Questions & Answers on same-sex marriage, democracy & civil rights

The citizens of Massachusetts have petitioned our state Legislature in Boston to send to the 2008 referendum ballot a proposed amendment to the state constitution on marriage. The amendment reaffirms marriage as the union of man and woman and would require new marriage licenses to be issued only to opposite-sex couples. Opponents of the amendment who support same-sex marriage call this prejudice and a denial of civil rights. Defenders of traditional marriage call this democracy and a vote for common sense.

The proposed Marriage Amendment reads: “When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union between one man and one woman.”

Opponents argue that this proposal is “discriminatory,” “takes away civil rights,” and creates a “tyranny of the majority” if approved by the voters., the ballot committee sponsoring the Marriage Amendment, has produced a white paper in response, called “How Civil Rights Are Born--By Democracy, Not Lawsuits.” The following are questions and answers drawn from this document, which can be read in its entirety at or

Q: First of all, why is this amendment being proposed, and what would it do?

A: The Marriage Amendment responds to the 2003 ruling of the Massachusetts Supreme Judicial Court that redefined marriage in the laws of the Commonwealth. As a result of the decision in Goodridge v. Department of Public Health, the state must issue marriage licenses when same-sex couples apply. Also, the ruling now forces everyone to recognize these licensed unions as legally valid marriages. The Marriage Amendment responds to the Goodridge case by constitutionally protecting the traditional definition of marriage going forward, requiring the state to issue new marriage licenses after 2008 only to opposite-sex couples.

Q: Isn’t this discrimination?

A: When that word is used as an attack, it is meant to accuse supporters of traditional marriage of being guilty of unequal treatment based on bias, hatred or prejudice. Former President Bill Clinton, when signing the federal Defense of Marriage Act into law in 1996, banning same-sex marriage in federal policies, rejected the charge that he was being discriminatory in this negative sense.

In remarks made at the bill’s signing, Clinton reiterated that “Throughout my life I have strenuously opposed discrimination of any kind, including discrimination against gay and lesbian Americans.” He did not equate a ban against same-sex marriage with “discrimination of any kind.” Instead, he “want[ed] to make clear to all that the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation.” He saw no contradiction between his being “long opposed [to] governmental recognition of same-gender marriages” and his stance against unjust discrimination. Nor should we.

Q: But isn’t there a contradiction? If one supports protecting the civil rights of gays and lesbians, then how can one oppose same-sex marriage as a civil right?

A: Civil rights should not be conceived in a way that cancels out human rights. Children have a fundamental right to experience the parental love and marital commitment of both a mother and a father. Turning same-sex marriage into a civil right forces the state to be indifferent to the intentional marital exclusion of a mother or a father from a child’s life. Such a drastic legal change is based on the unproven assumptions that a woman can provide all that a man provides in the vocation of fatherhood or a man can provide all that a woman provides in the vocation of motherhood.

One must recognize that those with same-sex attraction are persons of immeasurable dignity because they are loved by God. This is fully compatible with the conviction that marriage between a man and a woman provides the optimal setting for children. All persons have, or should enjoy, basic civil rights. But redefining marriage should not be treated as a civil right when it affects the rights of children. Insisting that both sexes be included in the definition of a social institution created for the benefit of children is not a contradiction or the fruit of prejudice, but common sense.

Q: But there are plenty of married couples who can’t have or don’t want children. How are children relevant to the civil rights question?

A: Individual circumstances of childlessness, whatever the cause, do not warrant the changing of a social institution’s design. Marriage, as traditionally understood, is structured to promote mutual love and respect between the two very different halves of the human family. Even a childless marital couple consisting of a man and a woman in their eighties, for example, provides an unparalleled witness to all of society, especially to others’ children, of the possibility and merit of bridging the most fundamental human difference--sexual difference--through a life-long commitment. Only the relationship between man and woman teaches that both halves of the human family are equally worthy of love and honor. Neither side is left unrepresented. The complementarity of man and woman, lived out in marriage, and involving both sexes, is an irreplaceable lesson for, and directly relevant to the interests of both boys and girls. Civil rights should not ignore this human reality--instead their creation should build on it.

Q: Yet same-sex marriage is already a civil right in Massachusetts and the proposed Marriage Amendment would take that civil right away. Don’t you think that’s unfair?

A: This raises the issue of how civil rights are born in a democracy. Before a civil right can be threatened with being taken away, it has to be created. In our form of government, a civil right first comes into legal existence through the democratic process. Democracy, not litigation, is the source of civil protection.

A civil right, or more properly a particular claim’s legal recognition, arises from the democratic enactment of constitutional documents or amendments, or through the passage of legislation. Behind every claim given authentic civil status is a democratic vote, whether by the people or by their elected representatives.

So it makes no sense that rights claims should not be put to a democratic vote when it is precisely a popular or representative vote that creates civil rights in the first place.

There never was a vote of the people or an act by their elected representatives that authorized the legalization of same-sex marriage in Massachusetts. Instead, the mandate to issue marriage licenses to same-sex couples was the handiwork of four of the seven unelected judges in the 2003 decision in Goodridge v. Department of Public Health that dictated the change. What is unfair is that now that same-sex marriage is to be treated as a civil right per judicial command, those who disagree will be subject to legal sanction for non-compliance.

Q: Wait a minute, before we talk about the impact of the Goodridge decision, let’s go back to the role of the courts. Surely you aren’t saying that the people control civil rights policy? If that’s the case, then where would we be today if the question of racial integration were left to the people back in 1954. What if in deference to democracy the U.S. Supreme Court never issued the Brown v. Board of Education ruling that struck down racial segregation? Wouldn’t we still be discriminating against blacks?

A: The Supreme Court’s desegregation ruling was unpopular in 1954, but it was not undemocratic. Democracy had a hand in the Brown decision because almost a century earlier Congress and the States, acting through the people’s elected representatives, adopted the Fourteenth Amendment to the U.S. Constitution. The court referred to that amendment and to the history behind it as a basis for its 1954 desegregation order. The court said it was clear that the people who backed passage of the Fourteenth Amendment in the 1800s did so primarily as a response to racial discrimination. No shifting democratic majorities could avoid the strictures of that amendment as long as it was still law. Thus the court relied on the democratic command issued through the passage of the Fourteenth Amendment to strike down popularly enacted segregation laws.

As for the people’s role in a democracy over and against that of the courts, that is exactly what a democracy is, the rule of the people. Sometimes we forget what we mean when we refer to government officials as public servants. As our state constitution reads, “All power residing originally in the people, and being derived from them, the . . . officers of government, . . . whether legislative, executive or judicial, are their substitutes and agents, and are at all times accountable to [the people].”

Q: Yet the Massachusetts Supreme Judicial Court also relied on a democratically enacted constitutional provision as a basis for striking down our marriage laws in the Goodridge case. The SJC simply applied the terms of our state constitution, and those terms guarantee due process and equal protection. How is that any different from what happened in the Brown ruling?

A: The background is very different. When our state constitution was ratified by the people in 1778, same-sex marriage obviously could not have been the object. Nor can anyone argue that John Adams, the principle author of our constitution’s Declaration of Rights, intended to sneak in such a civil right. Such would have been unthinkable. There was no public debate over the issue and thus no decision by the people to redefine marriage through passage of the Massachusetts Constitution. The general references to due process and equal protection were not understood as condemning a universally accepted definition.

Much later, in 1976, the voters of Massachusetts approved the Equal Rights Amendment to the state constitution barring discrimination on the basis of sex. Was this when democracy overturned centuries of traditional marriage, which some argue is a form of sex discrimination? Not so. Supporters of the ERA disavowed any intent to endorse a civil right to same-sex marriage. The evidence that same-sex marriage was not at issue in the ERA debate was so clear that even the SJC had to acknowledge it in the Goodridge case. So the people were never asked to back the creation of a new civil right to same-sex marriage and unlike the case with racial discrimination, democracy never directed the courts to enforce such a civil right.

The four judges in the majority of the Goodridge decision simply took it upon themselves to condemn support for traditional marriage as something as evil in their opinion as racism. In effect, a ban against same-sex marriage was no better than a ban against interracial marriage, the judges argued. They characterized the belief that marriage is only the union of a man and a woman as nothing more than irrational prejudice based on a hatred against gays and lesbians. They cited earlier court decisions declaring that racism could no longer be tolerated by the government in support of their call to eradicate “bias” in the marriage context. The Goodridge decision thus laid the legal groundwork for persecution. And it did so without any warrant from the democratic process.

Q: Persecution? What’s that mean? No one is forcing anyone to do anything. The Goodridge case simply gives same-sex couples the freedom to marry. How does that hurt anyone else?

A: Look at it this way. The four judges in Goodridge essentially accused supporters of traditional marriage of being bigots, couching this in smooth legalese. Echoing the charge, our U.S. Senator from Massachusetts, Ted Kennedy, dispensed with the legal niceties a few months ago when he wrote in an op ed that the defense of traditional marriage was “bigotry, pure and simple.” Just before the constitutional convention opened on July 12th of this year, a coalition of religious groups backing same-sex marriage held a press conference at which Cardinal Se n O’Malley and the other Catholic Bishops were urged to silence their appeals for action on the Marriage Amendment because they were supposedly “promoting prejudice, intentionally or not.”

As a practical matter, every time supporters of same-sex marriage accuse the other side of bigotry and hate, they amplify the inevitable--if it is considered hate to believe that marriage is the union between one man and one woman, then policies and actions reflecting that belief must be squelched and the perpetrators, so to speak, must be punished. That’s what happens when a claim is converted into a civil right. Those who are guilty of interfering with a civil right must suffer the consequences. The minute you compare someone to racists, then the government will have to treat them like racists. And racists are not welcomed under the law.

Q: Can you be more specific about the legal consequences of the Goodridge ruling?

A: Certainly. The Goodridge ruling not only gave same-sex couples access to marriage licenses, but also requires as a constitutional matter that those licenses must be recognized and honored in every context that a license held by an opposite-sex couple is recognized and honored. So, while the Catholic Church and other religions may not be forced to perform same-sex weddings, they will have to treat all marriage licenses the same in circumstances outside the sacramental context. For instance, in any offices that provide social services, as opposed to religious services, the policies governing benefits for married couples will fall under the new mandate.

In particular, the failure to give equal treatment to same-sex marriage licenses now will have to be considered a form of sexual orientation discrimination. We saw a variation of this theme with the situation involving Catholic Charities in Boston. There are two state regulations prohibiting adoption agencies from discriminating on the basis of sexual orientation. State authorities told Catholic Charities that the refusal to facilitate adoptions by same-sex couples violated these regulations, and that the goal of eliminating such “discrimination” overrode any consideration of religious freedom. The same calculus will now apply to marriage policies that on religious or moral grounds fail to recognize and honor marriage licenses held by same-sex couples.

There’s an even more disturbing consequence. Now that same-sex marriage must be treated as a civil right, two state laws on the books that prohibit the interference with civil rights by both official and private parties come into play. The attorney general and any private individual has the right to sue for damages and injunctive relief, and prosecutors can bring criminal charges against anyone accused of obstructing another’s civil rights. Due to the wording and judicial interpretation of these civil rights laws, any appeal to morality in defense of not recognizing same-sex marriage in one’s policies or actions will be deemed a form of “coercion” or “force” interfering with the so-called civil right created by the SJC in Goodridge. This makes all defenders of traditional marriage vulnerable to legal attack.

Finally, the Goodridge ruling has bolstered the effort to indoctrinate our children, especially those who attend public schools. Teachers are being warned that they must promote same-sex marriage in the classroom or face sanctions. Parents are being denied the opportunity to preview and to pull their children from lessons promoting same-sex marriage. Parents who protest are being handcuffed and hauled into custody by the police. Whenever these official actions are challenged, the school officials reply that same-sex marriage is legal, so what’s all the fuss about anyway?

All this demonstrates that by turning the whole question of marriage into a civil rights issue, and accusing defenders of traditional marriage of harboring bias and hate, the SJC has provided the legal impetus for a new persecution that will be far reaching.

If for no other reason the people should vote on the Marriage Amendment in 2008, it is because there should never be legal persecution that is not backed by the democratic process. Democracy is not perfect, so it is not always sufficient, but it is always necessary when the punishment of people is contemplated. On such fundamental questions as the meaning of marriage, the scope of civil rights, and the degree to which citizens are to be identified and punished as bigots, it is the people that should possess the ultimate power to declare a judgment. Leaving it to the unchecked discretion of judges to pronounce what is a marriage, a civil right, or bigotry, is the worst of all options.

Q: Even so, using the ballot to decide the rights of a minority is wrong, isn’t it? Even the founders of our country warned about the tyranny of the majority. How is putting the marriage rights of gays and lesbians up to a vote any different?

A: The very design of democracy contemplates majority rule by the people through a popular vote. As one of our country’s founders Thomas Jefferson once wrote, “I know no safe depository of the ultimate powers of the society, but the people themselves. And if we think them not enlightened enough to exercise their control with a wholesome direction, the remedy is not to take it from them, but to inform their discretion.” That’s exactly what a ballot campaign does--it informs the people why the policy at issue should or should not be endorsed.

Tyranny involves a total power grab and should not be mistaken for the normal operation of the democratic process. If a ballot campaign is conducted on the marriage question, those supporting same-sex marriage will have ample resources to make their side heard. In Massachusetts particularly, they enjoy the support of much of the media, are backed by prominent civic leaders, can call on the resources of numerous professional associations and unions, and, based on other marriage campaigns in other states, will have the necessary financial means at their disposal. These are hardly the earmarks of a powerless minority just begging to be tyrannized.

Putting the Marriage Amendment to a vote in 2008 would give the people a fundamental choice. A vote by the people against the amendment would ratify the Goodridge ruling, thus agreeing with the punishment of traditional marriage supporters as bigots. A vote by the people for the amendment would reaffirm the traditional definition of marriage as a matter of common sense, thus denying that its defenders are as evil as racists.

It’s a stark choice, and a momentous one. Given the stakes, the people should decide it.