Ted Olson Makes the Conservative Case for Gay Marriage


Prominent trial lawyers David Boies and Theodore Olson are arguing the unconstitutionality of Proposition 8 in California federal court this week, in the case of Perry v. Schwarzenegger. Day-by-day trial coverage is available on the Firedoglake blog and the Courage Campaign website. Meanwhile, Newsweek recently interviewed both the liberal Boies and the conservative Olson to explain why their support for gays’ civil rights transcends left-right politics. Olson’s comments represent the best of that libertarian tradition that has sadly been drowned out by theocratic social conservatives during the past decade of GOP ascendancy. An excerpt:

…The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life’s joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution’s protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

It is true that marriage in this nation traditionally has been regarded as a relationship exclusively between a man and a woman, and many of our nation’s multiple religions define marriage in precisely those terms. But while the Supreme Court has always previously considered marriage in that context, the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals.

Marriage is a civil bond in this country as well as, in some (but hardly all) cases, a religious sacrament. It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state’s support and benefits. The California Supreme Court described marriage as a “union unreservedly approved and favored by the community.” Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.

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.

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.

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. On the other hand, there are many reasons why we should formally recognize these relationships and embrace the rights of gays and lesbians to marry and become full and equal members of our society.

No matter what you think of homosexuality, it is a fact that gays and lesbians are members of our families, clubs, and workplaces. They are our doctors, our teachers, our soldiers (whether we admit it or not), and our friends. They yearn for acceptance, stable relationships, and success in their lives, just like the rest of us.

Conservatives and liberals alike need to come together on principles that surely unite us. Certainly, we can agree on the value of strong families, lasting domestic relationships, and communities populated by persons with recognized and sanctioned bonds to one another. Confining some of our neighbors and friends who share these same values to an outlaw or second-class status undermines their sense of belonging and weakens their ties with the rest of us and what should be our common aspirations. Even those whose religious convictions preclude endorsement of what they may perceive as an unacceptable “lifestyle” should recognize that disapproval should not warrant stigmatization and unequal treatment.

When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.

I understand, but reject, certain religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural; and I take strong exception to those who argue that same-sex relationships should be discouraged by society and law. Science has taught us, even if history has not, 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. And, while our Constitution guarantees the freedom to exercise our individual religious convictions, it equally prohibits us from forcing our beliefs on others. I do not believe that our society can ever live up to the promise of equality, and the fundamental rights to life, liberty, and the pursuit of happiness, until we stop invidious discrimination
on the basis of sexual orientation.

If we are born heterosexual, it is not unusual for us to perceive those who are born homosexual as aberrational and threatening. Many religions and much of our social culture have reinforced those impulses. Too often, that has led to prejudice, hostility, and discrimination. The antidote is understanding, and reason. We once tolerated laws throughout this nation that prohibited marriage between persons of different races. California’s Supreme Court was the first to find that discrimination unconstitutional. The U.S. Supreme Court unanimously agreed 20 years later, in 1967, in a case called Loving v. Virginia. It seems inconceivable today that only 40 years ago there were places in this country where a black woman could not legally marry a white man. And it was only 50 years ago that 17 states mandated segregated public education—until the Supreme Court unanimously struck down that practice in Brown v. Board of Education. Most Americans are proud of these decisions and the fact that the discriminatory state laws that spawned them have been discredited. I am convinced that Americans will be equally proud when we no longer discriminate against gays and lesbians and welcome them into our society….

I can almost forgive the guy for helping George W. Bush get elected…

Read more of Newsweek’s trial coverage here. Offering another good sign that the Right is splintering on this issue, Cindy and Meghan McCain, the wife and daughter of 2008 Republican presidential candidate Sen. John McCain (R, Ariz.), posed for promotional photos for the NO H8 website–despite the fact that the senator himself opposes gay marriage. Score one for feminism.

4 comments on “Ted Olson Makes the Conservative Case for Gay Marriage

  1. Russ Clarke says:

    It is interesting to read your blog on allowing homosexuals to marry especially when harping on about your country’s constitutional rights and ‘State recognised relationships’ there is only one that has the authority on any relationship and that is the Lord Jesus Christ Himself, yet you make no mention of Him! It is what He thinks that matters, not judges or senate or President or anyone who thinks having a title gives them power over the design of God for this world! Marriage is a bond between a male and a female who make a covenant between themselves and God and become united in Him. The Man is a representation of the Christ and the woman is a representation of the Church and the relationship between the Christ and the Church is what marriage is all about, in the first instance marriage has nothing to do with us, it is to do with Christ and His bride, the Church. On saying this, you will understand why I also say that marriage is for Christians only for the reasons I have just mentioned, therefore all your ‘state recognised relationships’ ‘civil partnerships’ other religious marital ceremonies are not in covenant with God who is the one who ordains marriage, therefore are null and void and the majority of people (non Christians) who think they are married are nothing more than people living together, the woman having a new second name and a piece of paper signed by a member of a corrupt government who have no real authority merely saying they are married! I will state that homosexuality and any union included is an abomination towards God and His creation and we need to pray for the grace and mercy of God to fall on our nations. It is the act of homosexuality that God hates and not the people themselves.

  2. Jendi Reiter says:

    I normally don’t publish comments like this one, but I’m sharing Mr. Clarke’s words to remind us what we’re up against. Homophobia is not just something for gay people to worry about. It’s part of a complete theocratic, misogynist agenda that (contrary to Christ’s own values) is threatened by secular society’s movement toward greater equality for people of all genders, sexual orientations, and faiths.

    “The Man is a representation of the Christ and the woman is a representation of the Church”, Mr. Clarke writes. I see where he finds this symbolism in the Bible–the same Bible, however, that says “In Christ there is no male or female”. The church includes both men and women, and so in a sense we are ALL brides, regardless of gender, in relation to Christ the bridegroom.

    Taking this symbolism too literally, as Mr. Clarke does, implies that men are divine and women are merely human. Absolutizing gender differences in a way that entrenches inequality seems contrary to the pattern of Christ’s actions in the gospels. He was always relativizing social differences in order to improve the conditions of the underdog group. There’s not one instance where he did the reverse–unless you count his initial reaction to the Syro-Phoenician woman, and she quickly set him straight!

  3. John McCallum says:

    Jendi you are taking Biblical truth out of context. You are doing the evil one’s work. With you around we do not need Lucifer any more. You corrupt the message of truth and purity all by yourself.

  4. Jendi Reiter says:


    Wow. I had no idea I was so important.

    For a different view of Jesus, look here.

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