Newsweek cover story on conservative case for gay marriage silent on polygamy, polyamory.
There may be a more respected conservative lawyer — or lawyer period - out there, but surely former Bush Solicitor General Theodore Olson sits at or near the top of such a list.
History will remember Olson forever as the lawyer who won the Bush-Gore election at the bar of the U.S. Supreme Court. Millions of Americans quiet at the remembrance of the 9/11 drama that took the life of Olson’s wife, conservative commentator Barbara Olson, as she frantically dialed the Solicitor General in his Justice Department office while the plane on which she was a passenger was being piloted by terrorists towards its infamous mission at the Pentagon.
Time, blessedly, moves on, and Olson is in the news these days as a partner with his old adversary David Boies, his opponent in the Bush-Gore episode. Al Gore and George W. Bush’s lawyers have teamed up to make the case for gay marriage, specifically by seeking the legal undoing of California’s voter-approved Proposition 8. The ballot measure, an amendment to the state constitution banning gay marriage, was passed by Californians in the November 2008 election.
Olson was given the cover of the liberal Newsweek magazine to make “The Conservative Case for Gay Marriage: Why same-sex marriage is an American value.”
Appearing in a news cycle close both to the earthquake in Haiti and the hot Massachusetts U.S. Senate race, Olson’s argument has perhaps not received the attention that it deserves. It should, if for no other reason than to be rebutted.
Daunting as it may be for a non-lawyer to take on no less than Ted Olson, (one feels an uneasy kinship to the guy on the end of that famous Clint Eastwood line — “Do ya feel lucky, punk? Well, do ya?”) — it does seem a (hopefully) cogent rebuttal of sorts is required.
Let’s take the Olson case point by point.
OLSON: “My involvement in this case has generated a certain degree of consternation among conservatives. How could a politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations, challenge the ‘traditional’ definition of marriage and press for an ‘activist’ interpretation of the Constitution to create another “new” constitutional right?
“My answer to this seeming conundrum rests on a lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, and on my rejection of what I see as superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights.”
ANSWER: Doubtless there is consternation. But consternation is not the point here. The fact that Olson seeks to impose the values of a handful of elite lawyers and judges on the people of California when they have made their views not only plain but constitutionally plain under the law is what concerns. Mr. Olson’s “lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics” is apparently limited to a resulting sympathy for gays. He leaves a telling omission in this article. What about polygamists? Or those who prefer group relationships? Or other marital relationships that do not currently pass muster in the eyes of the law — marrying under the age of 18, for example? Or that favorite of some, man-boy love?
OLSON: “Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage.”
ANSWER: Having been through this discussion in depth as a result of the stance of the national hierarchy of my own United Church of Christ — which supports gay marriage, a stance not adopted by all churches within the denomination, mine included — Mr. Olson is only partially correct here. For reasons biblical, in the main. But there are others who, as Mr. Olson also notes, have gays as family members and friends. I would be in that category. It is a decided mistake to label support for man-woman marriage as hostility to gays. It is not correct, and in my experience has not proved true even among many of those who believe the Bible forbids homosexuality. There is considerable support for health benefits, hospital visitation rights etc., all of which can be separated from marriage.
OLSON: “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.”
ANSWER: Mr. Olson, again, opens the legal barn door to the legalization of both polygamy and polyamory as well as the legalization other relationships. He insists that marriage is one fine institution, no holds barred. The participants think beyond their own needs. They are transformed “into a union based on shared aspirations” and establish “a formal investment in the well-being of society.” Duly noted. So is the curious limitation on the number of partners — two. More of which below.
OLSON: “Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation’s commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.
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