You may have heard that the two lead attorneys challenging California’s Proposition 8 in Perry v. Schwarzenegger were actually the opponents in the infamous Bush v. Gore case of 2000. Yes, David Boies (who argued for Al Gore) and Theodore Olson (who argued for George Bush) are working together to fight for same-sex marriage.
And Theodore Olson has just written an absolutely brilliant article explaining why.
In “The Conservative Case for Gay Marriage (Why Same-Sex Marriage is an American Value)”, Mr. Olson tells Newsweek that arguments for prohibition of same-sex marriage are based on “superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights.” When I read the full article (which you should do by clicking here) I was speechless.
Mr. Olson, who describes himself as a “politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations,” is taking a lot of heat from his fellow conservatives. Many of them consider his involvement in the case to be an outright betrayal of conservative values, but he disagrees. In Mr. Olson’s mind, equality for gays and lesbians represents, “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.”
Like I said, you should read the full article. His explanations for why same-sex marriage shouldn’t be prohibited are poignant and inspirational. I’m including a few choice bits that really struck me, below. I’ve cut bits and pieces in the interests of being relatively concise, but here goes:
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 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. …
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.
I think Mr. Olson has done a tremendous job of knocking down some of the common arguments against permitting same-sex marriage — at least, the ones that are publicly stated by defenders of “traditional marriage” and “family values.” Even more impressively, he goes beyond the official rationales and digs into what I consider to be the two strongest contributing factors to anti-gay bias:
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.
It’s the classic fear of “the other” — many people in the majority of society don’t relate to homosexual impulses, find it strange, and reject what is not like them. But in my biased opinion, Olson’s next point addresses the biggest contributing factor:
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. …
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.
I firmly believe that religious teachings about homosexuality are the single biggest cause of this ongoing cycle of prejudice. Laws that discriminate against gay people would never be tolerated if they oppressed a larger portion of the population. Olson nails it:
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’m pretty sure Ted Olson can close out this post better than I ever could… So here goes:
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.
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.