This morning, the New York Times published a “strange new respect” profile about Ted Olson’s involvement in the effort to gain a court order redefining marriage nationally. I found curious the assertion that a judicial redefinition of marriage is consistent with “conservative legal causes.” This novel understanding of the term “conservative” seems to hearken back to the paper’s description, some decades ago, of certain members of the Soviet Politburo as “conservatives.” If “conservative” describes a particularly assiduous devotion to an ideology, perhaps it fits these instances, but I think the usage is a little too liberal (for want of a better term).
As one of the attorneys interviewed for the story gently suggested: “He’s taking a more assertive view of how one should interpret the Constitution than you would normally expect Ted to take.” To argue, as the federal challenge to California’s Proposition 8 does, that the U.S. Constitution requires the government to redefine a social institution that predates that Constitution (and, indeed, the state) is not particularly conservative. Olson’s assertion that the specific precedents raised in the article, Romer v. Evans and Lawrence v. Texas, support the expansive constitutional interpretation urged by the lawsuit relies on highly dubious legal theories. Additionally, the already demonstrated consequences of redefining marriage for religious liberty and limited government (see, for example, the ongoing lawsuit by the New Jersey attorney general’s office against a Methodist camp association for declining to allow its property to be used for a civil union ceremony) and for children (such as the implicit endorsement of the idea that mothers and fathers are fungible) can hardly be called conservative. None of this is to suggest that the attorneys pursuing the case are not acting in good faith, but it is safe to say that same-sex marriage is not a “conservative legal cause.”
– William C. Duncan is director of the Marriage Law Foundation.