Gay marriage advocates must look to courts, not legislators

To the Editor:

Earlier this week, Gregory DuBoff argued that gay marriage activists are wrong to use courts to seek marriage equality because gays simply have no right to marriage and should instead seek change through the “political process” (“U.S. marriage laws perform crucial function,” 3/22). This argument betrays a misunderstanding of both the nature of rights and the history of social change in America.

Before 1954, the government did not recognize the right of blacks to be educated in the same schools as whites. Before 1967, interracial couples were not guaranteed the right to marry. These were protections granted them by the courts, acting as part of the American three-branched political process, in recognition that governments had circumvented rights explicit in the Constitution. These and other protections were won not by arguing that it would be in society’s best interest to give people of all races full equality in America, but by asserting that people of all races fundamentally had the right to equality guaranteed by the equal protection and due process doctrines of the Constitution, even if the government had decided that integration and miscegenation were better for society. Heaven only knows where we would be today if the civil rights strategy had been to try to persuade Southern racists to end segregation out of the goodness of their hearts.

Similarly, gays should not leave it up to the government to decide when it will or will not recognize that its current policy is based on irrational and invidious prejudice. Indeed, the strongest argument DuBoff can seem to muster against gay marriage is that gays have a low rate of monogamy, as if that justifies denial of marriage to gays, even while heterosexuals are granted marriage regardless of the rate of adultery and divorce in American society. We have a fundamental right and a constitutional right to gay marriage that the courts should and eventually will recognize in spite of DuBoff’s lack of confidence in the judiciary’s ability to distinguish marriage between two human adults and marriage between boys and dogs, their moms or multiple girlfriends.

If DuBoff supports gay marriage, it is unfortunate that he doesn’t realize that it indeed is a right that is being illegitimately denied us, not a policy question that is up for debate. If, on the other hand, he opposes it, then he has a lot of nerve to tell us to abandon the courts and seek marriage through the legislative process that would continue to deny us our rights if he had his way.

Fredo Silva ’04 LAW ’08

March 22, 2006

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