Ted Olson

Ted Olson is one of the lawyers arguing in federal court that same-sex marriage is a right for all consenting adults. He’s long been in the middle of conservative circles, including Reagan’s administration. He has recently written a piece of Newsweek in which he makes the conservative case for gay marriage.

This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What’s more, it is pernicious to think marriage should be limited to heterosexuals because of the state’s desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.

His final line is especially compelling. Of course, the procreation argument has long been a failure given all the people who don’t procreate, not to mention the fact that the government says nothing encouraging to the point anyway, but the comparison with China is the final nail in this long buried coffin. Give it a thought. What if, say, Montana offered tax breaks for specifically for couples with only one child? Or if Washington added a special tax for every child a couple has but the first? Would, then, a ban on marriage be acceptable? Of course not. Clearly, procreation is not the overriding factor here. It’s a lie when claimed otherwise.

Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.

It’s obvious why he couldn’t think of any. Aside from the fact that same-sex marriage doesn’t harm heterosexual marriage, this isn’t actually an argument at all. It’s pure political rhetoric. It’s useless.

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.

This, in truth, is the central argument against same-sex marriage. It isn’t always front and center per se; it’s often the other dishonest arguments that get put forth. But the reality is that the religious want to impose their beliefs on everyone without justification. That is part of the fundamental evil religion has always cultivated: We’re right and you’re wrong and we know it. We just know it.

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.

Of course, it’s unlikely Scalia will abide by his own conclusion, instead making a purely political decision, when this case makes it to the Supreme Court. But, for once, he is right. There is no longer any valid legal argument* standing in the way of equality for same-sex couples.

*Key word legal. As for valid arguments based upon reason, understanding, and rationality, they’ve never actually existed.