Posted on 12-01-2010
Filed Under (Current Affairs) by Rashtrakut

Did not get around to this article by George Bush’s Solicitor General Ted Olson yesterday.  See link.  Olson stunned many conservatives last year by agreeing to appear in federal court to argue that California’s Proposition 8 which overturned California’s judicially declared constitutional right should be held unconstitutional.

On a personal note my views on the subject have evolved from the camp of legalize but don’t call it marriage to supporting full legalization.  The primary motive for my shift is that “civil unions” and other non-marriage alternatives may not carry the same protections in some states or across state lines plus a realization that my original position had very little logical support.  Like Olson, I simply do not buy that legalizing gay marriage and encouraging couples to enter into a committed relationship will somehow weaken heterosexual marriage.  No fault divorce and a 50% divorce rate would seem to be the greater threats to the institution of marriage.

Sexual orientation is not a protected category under the 14th amendment and as such does not get special protections.  So long as these bans serve a rational purpose (a lower standard of review than strict scrutiny applied to the protected categories) they are constitutional.  If you subscribe to Scalia’s “Original Meanings” school of interpretation to the constitution (for which I personally do not find much justification in history) then the historical understanding of marriage as a heterosexual institution will win the day. The question is whether on a constitutional basis, the legalization of homosexuality, allowing homosexuals to adopt and create family units and the odd result in California where as Olson notes 18,000 homosexual couples are legally married but cannot remarry will be sufficient to win the day.

As a matter of political strategy, I am not sure this is the wisest course to pursue.  I understand why gay couples feel that they cannot wait any longer, but a court decision that abruptly terminates the political debate (particularly when the side for legalizing gay marriage has lost every public referendum held on the subject) will create resentment and backlash.  It will also add to the populist outrage against “unaccountable” courts that the conservative right has been feeding off since Brown vs. Board of Education and even more so after Roe vs. Wade.

On an institutional level it does have the feel of judicial legislation in the face of public opinion which can be a dangerous road for courts to follow.  As a practical matter, time is on the side of those favoring legalization.  Much of the opposition to the idea comes, not surprisingly, from older Americans.  Also, as the few states that have legalized gay marriage via the legislatures show that legalization is not the harbinger of Armageddon public opposition to the idea will diminish.  But then, it is easy for me to counsel patience on a subject that does not impact me directly.

As this battle winds on, the next step in the war about marriage is beginning.  If the courts can legalize homosexuality, the arguments for criminalizing polygamy which is recognized by many world religions (not to mention was practiced by many of the prophets and kings of the Old Testament and was rationalized by Martin Luther for political reasons in the case of Philip I the Magnanimous, Landgrave of Hesse) is even weaker.  As Jonathan Turley noted in this article a few years ago, the rationale and the language used by the Supreme Court in its 1878 decision supporting the ban would not hold water today.  A new front in the culture wars is about to begin.

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