Special Report

A Rebuttal to Theodore Olson

Newsweek cover story on conservative case for gay marriage silent on polygamy, polyamory.

By 1.19.10

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.

This bedrock American principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike. The dream that became America began with the revolutionary concept expressed in the Declaration of Independence in words that are among the most noble and elegant ever written: 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.'"

ANSWER: Exactly. Turned into a "recognition of basic American principles" and a bow to "equal rights" one has to ask: Why does Mr. Olson give short shrift to polygamists and polyamorists? No basic American principles for them? No equal rights? Are these American citizens to now be forced into the unconstitutional wasteland where they cannot enjoy "Life, Liberty and the pursuit of Happiness"? Well, in Mr. Olson's world: yes. Big time. Until, at least, they can get a lawyer of the caliber of Messrs. Olson and Boies.

OLSON: "In 1857, the Supreme Court held that an African-American could not be a citizen."

ANSWER: Exactly to the point of judicial activism. Slavery was the gay marriage (and abortion) issue of the 1850s and decades previous. In the words of Judge Robert Bork, in Dred Scott v. Sandford slavery-owning Chief Justice Roger Taney sought to create "a right (to own slaves) by changing the plain meaning of the due process clause of the fifth amendment." Bork adds: "Taney did just that, and created a powerful means for later judges to usurp power the actual Constitution places in the American people." Like, for instance, the people of California who voted for Proposition 8 -- only to be told by Olson and Boies, in the style of Taney, that gay marriage is depriving gays of due process. Notably, Bork says this in his book The Tempting of America: The Political Seduction of the Law: "How did Taney know that slave ownership was a constitutional right? Such a right is nowhere to be found in the Constitution. He knew it because he was passionately convinced that it must be a constitutional law of the concept of ‘substantive due process,' and that concept has been used countless times since by judges to write their personal beliefs into a document that, most inconveniently, does not contain those beliefs."

Substitute "Olson" for "Taney" and "gay marriage" for "slave ownership" and one gets quickly to one of the disagreements to be had with Olson's argument by conservatives.

OLSON: "I cannot think of a single reason -- and have not heard one since I undertook this venture -- for continued discrimination against decent, hardworking members of our society on that basis."

ANSWER: Wow. Do polygamists not work? Do polyamorists like discrimination? Mr. Olson has written this extensive article and not one -- not one! -- mention of the obvious: that once the unique status of marriage is removed from the union of a man and woman, right behind the gay community are the polygamist and polyamorist communities and surely others. This is akin to arguing the Bush-Gore case and never once mentioning the word "Florida." By defining discrimination in this fashion Mr. Olson is saying, in essence, that he could care less about discriminating against polygamists and polyamorists. He is provocatively throwing discrimination in the face of Americans who wish, as do gays, different marital relationships. Saying, in the style of the segregationist supporting Alabama Governor George Wallace, "No polygamy or polyamory today, no polygamy or polyamory tomorrow, no polygamy or polyamory forever." Yet all the while Olson opens the legal door for the next Ted Olson to make the case that such a view is discrimination against those who desire other than monogamous relationships with a capital "D", a violation of the due process clause in a society that no longer recognizes the traditional man-woman marriage as a sacred, one of a kind.

OLSON: "The very idea of marriage is basic to recognition as equals in our society; any status short of that is inferior, unjust, and unconstitutional."

ANSWER: Fair enough. Not to pick on the guy, but former senator and presidential candidate John Edwards is much in the news lately with the book Game Change. The headlines revolve around Edwards' marriage to wife Elizabeth and his affair with mistress Rielle Hunter, with whom, it appears, he had a child. So let's take Mr. Olson at his word. Excepting any objections from Elizabeth or Rielle, what business is it of the rest of us if John Edwards wishes to be married to both women? And they agree? After all, "marriage is basic to recognition as equals in our society, any status short of that is inferior, unjust, and unconstitutional." Got it. Ladies and gentlemen, please greet Senator and Mrs. and Mrs. John Edwards. Ted Olson approves? Logically, he must. And in the spirit of Dred Scott and Roe v. Wade, so will the rest of us if the courts are allowed to override the constitutionally expressed desires of the American people, as in California.

OLSON: "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."

ANSWER: This is precisely the argument for polygamy and polyamory and getting rid of the traditional man-woman marriage, and Olson, as would be expected, makes it well. "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." Exactly.

Where is it written that a marriage between two people should be sacred? If gender is not sacred, why is number? America, as Mr. Olson would surely agree, is based on a Judeo-Christian tradition. And the Bible from which that tradition springs is quite clear that polygamy was no big deal. Specifically, Abraham, Jacob, David and Solomon all had multiple wives -- which is to say polygamist relationships. It is said of King Solomon1 Kings 11:3: "And he had seven hundred wives, princesses, and three hundred concubines…." 

The first American polygamist to get a good Olson-like lawyer will be able to cite both the Bible and Mr. Olson in his or her client's defense. At length. One tradition can be easily shrugged away in favor of another, old or new. Who cares? The rest of us should care.

OLSON: "Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.

"The simple fact is that there is no good reason why we should deny marriage to same-sex partners."

ANSWER: This one always amazes. The harm done to heterosexual marriage is obvious. The drive to legalize gay  marriage will over time open the door to legalizing any marriage relationship, with the law unable to close the Pandora's box that Olson is trying to pry open. Gay marriage is the opening wedge in a campaign to remove monogamy and heterosexual marriage from its sacred and unique place in society. Once done, it will become, precisely because of the legal views of Mr. Olson and others, just one of a slew of relationship arrangements that all manner of judicial activist judges, emulating Chief Justice Taney, will seek to approve. As Stanley Kurtz has said in an extensive look "Beyond Gay Marriage" in the Weekly Standard:

"There is a rational basis for blocking both gay marriage and polygamy, and it does not depend upon a vague or religiously based disapproval of homosexuality or polygamy. Children need the stable family environment provided by marriage. In our individualist Western society, marriage must be companionate--and therefore monogamous. Monogamy will be undermined by gay marriage itself, and by gay marriage's ushering in of polygamy and polyamory."

OLSON: "We represent real clients -- two wonderful couples in California who have longtime relationships."

ANSWER: Doubtless these people are wonderful. But there are a lot of wonderful people in the world who want all kinds of relationships that in fact are prohibited in deference to monogamous heterosexual marriage. Polygamists, polyamory fans, and, in the darker corners of the universe, man-boy love is but one variation for which arguments are made. Indeed, several years ago the city of San Francisco saw fit to make a leading advocate of man-boy love the grand marshal of its Gay Pride parade -- a parade in which the House Minority Leader Nancy Pelosi happily marched without a peep of objection that honoring someone connected with these beliefs was inappropriate. This is called "mainstreaming" -- and mainstreaming all manner of relationships is the goal of all types of people, with gay marriage viewed as the opening bid.

OLSON: "Our clients wish to be married. They believe that they have that constitutional right. They wish to be represented in court to seek vindication of that right by mounting a challenge under the United States Constitution to the validity of Proposition 8 under the equal-protection and due-process clauses of the 14th Amendment."

ANSWER: The 14th Amendment to the United States Constitution, like Proposition 8, came into being by a vote of the American people. Olson seems not to sense the irony of claiming validity for the 14th Amendment -- ratified in the fashion required by Article 5, just as Proposition 8 was passed and ratified in the manner required by California law. Both the 14th Amendment, to which Olson clings, and Proposition 8 are the law of the United States and California respectively not because they were imposed by an activist judge who shared Olson's sentiments. They are the law because they express, in constitutional fashion, the consent of the governed. What Mr. Olson wishes to do is skirt the hard work of convincing a majority of Californians that gay marriage is the appropriate public policy for Californians. Like abortion activists and slave owners before that, the idea is to impose by judicial fiat what cannot win the confidence of the people at the ballot box or as expressed through legislative intent at the state or federal level.

Quite aside from the issue of judicial activism, Olson is ironically doing damage to his cause -- not helping it. If the abortion issue has taught anything, it is that judicial fiats do not "settle" an issue. The very fact that abortion is still the divisive hot button issue it is -- almost forty years after Roe v. Wade -- is nothing if not testament to the inability of "pro-choice" activists to convince their fellow citizens and reach consensus on the issue. Indeed, Brown v. Board of Education was in fact about undoing the judicial activism that was Plessey v. Ferguson, a piece of judicial activism that in fact sought to undo if not override the essence of the post-Civil War 13th, 14th, and 15th amendments, not to mention the civil rights laws that immediately followed. All of which were passed by the will of the American people through the legislative process of the federal and state governments. Indeed, the landmark civil rights laws of 1964 and 1965 succeeded as they did because, contrary to the Olson strategy on gay marriage, they were the result of legislative, political, and popular consensus.

OLSON: "In fact, the California attorney general has conceded the unconstitutionality of Proposition 8…"

ANSWER: Sigh. The Attorney General of California is former governor, mayor, state secretary of state and who-knows-how-many-times presidential candidate Jerry Brown. He is in fact running for governor again -- and needs his left-wing political base. What else would Mr. Olson expect him to say?

To sum it all up.

Theodore Olson is one of the best lawyers in America, a man of honor and, most of the time, vast good sense.

Yet it seems inescapable here that Olson has erred. If he has the passion he expresses for gay marriage, then his time would be more constructively spent for his cause convincing the voters of California and indeed other states. Seek consensus, convince, persuade, make the case.

But, outstanding lawyer or not, resist the temptation to "resolve" this by judicial fiat.

It's the wrong way to go -- and is in fact slowly turning Mr. Olson into a champion of a cause one suspects he would be horrified to be identified with: destroying the institution of monogamous, heterosexual marriage in America, turning the country into a swamp of legally sanctified Other Relationships -- gay marriage, polygamy, polyamory and heaven knows what else.

Not good, not correct, and decidedly not conservative.

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About the Author

 Jeffrey Lord, a contributing editor to The American Spectator, is a former aide to Jack Kemp and Ronald Reagan. An author and CNN commentator, he writes from Pennsylvania at jlpa1@aol.com and @JeffJlpa1. His new book, What America Needs: The Case for Trump, is now out from Regnery Publishing.