Alan Lerner: The wrong policy at the wrong time

Proposals to amend the U.S. and the Pennsylvania Constitutions to deny gays and lesbians the right to marry each other, approved recently by the Senate Judiciary Committee, strike me as seriously misplaced. From my earliest childhood at home, and from at least Ms. Marks' 4th grade class at the Feltonville Elementary School, I have been taught that the Constitutions of the U.S. and of Pennsylvania are where one looks to find protection for people's rights, not to eliminate them. To me, the Constitution is no place to anchor the denial of the right to marry, a right so important to me and to our society. But the arguments continue.

These proposals are called "Defense of Marriage" amendments and are supposedly needed to protect heterosexual marriage. Yet, my marriage of almost 30 years, my parents' marriage of more than 50 years when my mother passed away, and my children's marriages don't need that protection. They are all just fine. And they would not change one whit if our gay and lesbian friends got married.

Successful marriages are not based on excluding some other equally committed couple from marrying. Successful marriages of persons of all faiths are based upon mutual love, commitment and respect. Every wedding ceremony that I have ever attended included those characteristics in the couple's vows. The argument that the value of any heterosexual couple's marriage needs "defending" or "protection" from gay or lesbian couples who wish to marry seems simply a matter of political "spin."

Perhaps because others find the "defense of marriage" argument so weak, the argument is made that the constitutional amendments are needed to preserve the tradition that marriage is only between a man and a woman. As a person of the Jewish tradition, who recently celebrated Passover at my family's annual Seder, a tradition that goes back to the time of Moses, and as a lawyer and a citizen deeply committed to the principles of liberty, equality, and pluralism that are the bedrock of this country, I agree that tradition is important for its own sake. But some traditions are simply bad, and some outlive their usefulness; both types are best discarded.

Our Constitution and Bill of Rights were, in the 18th century, radical departures from a tradition of being a colony governed absolutely by the British King and Parliament. For more than a century slavery was a tradition, but we fought a war to end it and replaced that tradition with freedom, equality, due process and the right to vote regardless of race in the 13th, 14th and 15th Amendments. Until fewer than 100 years ago it was a tradition that women had no right to vote. We changed that, too.

As for "traditional" marriage, it was not so long ago that a traditional marriage meant the wife was the property of the husband, and even more recently traditional marriage left the wife without the legal right to own property in her own name and gave the husband exclusive right over the couple's children if the marriage ended in divorce. Like colonial status and slavery, those were pernicious traditions, and it was a good thing for our society to discard them. Tradition is simply not sufficient reason to write into law the prohibition against gays and lesbians having the same right to marry that the rest of us enjoy.

It is also argued that gay marriage should be outlawed because homosexuality is prohibited in the Bible. Of course, right now every religious group is already permitted to set the standards for recognizing or refusing religious marriage based upon their faith teachings. More important is the essence of the 1st Amendment's separation of church and state in which nothing is either required or prohibited in civil law merely because of a verse of scripture. For example, we don't permit men to have more than one wife at a time, though the Bible did. We don't permit people to be stoned to death, whatever the crime, though the Bible did. We don't require employers to pay workers at the end of each day for the work done that day, though the Bible prohibits holding a worker's wages overnight before paying him. And the list of such differences between civil law and scripture goes on and on.

Moreover, we need only look to the work of the Taliban, the warring factions in Iraq and other such radical religious groups to see clearly the havoc that would flow from equating civil law to religious law. Whatever the words of the Bible mean, and they mean different things to different people, they are not sufficient reason to adopt a Constitutional amendment denying gays and lesbians the right to marry.

A fourth argument against gay marriage is that allowing gays and lesbians to marry will make many people who believe that marriage should only be between a man and a woman very uncomfortable. I don't doubt that that is so. Similar arguments were voiced against the Supreme Court's decision in Brown v. Board of Education, mandating desegregation of public schools and ruling that legally enforced segregation violated the Constitution's clause of "equal protection of the laws." Yes, many people were made very uncomfortable by the Brown decision; demonstrations were held, lawsuits filed, and churches and homes firebombed. But we survived our discomfort, and certainly the country and the world are better off because of that decision.

We know from our own lives that change is often painful. But it is often right and necessary. And when it is right, trying to stave it off by passing laws, such as the Jim Crow laws and other efforts to hold back the tide of equality and justice, inevitably fail and simply add to the pain.

These are difficult times. Our country and the world need to practice equality, not inequality, and inclusion, not exclusion. A constitutional ban on gay and lesbian marriage is the wrong policy at the wrong time.

Guest columnist Alan Lerner is a professor at the Penn Law School. His e-mail address is alerner@law.upenn.edu. This column first appeared in the Jewish Social Policy Action Network at jspan.org.

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