The enemy at the Gates

[Eric Freedman]

-Would social conservative oppose this proposal? -E.



             ***********
      Eric M. Freedman
Maurice A. Deane Distinguished Professor
 of Constitutional Law
      Hofstra Law School
      Hempstead, NY  11550
      LAWEMF at Hofstra.edu
      Tel. 516-463-5167
      Fax 516-463-5129
  Home Office:
   Tel. 212-665-2713
    Fax 212-665-2714
            ***********

>>> <DavidEBernstein at aol.com> 10/30/05 11:30 AM >>>
For those who believe there is a constitutional right for homosexuals to 
marry: Is the right a right to "marry," or to have available the same privileges 
and incidents of marriage as heterosexuals?  In other words, would the 
constitutional right to marry be satisfied by a state law providing homosexuals with 
the right to "eternal domestic partnership" that was, in all relevant legal 
ways, the same as marriage, except that the term "marriage" was statutorily 
reserved for heterosexual couples?

In a message dated 10/30/2005 11:22:31 AM Eastern Standard Time, 
paul-finkelman at utulsa.edu writes:
Earl:

Is there much of a distinction between having the right to marry as 
being the "enemy" and the gates and being the person who wants that 
right to marry?   Recall the last great fight over the right to marry, 
involving interracial marriage.  The arguments were often the same -- 
such relationships violate the law of god (recall the Bob Jones case); 
such relationship will destroy society; such relationships harm 
children; they are a bad moral influence on the commnity; if those 
couples move into our neighborhood, housing prices will go down, etc. 
The poeple who made such arguments against the right to marry (the 
"enemy at the gate" in this context would have been interracial 
marriage) also opposed the civil rights of one half of the group that 
might be involved in an interracial marriage (blacks) and considered the 
other half to be disreputable, often calling them godless, communists 
(or godless communists), and perverted.  

It seems to me that to argue that the *right* to marry is the "enemy at 
the gate" is essentially to argue that those who want that right are the 
enemy.  Those who oppose same sex unions should not hide behind some 
constitutional technicality about who the enemy is. Those who oppose 
same sex unions are in favor of denying fundamental rights to a class of 
people based entirely on their gender. They do this out of fear, 
paranoia, homophobia, or the belief that they are entitled to force all 
Americans to accept their religious views.  Same sex marriage does not 
harm them, they are not forced to participate in it.  Their churchs 
would not be forced to sanctify such marriages.  The marraiges in could 
not personally affect them in any way.  They are not even forced to be 
close to such marraiges, in the way that an integrated restaurant forced 
racists to sit next to blacks while they ate. Nor, can this be the 
equivalent of  the issue in Roe, where someone might argue that a fetus 
is a person (which many disagree with) and therefore might argue that 
choice harms a person.  Gay marriage involves only consenting adults and 
harms no one else. Thus, the issus is about fundamental rights for all 
people.

Since same sex unions cannot possibly harm those who oppose them, we 
must assume that they oppose them becuase the marriages offend their 
sensibilities.  It srikes me as a sophistry at best to say that the 
"right" to marry is the "enemey at the gates" but that the people who 
want that right are not "the enemy."  It would be the equivalent of 
saying that the right to integrate was the"enemy" at the gates for 
Strom Thurmond or Lester Maddox, but that Martin Luther King, Jr. or 
Rosa Parks were OK folks.  But we know better.  Civil Rights advocates 
were the enemy at the gates, such as gay people and their straight 
allies and friends are the enemies of those who oppose civil rights for 
all Americans.   Let's at least be honest about who the enemy is!  If 
you oppose giving people equal rights -- especially in a democracy -- it 
can only be because you think they are NOT "created equal" and NOT 
"endowed" with the "unalienable rights" of "Life, Liberty, and the 
Pursuit of Happiness."  

Those of us who believe in equality -- whether gay or straight -- are 
surely are the "enemy at the gates"  to those who oppose equality.  

Paul Finkelman

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste