The Conservative Case for Gay Marriage

Ted Olson, who has worked in a number of Republican administrations and stood before the Supreme Court articulating and defending conservative interpretations of the law, makes the case for gay marriage.  I'm sure Steve Davis who has consistently held radical views on homosexuality--saying that homosexual couples aren't families--will disagree with Olson.

 

The Conservative Case for Gay Marriage

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.

Reactions to our lawsuit have reinforced for me these essential truths. I have certainly heard anger, resentment, and hostility, and words like "betrayal" and other pointedly graphic criticism. But mostly I have been overwhelmed by expressions of gratitude and good will from persons in all walks of life, including, I might add, from many conservatives and libertarians whose names might surprise. I have been particularly moved by many personal renditions of how lonely and personally destructive it is to be treated as an outcast and how meaningful it will be to be respected by our laws and civil institutions as an American, entitled to equality and dignity. I have no doubt that we are on the right side of this battle, the right side of the law, and the right side of history.

Some have suggested that we have brought this case too soon, and that neither the country nor the courts are "ready" to tackle this issue and remove this stigma. We disagree. We represent real clients—two wonderful couples in California who have longtime relationships. Our lesbian clients are raising four fine children who could not ask for better parents. Our clients wish to be married. They believe that they have that constitutional right. They wish to be represented in court to seek vindication of that right by mounting a challenge under the United States Constitution to the validity of Proposition 8 under the equal-protection and due-process clauses of the 14th Amendment. In fact, the California attorney general has conceded the unconstitutionality of Proposition 8, and the city of San Francisco has joined our case to defend the rights of gays and lesbians to be married. We do not tell persons who have a legitimate claim to wait until the time is "right" and the populace is "ready" to recognize their equality and equal dignity under the law.

Citizens who have been denied equality are invariably told to "wait their turn" and to "be patient." Yet veterans of past civil-rights battles found that it was the act of insisting on equal rights that ultimately sped acceptance of those rights. As to whether the courts are "ready" for this case, just a few years ago, in Romer v. Evans, the United States Supreme Court struck down a popularly adopted Colorado constitutional amendment that withdrew the rights of gays and lesbians in that state to the protection of anti-discrimination laws. And seven years ago, in Lawrence v. Texas, the Supreme Court struck down, as lacking any rational basis, Texas laws prohibiting private, intimate sexual practices between persons of the same sex, overruling a contrary decision just 20 years earlier.

These decisions have generated controversy, of course, but they are decisions of the nation's highest court on which our clients are entitled to rely. If all citizens have a constitutional right to marry, if state laws that withdraw legal protections of gays and lesbians as a class are unconstitutional, and if private, intimate sexual conduct between persons of the same sex is protected by the Constitution, there is very little left on which opponents of same-sex marriage can rely. As Justice Antonin Scalia, who dissented in the Lawrence case, pointed out, "[W]hat [remaining] justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution'?" He is right, of course. One might agree or not with these decisions, but even Justice Scalia has acknowledged that they lead in only one direction.

California's Proposition 8 is particularly vulnerable to constitutional challenge, because that state has now enacted a crazy-quilt of marriage regulation that makes no sense to anyone. California recognizes marriage between men and women, including persons on death row, child abusers, and wife beaters. At the same time, California prohibits marriage by loving, caring, stable partners of the same sex, but tries to make up for it by giving them the alternative of "domestic partnerships" with virtually all of the rights of married persons except the official, state-approved status of marriage. Finally, California recognizes 18,000 same-sex marriages that took place in the months between the state Supreme Court's ruling that upheld gay-marriage rights and the decision of California's citizens to withdraw those rights by enacting Proposition 8.

So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand.

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.

Posted via email from Jim Nichols