He is, after all, a hero to right-of-center folk, a terrific lawyer, a very smart guy, and has lived a tremendously consequential life. It’s a pity he never made it onto the Supreme Court; he would have been a superb Justice, but he has certainly found other ways to make a difference.
I am a fan of his for another reason, these days: He is ready, willing, and able to fight the good fight to ensure that same-sex couples will be able to marry.
Olson’s thinking on this and related matters is the kind of thinking that is entirely consistent with small-government conservatism and libertarianism: The government should stay out of the bedrooms of consenting couples. Transcending ideological issues, he is quite right to see that if same-sex couples want to commit to each other for the rest of their lives, buy a house with a picket fence, potentially have 2.5 kids, contend with a mortgage, and periodically argue with one another over who takes out the trash/cleans the house/attends to the kids’ soccer games/etc., then no governmental force should prevent them from doing so. I have had this argument with various people, and doubtless, I shall have it again, but like Olson, I have seen no evidence whatsoever that sexual orientation is a choice; same-sex couples no more choose to be attracted to people of the same sex than I chose to be attracted to women. There was and is no choice involved. It is simply the way we are wired. If consenting, same-sex couples are prevented from experiencing the joys of marriage simply because they are wired differently than are heterosexual couples . . . well, it’s difficult for me to imagine how that state of affairs could be considered fair or just, in any way, shape or form.
These are not legal arguments, of course. But they are public policy arguments, and sound ones to boot. It is clear that Olson believes in them, and that they shape his thinking, as he prepares to argue against California’s ban on same-sex marriage. As for the legal arguments, they are on Olson’s side. Marriage is a fundamental right, and previous Supreme Court decisions have affirmed that gays, lesbians, and bisexuals are beneficiaries of civil rights protections, and that laws criminalizing sodomy ought to be struck down. I can disagree with the rationale used in the majority opinion in Lawrence v. Texas, even as I agree with the result; Justice O’Connor’s concurrence is more persuasive than is Justice Kennedy’s majority opinion. But irrespective of my beliefs, the law is the law, and unless the Supreme Court is willing to overturn very recent precedent–and no one believes that it is–Theodore Olson is quite right to point out that the state must now clear the highest Constitutional bar there is in showing that there is a rational basis for forbidding same-sex marriage. The state usually does not clear that bar. It should not be found to clear that bar in this case.
I suppose that it ought to be noted that like Dick Cheney, Ted Olson has helped redefine what it means to be a center-right public figure taking a stand on same-sex marriage. Both his and Cheney’s views are in the minority amongst conservatives, but perhaps there is a growing realization that however isolated Olson and Cheney are, at the end of the day, they are also right. I hope that this realization takes hold among more conservatives, and I expect that it will. In fighting the good fight on this issue, Olson and Cheney will need all of the help they can get.
In the meantime, kudos to both of them for speaking out on this issue. And here’s hoping that Ted Olson notches another legal victory as part of an already-stellar legal career.