart of the religious right’s position and it transcends the question of marriage. They fully understand the position that the California State Supreme Court took when it struck down the ban on same sex marriage. The California Supreme Court cited and quoted an amicus brief filed by the APA in the Court’s opinion issued on May 15, 2008 that struck down California’s ban on same sex marriage. Specifically, the court relied on the American Psychological Association’s (APA) brief in concluding that the very nature of sexual orientation is related to the gender of partners to whom one is attracted, so that prohibiting same sex marriage discriminates on the basis of sexual orientation, rather than just imposing disparate burdens on gay people.

The hierarchy of the Catholic Church knows this to be true because they themselves had stated something very similar. In 1975, the Sacred Congregation for the Doctrine of the Faith (the Church’s watchdog for orthodoxy) produced a document entitled: “Declaration on Certain Questions Concerning Sexual Ethics.” In this document, they made the most remarkable statement. They stated that there are “homosexuals who are such because of some kind of innate instinct.”

Marriage here is merely an incidental consideration, albeit an important one. It has been pushed to center stage, because the equal protection clause of the Constitution has been invoked as the justification for same sex marriage. Essentially, the hierarchy of the Catholic Church, the current leadership of the Mormon Church and other Scriptural Literalists do not want homosexual persons to enjoy equal protection under the law. They do not want them to be able to enter into Civil Marriages, they do not want them to be able to serve in the Armed Forces, they do not want them to be able to adopt, they do not want them to be protected in their employment, they do not want them to be socially recognized or, for that matter to be socially visible. On a de facto level, they seek to strike down the Non-Establishment Clause of the Constitution and codify their religious beliefs as the Civil law for us all.