The Case for Marriage, Gay and Straight

Reprinted by kind permission of JendiReiter.com:


Ted Olson Makes the Conservative Case for Gay Marriage


Prominent trial lawyers David Boies and Theodore Olson are arguing the unconstitutionality of Proposition 8 in California federal court this week, in the case of Perry v. Schwarzenegger. Day-by-day trial coverage is available on the Firedoglake blog and the Courage Campaign website. Meanwhile, Newsweek recently interviewed both the liberal Boies and the conservative Olson to explain why their support for gays’ civil rights transcends left-right politics. Olson’s comments represent the best of that libertarian tradition that has sadly been drowned out by theocratic social conservatives during the past decade of GOP ascendancy. An excerpt:


…The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life’s joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution’s protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

It is true that marriage in this nation traditionally has been regarded as a relationship exclusively between a man and a woman, and many of our nation’s multiple religions define marriage in precisely those terms. But while the Supreme Court has always previously considered marriage in that context, the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals.

Marriage is a civil bond in this country as well as, in some (but hardly all) cases, a religious sacrament. It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state’s support and benefits. The California Supreme Court described marriage as a “union unreservedly approved and favored by the community.” Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.

What, then, are the justifications for California’s decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.

The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors’ prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite “tradition” as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate.

The second argument I often hear is that traditional marriage furthers the state’s interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?

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.

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.

The simple fact is that there is no good reason why we should deny marriage to same-sex partners. On the other hand, there are many reasons why we should formally recognize these relationships and embrace the rights of gays and lesbians to marry and become full and equal members of our society.

No matter what you think of homosexuality, it is a fact that gays and lesbians are members of our families, clubs, and workplaces. They are our doctors, our teachers, our soldiers (whether we admit it or not), and our friends. They yearn for acceptance, stable relationships, and success in their lives, just like the rest of us.

Conservatives and liberals alike need to come together on principles that surely unite us. Certainly, we can agree on the value of strong families, lasting domestic relationships, and communities populated by persons with recognized and sanctioned bonds to one another. Confining some of our neighbors and friends who share these same values to an outlaw or second-class status undermines their sense of belonging and weakens their ties with the rest of us and what should be our common aspirations. Even those whose religious convictions preclude endorsement of what they may perceive as an unacceptable “lifestyle” should recognize that disapproval should not warrant stigmatization and unequal treatment.

When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.

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 e
ducation—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….

I can almost forgive the guy for helping George W. Bush get elected…

Read more of Newsweek’s trial coverage here. Offering another good sign that the Right is splintering on this issue, Cindy and Meghan McCain, the wife and daughter of 2008 Republican presidential candidate Sen. John McCain (R, Ariz.), posed for promotional photos for the NO H8 website–despite the fact that the senator himself opposes gay marriage. Score one for feminism.


See also:

MSNBC’s Keith Olbermann Speaks Out Against Prop 8
You want to sanctify marriage? You want to honor your God and the universal love you believe he represents? Then Spread happiness–this tiny, symbolic, semantical grain of happiness–share it with all those who seek it.

Press Release: “NoPornNorthampton Offers 500,000+ Words of Innovative Porn-Fighting Power” (11/25/07)
NoPornNorthampton does not support increased government censorship of media. It promotes the concept of “green sexuality”. This sustainable sexuality is characterized by durable, mutually respectful relationships that enhance the lives of the lovers and the wider world. Green sexuality is a union between two equals, embracing both heterosexual and homosexual bonds but excluding polygamy, adult-child sexual relations and bestiality.

Steve and Cokie Roberts Report on Marriage: A Good Idea that Refuses to Die

Wall Street Journal: “What’s at the Heart of Happiness?”
“Marriage provides two sources of happiness,” says Andrew Oswald, an economics professor at England’s Warwick University. “One is sex and the other is friendship. Marriage has one of the largest impacts on human well-being…”

Marriage is Undersold in America

A Response to “marriage is an outdated practice”

The Impact of Internet Pornography on Marriage and the Family: A Review of the Research
…according to data from the General Social Survey in 2000 (N = 531), people who report being happily married are 61 percent less likely to report using Internet pornography compared to those who also used the Internet and who had completed the General Social Survey in 2000…

…the following observations were made by [the 350 attendees of the November 2002 meeting of the American Academy of Matrimonial Lawyers] polled with regard to why the Internet had played a role in divorces that year…56 percent of the divorce cases involved one party having an obsessive interest in pornographic websites…

Whitty (2003) also found that both men and women perceive online sexual activity as an act of betrayal that is as authentic and real as offline acts and that Internet pornography use correlated significantly with emotional infidelity (N = 1,117; 468 males and 649 females)…

A New Category Debuts: Love and Beauty
Our new category, Love and Beauty, will show how sex, love, relationships and people can be so much more than the narrow, blinkered version that porn offers. Watching porn instead of seeking a loving relationship with a real person is like being given a gorgeous race car that can go 200 miles per hour, only to drive it backwards down the highway at a crawl and scrape it against railings and bridge abutments.