Editorials

Harvard Prof Doesn’t Want Voters to Decide About ‘Marriage’- It’s People, Not Laws, that Make a Family
Homosexual Groups Distort Census Data

Harvard Prof Doesn’t Want Voters to Decide About ‘Marriage’

She Wants Lawyers and Judges to Issue a ‘Decree,’ Distorts ‘Marriage Amendment’ to Confuse Everyone

 It’s People, Not Laws, that Make a Family

By Martha Minow
December 2001

I became a plaintiff recently. Usually I teach law, and I occasionally participate in litigation. But now I am one of several plaintiffs challenging the constitutionality of initiative petitions intended to alter the Commonwealth’s rules and its courts’ powers concerning family relationships.

The petitions would amend our Constitution to permit legal recognition only of unions of one man and one woman as a marriage.

It is true that the Petition would amend the state Constitution. It’s also true that it would not change the present law in Massachusetts. When our Constitution was first passed, everyone knew that a marriage could exist only between one man and one woman; it wasn’t necessary to define it. But today, many groups are trying to change this to fit their lifestyles.

Therefore, it has become necessary for the voters to decide whether they want the law of our state to stay the way it has always been or be changed. If they wish to keep the definition of marriage the way it has always been, they will approve an Amendment to our state Constitution so that the present definition of marriage will be sure to continue.

The voters will decide this issue at the election in November 2004 unless Prof. Minow is successful at stopping the process.  

If enacted, the petitions would forbid any other kind of relationship from providing the basis for benefits or incidents of marriage as accorded by the Commonwealth, its agencies, or political subdivisions.

Public health insurance, bereavement leave, family medical leaves, allowances for surviving spouses, protection of the family home against creditors would all be confined to marriages between a man and a woman.

Objection. This lawyer is attempting to confuse. She cannot deny that ... “health insurance, bereavement leave, family medical leaves, allowances for surviving spouses” ... will not be changed for employees of any private company when the Amendment is approved in 2004. The Amendment will affect only employees of state or local governments. A private company will be able to provide any benefits to any employee that it desires.

However, taxpayers will not be required to pay benefits for the “partners” of homosexuals or for those straight couples who do not want the responsibility of marriage. (Under the domestic partner bill presently before the Massachusetts legislature, taxpayers would be required to pay for those benefits). The taxpayers will not be required to pay for any other group that also wants the right to marry, including bigamists or people who like group sex. (The costs for just the first year of the proposed law would be over $15 million if it were passed.)

It’s difficult to understand why the opposing lawyer threw in “protection of the family home against creditors” in her litany. This is just one of the incidents of marriage. Is she confused?

And judicial decisions about child custody and visitation would no longer be guided by the best interests of children but instead be confined by the proposed definition of lawful marriage.

Objection. This is not true. Why is she spreading these falsehoods?

For 20 years I have taught courses on children and the law and on family law. I have reviewed psychological studies, sociological trends, and historical evidence as well as legal materials. Research makes it irrefutable that a definition of family founded solely on an official marriage of a man and a woman is out of touch with how people actually live.

Census data indicate that married couples occupy only 52 percent of households,

That’s not true. Over 68% of households in Massachusetts are married couples, according to the 2000 census. The opposing lawyer got her misleading 52% by including as a “household,” any widow who lives alone, young people who live alone, etc. But obviously the fact that there are more such people living alone today does not diminish marriage in any way. She only wishes it did.

You can determine the truth of what I say by going to the data of the Census Bureau at www.census.gov.

and the number of unmarried couples living together grew over the past 10 years by 72 percent.

The fact that the number of unmarried couples has grown may give her solace, but it makes most of us very sad to see the plight of many of our children who are without both a mother and father. There are very few of us who are anxious to see that number increase.

Indeed, only 25 percent of households in the nation are composed of a married couple with one or more children under the age of 18.

So what? Now she is arguing that when a child becomes 18 or moves out of the house and goes to college, that that “household” becomes dysfunctional. Or when a husband dies and leaves a widow, that household is dysfunctional because it no longer has “a married couple.” The statistic she cites also shows that we have smaller families than before and therefore, the parents are without “children under the age of 18” much earlier than they used to be.

What obvious distortions and silly talk.

It is difficult to get a fully accurate picture of the number of households composed of same-sex couples and their families; people are often reluctant to identify themselves this way, and the US Census did not count such couples in the past. Nonetheless, nearly 1.2 million people reported in the 2000 Census that they are part of gay and lesbian couples.

And those people who are “part of gay and lesbian couples” total less than 1% of all the households in the country (.56% to be exact). Even if you subtract the households of people living alone, it would not come close to 1% of the households. (Do you remember two or three years ago when we were told that homosexuals were 10% of the population?) 

Additionally, multigenerational households and households where grandparents care for grandchildren and stepparents care for children are increasing nationwide.

When the law tries to impose norms out of step with actual lived experiences, enforcement and legitimacy of the law become serious problems. Moreover, legal rules bearing little relationship to how people live is not law, it’s ideology. Legal rules out of touch with people’s lives means that government expresses beliefs about how to distribute status and value instead of guiding behavior effectively.

No matter how hard she tries, she will never get people to agree that having a mother and a father is “out of step with actual lived experiences.” What is out-of-step with actual experience is a child living with two mothers or two fathers. Or a heterosexual couple having children without taking the responsibility to care for them. Or a group relationship which wants the other citizens to financially support their relationship.

As a single parent for fifteen years while raising three girls and a boy, I can personally attest to the fact that my children would have had a better childhood if they had had a mother present as well as their father.

There are many children who are successfully raised by arrangements other than a mother and father, but if we had to choose where we would be born, practically 100% of us would choose to have a mother and a father. Even most homosexuals agree with that.

But what really haunts me are the children growing up right now in households that do not include a married man and woman. For these children, the adults who matter to them matter because of the daily care they provide, not because of their ability to fit the traditional definition of marriage. For children, the marital status, biological or nonbiological connection, and sexual orientation of parenting figures is irrelevant. Children form strong attachments without asking about such things; indeed, children form strong attachments before they even know what it is to ask about such things. It is difficult to understand why two adults who share responsibility for children – whether they are partners, siblings, or a mother and her mother – would offer less of what children need than do married couples.

Those children also “haunt” most of us. That is why we do not want to increase their numbers. The research at best for her side shows that they are unable to demonstrate any inaccuracy in our innate belief that children are damaged by not having a mother and a father. The research for our side shows that they are damaged.

The homosexual activists are constantly saying that children who are “different” have serious problems in life. What a burden they put on these innocent children to fight the battle for homosexuals out in the world. How can anyone who loves a child place that burden on the child?

It’s difficult to understand how this lawyer finds it “difficult to understand” why homosexual couples “would offer less of what children need than do married couples.” It’s difficult for her only because she does not want to believe that all children desire a mother and a father. Many of them do not get that happy combination, but that is no reason for us to deny it to as many as we can.

Studies show that children raised in households with same-sex couples show no difficulties in school performance or emotional development when compared with children raised in households with opposite-sex couples. If the petitions pass, these children risk economic and custodial uncertainty as well as an upsurge of intolerance or rejection by peers. The state could tell these children and everyone who knows them that the government will not recognize their parent or give their parent the economic benefits given others. Even though the petitions would directly implicate only the benefits accorded by government, their adoption would feed discrimination and negative feelings spilling over to employers, insurers, and playground bullies.

The studies do not show that at all. There are studies on both sides of the question. Most of us do not need a “study” to answer this.

We must also remember that homosexual activists are deep into every professional group today. The prestigious American Psychological Association got into serious trouble in 1999 after publishing a study indicating that sexual molestation can have a positive influence on a child. It said we must eliminate terms like “molestation,” and “victims.” We should use neutral, value-free terms like “adult-child sex.” We should not talk about “the severity of the abuse,” but instead refer to “the level of sexual intimacy.” The psychologists were thereafter chastised by Congress by a vote of 355-0, after which they changed their minds and apologized.

So much for “studies” from many of these social scientists.

If Prof. Minow is truly concerned about the feelings of these children, she would not put them into the environment as she is doing now where they face serious problems of trying to defend and protect partners. That is not the role for any child.

The precise legal question of the lawsuit concerns whether these topics are even proper for voting by popular initiative. Our Constitution makes clear that rights of individuals and minorities would be jeopardized if any topic could be put to a referendum or initiative vote, and therefore, “No measure that relates to the powers, creation or abolition of courts shall be proposed by initiative petition.”

The petitions would do just this: They would deprive the courts of the ability to adjudicate matters about family obligations and benefits or even family status.It is to courts we have entrusted the responsibility to determine the best interests of children,

We have entrusted our children to the courts only if, and when, a family has failed, not before. Too many judges in our state are quick to impose their decisions on children and families that have not failed.

when a marriage should be ended, and what intimate partners owe one another.

Defining who is in a family and who is eligible for what benefits may pose some difficult factual questions. But that is precisely the context in which judges – not voters flipping a switch on an abstract proposition – are capable of attending to the needs and merits in particular situations. I am confident of the judiciary’s ability to do what is right.

This lawyer/professor wants to reject having the people decide this issue because she knows they will reject her ideas. She knows that the courts are her only hope (although it is a terribly slim one). But the Constitution was not written by judges, but by the people. And the Constitution should not be amended by the judges but by the people. Once the Constitution is written, then the judges can interpret it, but they do not write it.

Like many lawyers, she does not trust the people. She wants an elite group of judges to decide the important issues for the country. As one who spent some time at Yale Law School in the 1950s (which was considered by everyone to be the best law school in the country), I, and many others, do not stand in awe of Prof. Minow or her friends at Harvard.

We all know that the courts have done much good in our country and protected the people from tyranny. They have also done much harm such as the infamous Dred Scott decision of 1857 where the U.S. Supreme Court held that a black man had no right to sue in our courts, or where it held that a state could require separate railway facilities for blacks (1896) or that a state could tell a private school it must remain segregated (1908).

The Attorney General, Tom Reilly, who is an acknowledged friend of homosexuals, decided correctly last September the legal issue the Professor is challenging. He approved the question to be on the ballot in 2004. He said that the Amendment does not concern the power of the courts. He was right and the Professor knows it.

Martha Minow is a professor at Harvard Law School and editor of “Family Matters: Readings on Family Lives and the Law.”

Homosexual Groups Distort Census Data

December 2001

The homosexual groups, including Prof. Minow, have had a field day telling everyone that the number of homosexual households jumped dramatically in the 2000 census. But the Beverly LaHaye Institute, in the following report, shows that this is a total fabrication.

Recently, the Human Rights Campaign, an alliance working for lesbian, gay, bisexual and transgender equal rights, released reports claiming that Census Bureau data from the 2000 Census shows a dramatic increase in the number of households consisting of homosexual couples. Some reporters and editorialists have had a field day proclaiming hundreds of percentage points of increase in the number of homosexual couples in some states. Homosexual advocates have declared that the increase in homosexual households reflected more tolerant attitudes toward homosexuality. The Human Rights Campaign cited these alleged increases as evidence of “incredible progress.”

Those jubilant claims subsequently were cut short when the Census Bureau published a notice: “As a result of [technical] changes in the processing routines, estimates of same-sex unmarried partners are not comparable between the 1990 and 2000 Census.”

As it turns out, there are major problems with the data on homosexual households:

1) No Meaningful Way to Compare

First, no meaningful comparisons can be made between the 1990 and 2000 Census as it relates to the number of same-sex partners because the data was tabulated using different procedures. The differences in numbers of same-sex “married-couple” households in the 1990 and 2000 Census was due in large part to the way the Census Bureau interpreted the data.

In the 1990 Census, when same-sex “marriage” was not a legally permissible designation anywhere in the nation, couples of the same sex who identified themselves as a “spouse” were counted inconsistently by the Census Bureau, sometimes as a “married couple;” other times as siblings or roommates. Also, if one of the partners was more than fifteen years younger than the other, they might have been reported as child and parent.

In the 2000 Census, the Census Bureau used the 1996 Federal Defense of Marriage Act (DOMA) to invalidate same-sex spouse responses. The Census Bureau turned DOMA on its head by explaining that the invalidations as well as “social and legal aspects” of the problem necessitated putting the “spouse” designations of same-sex couples into a new category, “unmarried partners.” For the 2000 report, if respondents of the same sex designated themselves as a “spouse,” the Census Bureau counted them in the “unmarried partner” tally.

In short, there is no way that the Census Bureau data can provide an objective measure of an increase in the number of gay couple households in the U.S. since 1990, a fact bluntly stated twice in the Bureau’s unusual notice.

2) Didn’t Ask Question in 2000 ‘Short Form’

Second, the Census Bureau erred in eliminating the marital status question from the 2000 questionnaire and the so-called “short form” questionnaire for the 2000 Census did not even include a question about marital status.

This bureaucratic maneuvering precludes any meaningful interpretation of the census data regarding marriage and eliminates the possibility of comparisons with previous or future years and makes trends difficult to determine and predict when relying solely on Census data. Without uniform definitions of categories and consistent allocation of responses, the quality of the data is seriously degraded. We should note that the Census Bureau specifically stated: “estimates of opposite-sex unmarried partners [co-habitation data], however, were not affected by these editing procedures and changes, and are comparable between the two censuses.”

3) Percentage Increases Are Misleading

Third, percentage increases can be misleading. Percentage changes are especially dramatic when dealing with small numbers. With the most accurate estimates of the total homosexual population at 2% to 3%, real number changes are more meaningful than percentage changes. For instance, adding two pennies to one results in a 200% increase that distorts the relatively insignificant real number change.

Perhaps the most important lesson of this story is the illustration it provides about the use and misuse of statistical data in general, and about the use of Census Bureau data in particular. It is always a good idea to inquire about the wording of the questions that were asked as well as how the information was obtained from respondents and how the surveys were processed.

The Census Bureau utilizes volunteers who simply ask people questions about the characteristics of their households as they fill out official questionnaires. Then, they turn in the questionnaires to be tabulated by Bureau officials. The accuracy of the data the volunteers collect depends to a great extent upon the honesty of the people questioned and those who record their answers. The actual meaning that should be attached to the responses depends on how the responses are interpreted (coded) and tabulated by the Census Bureau.

Census data are still considered generally reliable and are indeed the most comprehensive source of information we have about the composition of American households. Nevertheless, it is important to keep in mind that any data source has its limitations as a source of truth. Social science statistics are certainly useful, and they can help shed light on a great many questions about human behavior. But they are always subject to interpretation, and they must always be considered in the context of how the data were collected, categorized and tabulated.

See Beverly LaHaye Institute at http://beverlylahayeinstitute.org.