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"Each individual should allow reason to guide his conduct, or like an animal, he will need to be led by a leash."
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Monday, January 11, 2010

A lifelong Republican on gay marriage

There is no doubt that Ted Olson is a conservative. He is a self-described "politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations" (he was Solicitor General under Bush from 2001 to 2004). His wife was killed on 9-11 while a passenger on American Airlines Flight 77 which was flown into the Pentagon.

It may seem unlikely, but Olson is one of three lawyers bringing a case in front of the US Federal Court attempting to have California's Proposition 8, which bans gay marriage, declared unconstitutional. The decision rendered in this case could have far-reaching implications for the status of gay couples all over the U.S.

Olson has written a must-read article in this week's issue of Newsweek - The Conservative Case for Gay Marriage, in which he lays out the argument that legalizing gay marriage, far from undermining conservative values, is in fact evidence that conservative ideals enjoy widespread support in the population. Conservatives with "a knee-jerk hostility toward gay marriage", to use Olson's phrase, should read the whole article.

Some excerpts:
Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.


What, then, are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.

The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite "tradition" as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate.


Americans who believe in the words of the Declaration of Independence, in Lincoln's Gettysburg Address, in the 14th Amendment, and in the Constitution's guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues. This is not a conservative or liberal issue; it is an American one, and it is time that we, as Americans, embraced it.

(I wrote a post on this subject in 2006 when our own Parliament was voting on the subject of gay marriage: Why gay marriage is good conservative policy. )


ward said...

Until someone can make a credible arguement of why the courts can change the definition of marriage for one group (homosexuals) while denying another group (polygamists), I dont think the rest really matters.

Polygamists in Canada would love to get into a courtroom, and I can't see any legal argument that would allow the courts to deny them the right to redefine the definition of marriage, while allowing homosexuals to do so.

It has nothing to do with how one feels towards homosexuality, and everything to do with avoiding the slippery slope that would render the current and traditional meaning and institution of marriage meaningless.

Eric said...


I've made the argument that gay marriage is NOT a precedent for polygamous marriage here and here. I think there are valid legal arguments that would support a court decision to outlaw polygamy and yet permit gay marriage. A failure of will on the part of law enforcement doesn't correlate with a lack of legal precedent, in my opinion.

L said...

Not quite right - we do not want gay marriage, as it is silly. Equal civil rights for pensiopns, insurance, fine..

Marriage has always existed to create children.

Eric said...


The article I linked to has Olson's rebuttal of your point:

The second argument I often hear is that traditional marriage furthers the state's interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?

This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What's more, it is pernicious to think marriage should be limited to heterosexuals because of the state's desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.

Anonymous said...

Look this issue was already solved before in the 'civil unions' concept. Gays did not need full blown marriage and this has been the problem from day one. (real conservative)

Anonymous said...

As usual gay rights activists enlist the assistance of politically correct lawyers and ivory tower, philospher king judges to ram through societal changes that benifit ONLY themselves.

The gay rights advocates know that their demands will never be accepted voluntarily by society so their only option is the courts.

They say they are acting in a libertarian fashion by supporting SSM but they see no problem in using some activist judge to over rule a democratic decision rendered by the people in a referendum.

All you need to enact your will is one politically correct judge who is terrified that someone might call him/her a homophobe.

Anonymous said...

"It may seem unlikely, but Olson is ... bringing a case in front of the US Federal Court attempting to have ...Prop...8, which bans gay marriage, declared unconstitutional. The decision ...could have far-reaching implications for the status of gay couples"

It's not "unlikely" at all. Lawyers and judges simply can't allow the unenlightened rabble to go around overturning their wise decisions with those pesky referendums.

The decision in this case would have far reaching implications on grass roots democracy.

....Message? "Don't bother trying to involve yourselves in law making peasnts"

Eric said...

It isn't really up to the straight majority to tell gays what they "need". Majority rule doesn't mean that the majority (or the "unenlightened rabble") gets to decide what rights the minority can or can't have, either by passing laws in the legislature or by referendum. That's why we have rights entrenched in the constitution (both in the US and in Canada) and an independent judiciary to enforce them.

zeppo said...

Note to Eric: I had to break up my comment in to two posts due to the 4096 char limit.

The problem I see with the arguments here is that they are all qualitative arguments and not legal arguments. I see this also with the arguments being presented in the California court.

Two of the most important items to note here are the following:
1. Prop 8 made a constitutional amendment, not a statutory amendment.
2. The tenth amendment grants residual authority to the states and the federal constitution does not mention marriage at all.

Many of the arguments in support of same-sex marriage try to expose the definition of marriage to a rational consistency test, i.e. same-sex marriage is analogous to opposite-sex marriage. The arguments center on procreation, tradition, equality, etc, but these are highly qualitative and not definitive.

The constitution is definitive: it is the law that defines the state and provides the fundamental definitions upon which the authority of the various legislatures, courts, and executive officers of the state rest. There is no requirement that the law be rationally consistent with itself. There is a requirement that the statutes generated by the legislatures are, to a high but not perfect standard, rationally consistent with the constitution but there is no requirement that the constitution be rationally consistent with itself.

For instance, Section 15 of the Charter in the Canadian constitution offers various equality rights and says that no discrimination may occur on the basis of race or religion for example. In contrast to that section we have indians/natives living on reserves and not paying taxes in many cases all under authority of the law. We have Catholic schools here in Ontario but not Jewish or Muslim schools all under authority of the law. How can this be? Are not the two aforementioned conditions in violation of section 15? They are but other parts of the constitution set out these specific exemptions: Section 25 of the Charter removes statutes governing indians from the purview of the Charter and it protects indian bands on reserves from litigation based on violations of the Charter (i.e. employment and residence based upon status under the Indian Act). Section 29 of the Charter removes religious school funding from the purview of the Charter.

The courts have repeatedly held that where a more specific provision in a constitution violates a broad provision in a constitution, the specific provision will hold. In this case the specific constitutional provision, as added by Prop 8, is the definition of marriage whereas the broad provision is one of equality in the Constitution of California (also in the federal constitution).

zeppo said...

2nd post - The Qualitative:

The equality (analogy) argument is highly qualitative. Why only two people in a marriage? Tradition? Desire? Where does the legal authority come from for the state to say only two can participate in this institution? Logically speaking, many if not all of the arguments made in favour of same-sex marriage can be made in favour of 'any gender and number greater than one of consenting adults' marriage because they all deal with the subjective perceptions of a person or persons excluded from the institution (i.e. 'I feel excluded from society'). Eric's arguments against polygamous marriage illustrate this. Many of his arguments are qualitative, and the ones dealing with more quantitative items, sex ratios, etc. are unproven. But if the adults are consenting, why should the state interfere? We have rights of freedom of association, thought, belief, and expression of belief in Canada (Americans have similar rights) , and being excluded from the institution of marriage certainly infringes on these liberties. So where does the authority come from for the state to say no to one group of consenting adults and yes to another?

Back to more legal arguments:

In the United States, the competency to define and solemnize marriages is left to the states via the 10th Amendment. This individual competency therefore includes the possibility that different states may define the institution differently, even in form. If the states must submit their competency to the very broad, qualitative equality rights section of the federal constitution then effectively the states surrender their competency entirely to the federal government because any difference between the states regarding the form of marriage would by definition be unequal.

In my opinion the authority for the state to say yes to one group of consenting adults and no to another comes strictly from the Constitution of the State of California. There is no 'law beyond the law'.

Eric said...


Thanks for the thoughtful comment. I agree with much of what you've argued, and in fact I think that the state should get out of the marriage business altogether & let consenting adults make their own arrangements. However, since we do have state-sanctioned marriage, the case for gay marriage stands.

I'm not an expert on the US Constitution, but from what I understand the argument is not so much about what states and state constitutions can do according to the 10th amendment, but rather the guarantee of equal protection to all citizens under the 14th amendment, and as upheld by Supreme Court case precedents such as Brown v Board of Education and Reed v Reed. Prop. 8 may be part of the constitution of California, but if it is deemed to violate the 14th amendment it will no longer be legal. The federal constitution would in that case trump California's.

As for the Canadian constitution, section 15 has been used by provincial courts to sanction gay marriage, and in Egan v Canada (1995) the Supreme Court ruled that sexual orientation should be considered as a prohibited basis of discrimination under section 15.

You may eventually be proven correct re: polygamy if the issue goes to the Supreme Court. My arguments against polygamy are indeed qualitative, but they provide at least a moral basis for opposing plural marriage while allowing gay marriage. Time will tell if the courts agree.