On Wednesday afternoon U.S. District Chief Judge Vaughn Walker 
An Argument from the Right for Same-Sex Marriage
Source: (http://republicansunited.us)
By Chris Ladd
A trial has recently concluded in a California Federal Court over the issue of same sex marriage. The plaintiffs in Perry v. Schwarzenegger seek to overturn California’s gay marriage ban (Prop. 8th) Amendment to the U.S. Constitution. The case is unique on many counts including the fact that the Judge conducted a full courtroom trial rather than a bare exchange of paper arguments. It is also unique in that the plaintiffs are represented by a well-known conservative attorney who has used the case to shape a fascinating conservative argument for same sex marriage.
Ted Olson is a conservative’s conservative. He was counsel to George W. Bush in Bush v. Gore and served as Bush’s Solicitor General. He defended Reagan in the Iran Contra scandal and assisted in the Paula Jones case against Bill Clinton. He is a founding member of the Federalist Society and a longtime critic of judicial activism. And he believes he has constructed a conservative case for gay marriage that can prevail before the current Supreme Court.
No, he’s not crazy.
It’s not easy to summarize such a sophisticated position, but Olson’s argument goes something like this. Like it or not, government has always defined marriage. American Slaves, for example were forbidden full rights of marriage in order to limit their power and legitimacy. Homosexuality is “highly resistant to choice,” meaning that homosexuality is an identity, rather than a lifestyle. We have made marriage a bedrock of our culture. The government favors, facilitates, and even subsidizes marriage because we value its many benefits both to individuals and to society. So, locking a certain set of people out of marriage purely out of an unreasonable bias against them puts them at a distinct disadvantage against everyone else.
If those assumptions are proven, then the state must demonstrate a compelling interest at stake in order to retain the law. The defense in this case is at some disadvantage on this point. In a controversial decision, the State of California declined to defend Proposition 8. The court allowed attorneys from the interest groups that helped sponsor Prop 8 (it was a referendum) to step in to defend the measure, but they are badly outmatched. Their response has not been strong.
The defense attorneys are recruited from the fundamentalist movement. They do not perhaps represent the ideological core of conservatism. Their arguments in the case have ranged from weak to offensive. They have claimed that:
- Gays should not be able to marry because marriage is all about procreation. Olson’s response, why do we let elderly people and death row inmates marry?
- Same sex marriage will destroy straight marriage. The defense hasn’t been able outline the precise physics of this threat.
- Gays are the real political power in this country, not some oppressed minority. Wow, really? Are they talking about Larry Craig?
I find Olson’s case very compelling and both the tone and content of the defense has been abhorrent. But to enshrine same sex marriage as a right protected in the U.S. Constitution is still a tough sell for me. I’m uncomfortable with some of the company I find myself sharing in this opinion, but in my next piece I’ll explain where I’m coming from.
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