High-powered conservative lawyer Ted Olson, the man who argued the case for the George W. Bush campaign in Bush v. Gore, today pleaded a court in San Francisco to strike down the ban on gay marriage in California approved by 52 percent of the state’s voters in 2008. The ban is discriminatory, he told the court, and “adds yet another chapter to the long history of discrimination these individuals have suffered.”
The case will be decided without a jury by U.S. District Judge Vaughn Walker. The proceedings were scheduled to be YouTubed, but attorneys arguing in favor of the ban thought their witnesses might be targeted for retaliation by the internet-watching masses, a strange kind of reverse persecution anxiety.
Olson has had to defend his pro-gay marriage position often to his conservative friends and fans. He penned an essay laying out his thinking for Newsweek. The essay is titled “The Conservative Case for Gay Marriage” and in it he refers to the patchwork of laws, including Colorado laws on the matter, that make a mockery of justice. Olson told the editors he thought it was important to put thoughts on these kind of historic issues in writing. Excerpts and a Newsweek video interview after the jump.
Olson in Newsweek:
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.
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.
[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. 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.
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.