I Have Always Been A Fan Of Ted Olson . . .

by Pejman Yousefzadeh on August 19, 2009

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.

  • robspe

    This is nonsense. How can “same-sex” couples have children? Children are, until the gene machines get going, the product of a man and a woman. And what business has government got interfering in the lives of its citizens by licensing their relationships, at the expense of the unlicensed, without at least some sort of excuse, like the welfare of children? To whom one is attracted for purposes of pretend sex is irrelevant. A government license means nothing. Why is it such a focus for those who hate social conformity to such a degree that they refuse to be a part of the continuation of the race of Man? Gay marriage is a smokescreen for invidious undermining of real marriage. And the slippery slope to polygamy is real.

  • Pejman_Yousefzadeh

    1. Same-sex couples can have children either through IV fertilization, or through adoption.

    2. One might just as easily ask what business government has interfering in the lives of its citizens by forbidding relationships between consenting adults.

    3. When we discuss same-sex marriage, orientation is a prime part of the debate.

    4. People are not gay or lesbian because they “hate social conformity.” And as mentioned, lesbian women can become pregnant through IV fertilization, so stating that they “refuse to be part of the continuation of the race of Man” is silly.

    5. Neither your marriage, nor that of anyone else's is threatened by gay marriage. And gays and lesbians have no interest whatsoever in waltzing around, trying to “invidiously” undermine “real marriage.” That's tinfoil-hat thinking.

    6. The slippery slope is considered a logical fallacy for a reason, something you ought to consider before invoking it. It is patently absurd to say that “because we have same-sex monogamous marriage between consenting adults, we now have to agree to polygamy.” We can easily and honestly draw the line forbidding polygamy, while at the same time allowing same-sex monogamous marriages.

  • robspe

    Yes, Mr. Y, I have heard all these arguments before. I'm not convinced and I do not see any reason to allow government a new reason to take some people's money and give it to others. As to the children, whether adopted or generated from some other man's genes, they are not the children of the “couple”. I'm not saying adoption is always a bad idea. But the whole idea of adoption is to give children a chance at a normal life. What's normal about a hypothetical “marriage”? The picket-fence rhetoric does not apply to the enormous majority of homosexuals, whose rates of promiscuity are orders of magnitude higher than heterosexuals. The risk of instability is correspondingly increased.

    Government does not have any business “forbidding relationships”. But marriage with a government license is not an inherent right for anyone, even those who actually generate children to keep the society going. It is a government benefit, subject to the usual political problems. Refusing a government benefit is not “forbidding a relationship”.

    As to the slippery slope, what is the principle that forbids polygamous “marriages”? You specify gay “monogamy”? On what grounds? The best interests of the child? For centuries that best interest has been determined to be having a real mother and a father. For centuries the line has been drawn forbidding gay “marriages”. On what ground is it extended? Pretend housekeeping doesn't make a man into a wife or a woman into a husband. Why not three husbands or four wives? After all, they're in love. So they say. You say that gays have “no interest” in undermining marriage. Changing the definition of marriage is undermining it. And gays apparently have an interest in changing the definition of marriage, and of love, with no apparent principled limit.

    Let's limit government interference to the smallest compass possible. I find it absurd that as millions of heterosexuals abandon traditional government-sanctioned marriage, gays demand government approval of their unions patterned on the traditional model. What reason other than envy and resentment of perceived bias could they have for that stance? Just as some radical Indians adopted the term “Native American” to exclude the white man, even those born in America, and therefore “native” in the real sense of the term, out of being a real “American”, so gays resentful of their differentness are trying to define marriage as anything anyone wants it to be. That is an attack on traditional marriage. Words mean things. Fake undermines the genuine. Let's stay real.

    Robert Speirs

  • Pejman_Yousefzadeh

    1. No one is talking about taking money from some people and giving it to others.

    2. So long as the relevant adoption laws are followed/so long as the children come from the fertilized eggs of one of the people in a lesbian couple, they most certainly are the children of the couple.

    3. There is nothing “hypothetical” about a same-sex marriage once it becomes legal. I do not think that word means what you think it means, to quote a line from a movie.

    4. Please cite evidence concerning how the “rates of promiscuity” for gays, lesbians, and bisexuals are “orders of magnitude” higher than they are for heterosexuals, especially once the gays, lesbians, and bisexuals in question have entered into a monogamous relationship. You have no evidence to offer on that issue.

    5. Marriage has been deemed a fundamental right under the Constitution, contrary to your suggestion in your second paragraph.

    6. The principle that forbids polygamous marriages is that one cannot treat multiple spouses fairly. I specify same-sex monogamy because that is what same-sex couples want; the right to marry another person whom they love, and the ability to commit to that person for the rest of their lives, just as heterosexual couples do. Allowing for same-sex marriage no more undermines the institution of marriage than allowing African-Americans equal rights undermined American society. To the extent that you believe same-sex marriage “undermines” traditional marriage, please cite sociological statistics and evidence in support of the proposition. You have offered none, and assertion is not argument. As for the rest of the assertions in your fourth paragraph, they are red herrings, presented in scattershot format. Talk of “pretend housekeeping,” and unsupported assertions about how have an interest in changing the definition of love “with no apparent principled limit” are frankly silly, myopic, and utterly misinformed.

    7. I have no problem keeping government out of the marriage business. Unfortunately, there are too many instruments of government seeking to get into the marriage business and deny same-sex marriage to a portion of the population. If you were discriminated against, you would feel “envy and resentment” as well, and the bias is not just perceived, it is very real. Your analogy to Native Americans makes no sense and is inapplicable to this discussion; indeed, I have no earthly clue why it has been offered. Contrary to your unsupported and unsupportable assertion, gays and lesbians are in no way, shape or form trying to redefine marriage to “anything anyone wants it to be.” As with much of the rest of your comment, the rest of your final paragraph is assertion without argument, lacks all evidentiary foundation, and is largely not even on point concerning the discussion at hand.

  • e_pluri_unum

    PY: “The principle that forbids polygamous marriages is that one cannot treat multiple spouses fairly.”

    Pejman, how is this any less arbitrary and subjective than Robert's argument? You know nothing about my ability to equally love multiple spouses — who are you to deny me marriage based on your small-hearted, duo-normative assumptions? I simply want the right to marry the people I love, and the ability to commit to them for the rest of their lives, just as heterosexual and homosexual couples do. How can you justify extending this to homosexual couples only to cruelly bar the polyamorous from the same basic right?

  • Pejman_Yousefzadeh

    Feel free to lobby for polygamous rights, then. But the difference between polygamous relationships and monogamous ones is that monogamous relationships are much more the norm in western societies. And they are the norm precisely because of society's belief that one cannot treat multiple spouses fairly.

    It no more follows from the legalization of same-sex monogamous marriages that we ought to have polygamous ones, than it follows from the existence of heterosexual monogamous marriages that we ought to have polygamous ones. We can draw the line, and we do draw the line in innumerable similar circumstances, which, again, is why the slippery slope argument is a logical fallacy.

  • e_pluri_unum

    Pejman, your response is a prime example of the thoroughgoing duo-normative prejudice we polyamorous face every day. While you admirably reject anti-homosexual bigotry, you still have no awareness of just how bigoted you are toward polyamory. It is a sexual orientation in its own right, and one which I cannot change any more than hetero or homo couples can change theirs, yet you would discriminate against me because of this part of my nature.

    You say that monogamous relationships have legitimate standing because they have been long preferred, but the truth is until just this century it was only monogamous *heterosexual* relationships that were preferred. Limiting marriage to only two people merely seems self-evidently “normal”and “proper” in the way that limiting it only to heteros did in the recent past. You need to carefully examine your own unthinking prejudices and realize you are no different than those who would still deprive gays of the right to marry by defining marriage in a discriminatory way.

    I am simply asking for the right to a marriage that respects my sexual orientation, just as homosexual couples asked for and are finally being given. The fact that you are unable to love more than one spouse at a time gives you no right to arbitrarily decide that 2 is the defining limit to marriage, any more than your not being sexually attracted to men gives you a right to arbitrarily decide that it must by nature include only a man and a woman. Being polyamorous in today's narrow-minded society brings with it tremendous stress and suffering as we try to live out our love in a system that needlessly warps and rends and dissects our relationships. Giving us our right to marry will allow the spouses and children of our wide-embracing families the stability and security to grow and flourish that all others take as a given.

  • Pejman_Yousefzadeh

    We can be facetious about this until the cows come home, and really, the comedy act is performed admirably. At the end of the day, however, your comment does nothing to address (a) the polygyny/sexual imbalance problem that comes with polygamous relationships, or (b) the clear and obvious refutation of any analogy between polygamy and homosexuality; there is not, after all, any evidence whatsoever showing that polygamy is a hard-wired sexual orientation like heterosexuality, homosexuality, or bisexuality.

    If you want to continue to be facetious, that's your right, but I have nothing more to add on this issue. Oh, and in the event that this thread and my arguments are a subject of mirth amongst some of the RedState Contributors, do tell the gang in question that I say hello.

  • tolonaro

    re: “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.”

    There is good reason to believe that humans have pheromones as well as all other animals. To argue otherwise is to believe that humans are not animals! (At least one humna pheromone has been identified – I believe involving trusting the other). From the analogy with animals, sexual reproduction must have pheromones involved. The anecdotal evidence would suggest that “falling in love” has a strong pheromone component; the proverbs about the value of “propinquity” in love in another.

    Child rearing shows other evidences of pheromone exchange between parents and children (survival chances implies that physical parents do better than non-physical parents.).

    The point is that there is evidence that male-female relationships are different from male-male or female-female. (Band of brothers – there is such a thing as male bonding – pheromones but clearly not shared by or with females). Thus there is a physical basis for recognizing that a male-female relationship has a special dimension.

    Incidentally, the fact that all societies throughout history recognize that marriage is different from homosexual relationships is another argument for recognizing that marriage is different. Cultures recognize reality, even when they can't explain it.

    OK, this doesn't deny that homosexuals have feelings or that they feel compelled by those feelings. It just says that they are not the same as those driving heterosexuals into marriage. Well, there are non-phenomenal reasons for what people do, including marriage. the argument is just that there is a physical reason behind limiting marriage to male-female.

  • Pejman_Yousefzadeh

    There is far more to the issue than pheromones; genetics are at play as well. Hetero relationships are certainly different than same-sex relationships, but that doesn't mean same-sex couples ought to take a back seat. And the reason that cultures have limited marriages to male-female in the past is that heterosexuals vastly outnumber gays, lesbians, and bisexuals. That doesn't justify discrimination; especially given all that we have learned about the scientific and genetic drivers behind one's sexual orientation.

  • tolonaro

    re: “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.”

    There is good reason to believe that humans have pheromones as well as all other animals. To argue otherwise is to believe that humans are not animals! (At least one humna pheromone has been identified – I believe involving trusting the other). From the analogy with animals, sexual reproduction must have pheromones involved. The anecdotal evidence would suggest that “falling in love” has a strong pheromone component; the proverbs about the value of “propinquity” in love in another.

    Child rearing shows other evidences of pheromone exchange between parents and children (survival chances implies that physical parents do better than non-physical parents.).

    The point is that there is evidence that male-female relationships are different from male-male or female-female. (Band of brothers – there is such a thing as male bonding – pheromones but clearly not shared by or with females). Thus there is a physical basis for recognizing that a male-female relationship has a special dimension.

    Incidentally, the fact that all societies throughout history recognize that marriage is different from homosexual relationships is another argument for recognizing that marriage is different. Cultures recognize reality, even when they can't explain it.

    OK, this doesn't deny that homosexuals have feelings or that they feel compelled by those feelings. It just says that they are not the same as those driving heterosexuals into marriage. Well, there are non-phenomenal reasons for what people do, including marriage. the argument is just that there is a physical reason behind limiting marriage to male-female.

  • Pejman_Yousefzadeh

    There is far more to the issue than pheromones; genetics are at play as well. Hetero relationships are certainly different than same-sex relationships, but that doesn't mean same-sex couples ought to take a back seat. And the reason that cultures have limited marriages to male-female in the past is that heterosexuals vastly outnumber gays, lesbians, and bisexuals. That doesn't justify discrimination; especially given all that we have learned about the scientific and genetic drivers behind one's sexual orientation.

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