Chris0nllyn
Well-Known Member
Theodore Olson has entered the fray over Virginia’s ban on gay marriage. Olson, a powerhouse Republican lawyer who helped keep Al Gore out of the White House, is joining forces with the ACLU (which is challenging the ban in a separate suit) and what those on the right like to call the “homosexual lobby.” This adds a big wrinkle to the standard left/right narrative, and raises a question: Is there a conservative case for gay marriage?
There certainly is a liberal one: Diversity is great, which means gay people are great – so if they want to marry, that’s great too! Besides, you’re not supposed to discriminate against anybody. (Except conservative Christians, because they’re so judgmental and icky.)
There is also a libertarian argument for gay marriage, which is equally straightforward: Short of actually shooting somebody in the face, individuals should be able to do pretty much whatever they want (except criticize the novels of Ayn Rand, no matter how hilariously bad her prose). If that means two burly lumberjacks get to pick out china patterns together – hey, go for it.
Most everyone also knows the conservative argument against gay marriage: God made Adam and Eve, not Adam and Steve. Plus, look at these pictures from the San Francisco gay-pride parade we found on the Internet. Dude, are you seriously gonna stand up for those freaks?
Olson has. With Democratic lawyer David Boies, he successfully challenged California’s ban on gay marriage. In 2010, Olson penned a piece for Newsweek explaining his version of “The Conservative Case for Gay Marriage.” He pointed out that “same-sex unions promote the values conservatives prize” – such as commitment, stable families, and “thinking beyond one’s own needs.” Moreover, gay marriage follows from the “bedrock American principle of equality.” If you believe in the values of the Declaration and the Constitution, then you believe in equal rights, and “marriage is one of the most fundamental rights that we have as Americans.”
Those are good reasons. But they are not the only reasons conservatives might accept gay marriage. Here are five more.
(1) Gay marriage is good for “the institution of marriage.”
(2) Gay marriage fosters virtue.
(3) Gay marriage benefits children.
(5) Banning gay marriage encourages big-government thinking.
First question: Show me where the Constitution says that is any part of government’s job. Go ahead, I’ll wait.
Can’t find it, can you? Even if someone could, the means chosen – banning gay marriage – is connected to those goals only by logic so thin and weak it cannot stand up. Letting gay people marry does not discourage straight people from getting married, and it certainly does not discourage them from procreating. (What spouse has ever said, “Gee, honey, I’d love too, but not tonight – seeing Kevin and Don’s engagement announcement kind of spoiled the mood”?) Gay marriage simply has nothing to do with either of those issues.
By pretending it does, conservatives adopt precisely the sort of big-government thinking they otherwise abhor. If government is supposed to encourage procreation, then the law should be narrowly tailored to achieve that goal. (For instance, straight couples seeking to marry should have to take fertility tests.) By suggesting government can exclude gays from marriage in order to encourage procreation, even though the two issues have no relation to each other, conservatives encourage government to claim it can do anything at all so long as it has what James Madison called a “colorable pretext” for its actions. That’s exactly the kind of thinking that led to Kelo, the Supreme Court decision allowing local governments to confiscate private property if they think they might one day find a better use for it.
Finally, conservative say the traditional straight family is – well, traditional. But as another court has noted, this does not explain the reason for discriminating against gays, it merely repeats it.
Repeating a conclusion doesn’t prove it. And besides: “Upholding tradition” doesn’t appear anywhere in the Constitution, either.
A Conservative Case for Gay Marriage - Reason.com