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Right and Left Pepper Olson on Prop 8



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On Tuesday, perhaps for the first time in the litigation surrounding California’s Proposition 8, attorney Ted Olson (the advocate for redefining marriage) faced some tough questions, from both conservatives and liberals on the Supreme Court.

At one point, Justice Anthony M. Kennedy noted that same-sex marriage was a very new experiment — barely a decade old — and questioned whether the justices are well-suited to judge the results of that experiment against an institution with thousands of years of history. 

As researchers at the Heritage Foundation have noted, the social-science evidence is clear that the best environment for children is a married biological mother and father. We have much more to learn about the effects of changing family forms on children, so, as Justice Kennedy remarked, those who wish to overturn the California law are really asking the Court to go into “uncharted waters.” 

Trying to push back on this idea, Olson suggested that Loving v. Virginia, the case in which the Supreme Court struck down Virginia’s law against interracial marriage, also entered unknown territory when it was decided in the 1960s. Kennedy quickly dismissed that argument, noting that interracial marriage was hundreds of years old in common-law countries. 

Justice Sonia Sotomayor seemed to be channeling some of Ryan T. Anderson’s research from Heritage when she asked what state restrictions ever could exist if marriage is a fundamental right: incest, age, or number of people? Olson didn’t give a limiting principle and instead leaned on previous cases.

Conservatives also peppered Olson with questions. Justice Antonin Scalia, agreeing with Olson’s premise that it is the justices’ job to say what the law is, asked: “When did it become unconstitutional to define marriage as between a man and woman? Was it 1791, 1868, or some other date?”

Olson tried to turn the question around and asked when interracial marriages became unconstitutional, but Justice Scalia answered, “Easy . . . at the time that the equal-protection clause was adopted.” 

Lacking an adequate answer, Olson then dragged out the Left’s “living Constitution” argument: “It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control and that . . . There’s no specific date in time. This is an evolutionary cycle.” The Constitution, according to Olson, is evolving based on culture

Another major theme of the morning’s oral argument was whether the people or the courts should decide the definition of marriage. As John Eastman argues in a Heritage Legal Memorandum, the risks of taking the decision away from the people are too great and suggest that the Court should not enshrine in the Constitution a right to same-sex marriage. 

Of course, the pro–Prop 8 advocates also got some tough questions, too, so no outcome is clear.

But most important, this debate has been robust in the public square — as the events outside the Court today demonstrated — and should be allowed to continue. When citizens hear both sides, by and large they support marriage between a man and a woman. (And Republicans might want to take notice: Marriage fared better than their presidential ticket last November in the four states where it was on the ballot.)

Regardless, the decision should be made by the people and their representatives, not usurped by the courts. That would only damage the Supreme Court’s reputation and launch another culture war by precluding political debate, in much the same way Roe v. Wade did 40 years ago. 

— Derrick Morgan is vice president for domestic and economic policy at The Heritage Foundation.



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