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Remembering Ted Olson’s Newsweek op-ed about gay marriage

Wednesday, July 21, 2010
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Ted Olson said he fully intends to take the Prop 8 trial to the US Supreme Court

Ted Olson, a staunch conservative and one of the attorneys challenging the constitutionality of California’s Proposition 8 (and the state’s ballot initiative process) in federal court wrote a lengthy but brilliant op-ed piece for Newsweek titled The Conservative Case for Gay Marriage:  Why same-sex marriage is an American value.

As we patiently await Judge Vaughn Walker’s ruling, let’s take a few moments to remember the highlights:

  • The very idea of marriage is basic to recognition as equals in our society; any status short of that is inferior, unjust, and unconstitutional.
  • Conservatives should celebrate gay marriage.  Same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation.  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
  • The 14th Amendment says “no State shall deprive any person of life, liberty or property, without due process of law; nor deny to any person the equal protection of the laws”.  What better way to make this national aspiration complete than to apply the same protection to men and women who differ from others only on the basis of their sexual orientation?
  • The Supreme Court has has set precedents establishing marriage as part of the Constitution’s protections of liberty, privacy, freedom of association, and spiritual identification.  Without it, there can be no true equality under the law.In Romer v. Evans (1996) the Supreme Court struck down a popularly adopted Colorado constitutional amendment that withdrew the rights of gays and lesbians in that state to the protection of anti-discrimination laws. And seven years ago, in Lawrence v. Texas, (2002) the Supreme Court struck down, as lacking any rational basis, Texas laws prohibiting private, intimate sexual practices between persons of the same sex, overruling a contrary decision called Bowers v. Hardwick (1986).
  • The Supreme Court has always considered marriage in the context of the underlying rights and liberties that marriage embodies, which are in no way confined to heterosexuals.
  • Simply because something has always been done in a “traditional” way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors’ prisons.  The fact that some states now honor same-gender unions further weakens the “tradition” argument.
  • The 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.  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?
  • Gay marriage does no harm to heterosexual marriage.  When [Judge Walker] 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.
  • Refusal to accord marriage to gays and lesbians tells them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. This serves no benefit to society.
  • I reject religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural.  Science has shown us that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual. To a very large extent, these characteristics are immutable, like being left-handed.
  • Society has changed since Brown v. Board of Education (1954) and Loving v. Virginia (1967).   I am convinced that Americans will be equally proud when we no longer discriminate against gays and lesbians and welcome them into our society.
  • We disagree with the notion that we have brought this case too soon, and that neither the country nor the courts are “ready” to tackle this issue and remove this stigma.  We do not tell persons who have a legitimate claim to wait until the time is “right” and the populace is “ready” to recognize their equality and equal dignity under the law.
  • 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.

The trial has taken much longer than expected, and will be appealed in the 9th Circuit.  It will almost certainly heard by the U.S. Supreme Court.

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