In Newsweek, Ted Olson Is Wrong on Gay Marriage

January 11th, 2010 10:46 PM

Former Solictor General Ted Olson's Newsweek essay, "A Conservative Case for Gay Marriage," is embarrassing for conservatives -- that is, embarrassing that we had a Solicitor General so willing to publicly use straw-man arguments.

Of course, as it has ever been, when an individual conservative of moderate fame wants some nice press in the mainstream media, he offers up a 'man bites dog' story, to wit, "Neanderthal Conservative Sees the Light [Insert Topic Here]."

Which is not to say a desire for fame is Olson's motivation, particularly; his essay is ardent enough to signal his logic has been overwhelmed and thus it is likely he is sincere, but how many of us, pushed out on a limb of illogic after letting our emotions rule, are rewarded with an essay in Newsweek?

(I daresay even a fashionable liberal, penning "A Liberal Case Against Gay Marriage," couldn't get one.)

Olson lists the "reasons I have heard" against legalizing gay marriage.

He's not a listener.

Every adult American already has the same legal right to marry as anyone else. There are certain limitations on this right for everybody -- you can't marry a close relative, you can't marry if you are not mentally competent to enter into a contract, you can't marry if you are already married, you can't marry someone else who is already married, you can't marry someone who does not wish to marry you, you can only be married to one person at a time, and, yes, you have to marry a person of the opposite sex. The core point here, and the relevant one for any discussion of the applicability of the Equal Protection Clause, is: these rules apply to everyone equally.

Don't like the rules? Fine, don't get married. There is also a legal right to refrain from marriage if it is not your cup of tea.

If Ted Olson wants to change the laws regarding marriage, and lobby forthwith for same, that, too, is his legal right, as it is everyone's. But his view that defining marriage under law for everyone equally as the union of one man and one woman is unconstitutional is simply wrong, and if his view prevails -- this is a certainty -- it won't be long before we have a lawsuit by people who say they can't be happy unless they have more than one spouse at a time. The public will laugh at first, but these individuals will organize, hire lobbyists, obtain a headquarters, and spend 20 years saying they've felt this way as long as they can remember. Then the next generation Ted Olson will be trotted out with "A Conservative Case for Polygamy" (though no doubt a new and highly-marketable name will first be made de rigueur). Tomorrow's Ted will argue that the Equal Protection Clause applies and that the Constitutional case is closely analogous to the one against slavery. He'll toss out religious arguments as unworthy of examination, and fret that the real basis of opposition to polygamy is that people feel threatened. (Subtext: Opponents are "polygaphobic"; that is, they have a mental illness.)

And if that Ted's view prevails, the institution of marriage, already under threat by all-too-many people who don't take it seriously, will for practical purposes, in the United States of America, be no more.

(Cross-posted on the National Center for Public Policy Research blog)