Ten Perspectives on the Expression of Views Opposing Same-Sex Marriage in North Dakota

Several pieces have been published in North Dakota newspapers criticizing the North Dakota Law Review for lack of balance in issue 83:4, which contains six articles opposing same-sex marriage, including mine. Since the law is a profession that is based upon giving opportunity for expression of all sides of controversial issues concern for access to all sides of the same-sex marriage issue is legitimate. However, before criticizing the law review, one must examine the facts. I offer the following ten perspectives.

First, there is great imbalance in American law review literature in favor of same-sex marriage. In 1996 there were 67 articles supported same-sex marriage and only one article opposing same-sex marriage; the last time I checked (about 2 years ago) the most recent ratio was between 4-and-5 publications favoring same-sex marriage to every piece opposing. From the perspective of balance in the American legal literature it must be admitted that the issue of the North Dakota Law Review contributes to rectifying the overall severe imbalance

Second, most issues of most law reviews that have published on same-sex marriage have not been balanced issues, but have published only articles on one side (favoring same-sex marriage). Thus, by publishing articles on one-side of the same-sex marriage issue only, the Law Review only did what most law reviews have done. It is unfair to criticize the ND Law Review for doing same thing that other law reviews have done, but not to criticize the other law reviews. That shows a double-standard.

Third, it appears that the real objection of the Law Review critics is not to one-sided issues of law reviews, but to the expression of views that they dislike, such as those that oppose same-sex marriage. To disagree with such views is fine; to point out the flaws in those views is legitimate; to argue against them is appropriate; however, to attack the expression of such views is tragic for free speech, for journalism, and for an informed citizenry. Most of the criticism has come from supporters of gay marriages. They should be free to express their views on the issue, but should respect the right of those who have different views to do the same.

Fourth, I sent letters to the editors of two North Dakota newspapers that had published pieces in which my article and the law review had been sharply criticized. Neither would publish my response to the pieces that had personally criticized me by name. It is more than ironic for a newspaper to publish pieces complaining of ‘lack of balance’ or ‘one-sided’ publications, but to refuse to publish a letter in response.

Fifth, the issue of the Law Review also made an important and courageous effort to resist the attempt to silence academic and professional voices that oppose same-sex marriage. That is very important, especially given the kind of criticisms of the ND Law Review. The use abusive language is especially inappropriate. The harsh criticism of the Law Review and its articles discourages intelligent discussion. Such language has a chilling effect upon the expression of views opposing same-sex marriage. That is one reason it is hard to get “balanced” issues published; reasonable scholars on both sides are reluctant to address an issue that provokes such nasty reaction and mud-slinging. The intemperate criticism of the North Dakota Law Review is an excellent example of attempts to silence by criticism, condemnation, and punitive speech.

For example, comments like one politician’s intemperate op-ed (In-Forum, August 6, by F) labeling my law review article “homophobic propaganda,” and “homophobic editorializing” or a gay rights organization’s charge that the law review issue was a “homophobic screed” (GrandForks Herald, August 7, by M) are sadly inappropriate. Such name-calling has a chilling effect upon the expression of views opposing same-sex marriage. Such attacks cause the problem they complain of.

Sixth, Dean LeBel of the Law School has emphasized that the student editors openly invited any writer to submit an article, and actively solicited pieces from many scholars. That is more than many law review boards do to invite diverse perspectives. It is often difficult to get persons from all perspectives to contribute to such an issue. As the co-convener of several academic symposia addressing legal aspects of same-sex marriage, I know that it is not easy to get people on both sides to participate. Uncivil language (such as noted above) makes people less willing to speak or publish on controversial issues in “mixed” company where people who disagree with them might make such vicious attacks.

Seventh, important public issues like same-sex marriage should not be decided by default, by silencing those who express contrary views, or by making personal attacks. That is why I began my article quoting from Elie Wiezel’s “Night” – to encourage people to speak up on the issue. The very first name mentioned by Wiezel in the very first line of his auto-biographical account of the Holocaust was not his beloved father’s name, or his beloved mother’s name, or the name of any other relative who were victims of the Holocaust. It was the name of “Moishe the Beadle,” whom Wiezel honored for his effort to warn his neighbors of the dangers that he saw coming. Moishe was ignored, and my article emphasizes that those who warn of dangers to marriage, family and society from legalizing same-sex marriage must be prepared to be belittled and marginalized like Moishe the Beadle, but should speak up anyway. The critical responses to the North Dakota Law Review is exhibit A of that kind of inappropriate effort to silence by harshness.

Eighth, in my law review article, I also quoted Wiezel in the conclusion of my article. He said: “I swore never to be silent . . . . We must take sides.” (My paper was first read at an international conference in Poland, where Wiezel had been imprisoned in the terrible death/labor camps, so quoting Wiezel on this point was doubly relevant!) Despite the abuse from politicians and special interests, we must, as Wiezel said, speak up and take sides rather than be silenced. The excessive attacks on the North Dakota Law Review and its recent articles sadly illustrate the point I was making about the courage needed to stand up and speak out on this issue.

Ninth, my article was criticized by one local politician for including the well-known quote by Pastor Niemoller about the need to not be silent on important issues just because one is not immediately affected. That honorable statement has been quoted by several distinguished law professors in at least 24 different law review publications in the past seven years including journals at Harvard, Nebraska, Villanova, Brooklyn, Cardozo, St. Thomas, and Case Western Reserve law schools, including in articles discussing or mentioning same-sex relationship issues.

Finally, in the conclusion of my article I wrote: “One of our responsibilities as parents, citizens, and especially scholars is to warn of dangers, to find where the threats to our fundamental social institutions exist, and to warn of social proposals and trends that may threaten loss of things we value. We value marriage. While some people think that same-sex marriage is quite harmless, it is as a disaster in the making. All of us who realize and recognize this have an obligation to raise a warning voice.” That is what free speech and democracy are about. I respect the right of persons who favor same-sex marriage to express their viewpoint about the benefits and lack of harm of same-sex marriage, but I cannot understand why they feel compelled to label, attack and silence those who disagree with them.

I commend the North Dakota Law Review for publishing its recent issue, and I am honored to have been published in it. The attempt to silence, suppress, intimidate or punish the expression of views opposing same-sex marriage through name-calling only vindicates the publication of that issue.