Did not get around to this article by George Bush’s Solicitor General Ted Olson yesterday. See link. Olson stunned many conservatives last year by agreeing to appear in federal court to argue that California’s Proposition 8 which overturned California’s judicially declared constitutional right should be held unconstitutional.
On a personal note my views on the subject have evolved from the camp of legalize but don’t call it marriage to supporting full legalization. The primary motive for my shift is that “civil unions” and other non-marriage alternatives may not carry the same protections in some states or across state lines plus a realization that my original position had very little logical support. Like Olson, I simply do not buy that legalizing gay marriage and encouraging couples to enter into a committed relationship will somehow weaken heterosexual marriage. No fault divorce and a 50% divorce rate would seem to be the greater threats to the institution of marriage.
Sexual orientation is not a protected category under the 14th amendment and as such does not get special protections. So long as these bans serve a rational purpose (a lower standard of review than strict scrutiny applied to the protected categories) they are constitutional. If you subscribe to Scalia’s “Original Meanings” school of interpretation to the constitution (for which I personally do not find much justification in history) then the historical understanding of marriage as a heterosexual institution will win the day. The question is whether on a constitutional basis, the legalization of homosexuality, allowing homosexuals to adopt and create family units and the odd result in California where as Olson notes 18,000 homosexual couples are legally married but cannot remarry will be sufficient to win the day.
As a matter of political strategy, I am not sure this is the wisest course to pursue. I understand why gay couples feel that they cannot wait any longer, but a court decision that abruptly terminates the political debate (particularly when the side for legalizing gay marriage has lost every public referendum held on the subject) will create resentment and backlash. It will also add to the populist outrage against “unaccountable” courts that the conservative right has been feeding off since Brown vs. Board of Education and even more so after Roe vs. Wade.
On an institutional level it does have the feel of judicial legislation in the face of public opinion which can be a dangerous road for courts to follow. As a practical matter, time is on the side of those favoring legalization. Much of the opposition to the idea comes, not surprisingly, from older Americans. Also, as the few states that have legalized gay marriage via the legislatures show that legalization is not the harbinger of Armageddon public opposition to the idea will diminish. But then, it is easy for me to counsel patience on a subject that does not impact me directly.
As this battle winds on, the next step in the war about marriage is beginning. If the courts can legalize homosexuality, the arguments for criminalizing polygamy which is recognized by many world religions (not to mention was practiced by many of the prophets and kings of the Old Testament and was rationalized by Martin Luther for political reasons in the case of Philip I the Magnanimous, Landgrave of Hesse) is even weaker. As Jonathan Turley noted in this article a few years ago, the rationale and the language used by the Supreme Court in its 1878 decision supporting the ban would not hold water today. A new front in the culture wars is about to begin.
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Comments
This is the civil rights issue of our generation. Ted Olson is on the right side of history. 40 years from now we will be embarassed by our luddite views on sexual orientation.
I disagree. I have racked my brains on this one. Gay couples should be afforded all the rights as heterosexual couples EXCEPT the use of the word “marriage”. Why is this debate always framed in the context of equal rights. Its purely a semantic debate in my opinion. If Ted is the only conservative in support of this, I must be the only liberal against it. Marriage is just a definition to describe two people in union of different sexes. I propose using the work “Gayrraige” to describe same sex couples.
Do people of a different race agitate to be called caucasian, because the term is somehow discriminatory? It merely describes a race. If you deny them rights based on their race, yes, then its discrimination.
(a) If it is a semantic discussion, why does it upset you so much. Logically it should not matter. Marriage will still remain a legal (and in some cases religious) contract establishing the cohabitative family unit. Its not as if the definition of marriage has remained static over the centuries.
(b) There are legal consequences to creating a separate category of “Gayrraige.” This is not automatically portable in terms of legal protections when you move from state to state. Also, the Federal government does not recognize it and grant the protections of law and benefits afforded to marriage (another hurdle is the Defense of Marriage Act passed by Clinton which will also have to be struck down or repealed). Also, since you bring up race this reeks of the “separate but equal” justification for segregation put forward by the Supreme Court in the 19th century case of Plessey vs. Ferguson. As it turned out, and as the legal effects on the ground today show, the different classifications in practical terms will be “inherently unequal.”
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