High-profile litigators Ted Olson (a Republican) and David Boies (a Democrat) famously squared off against each other in Bush v. Gore. They have now joined forces in a federal lawsuit challenging California’s definition of marriage as a union of a man and a woman — a definition California voters added to their constitution after an activist state court struck down the statutory definition. Mr. Olson’s part in this odd-couple alliance is especially striking because he held senior positions in both the Reagan and George W. Bush administrations, and because he is a longtime leader in the conservative Federalist Society, a group dedicated to the proposition that it is the province and duty of the judiciary to say what the law is, not what judges think it should be.
Judging from the players, it may look as though we now have a consensus among liberals and conservatives that the federal Constitution includes a right to same-sex marriage, to which only bigots and religious zealots could object. But nothing could be farther from the truth: The position these lawyers are advocating has no support in Supreme Court case law, let alone in the Constitution. Their arguments (in papers filed in court and in a recent op-ed signed by Mr. Boies in the Wall Street Journal) consist entirely of out-of-context snippets from Supreme Court opinions, nasty attacks on millions of American citizens, and astonishing assertions that an institution central to virtually every civilization in the history of the human race is patently irrational.
Boies and Olson appeal to the Fourteenth Amendment’s Equal Protection and Due Process Clauses. First, they claim that the Supreme Court has recognized a fundamental right “to marry the person you love,” relying especially on Loving v. Virginia, which held that bans on interracial marriage violated the Equal Protection Clause. Second, they point to Romer v. Evans, which used the Equal Protection Clause to invalidate a provision of the Colorado constitution that the Court interpreted as prohibiting all government actions designed to protect homosexuals. Third, they cite Lawrence v. Texas, which invalidated anti-sodomy statutes under the Due Process Clause.
None of these cases remotely suggests a right to same-sex marriage. All of the cases referring to a fundamental right to marriage involved traditional marriages between men and women, and did not so much as suggest that people have a right to marry “the person you love” regardless of whether the other person is a minor, or is already married to someone else, or is a close relative, or is a person of the same sex. The Boies/Olson invocation of the Loving case is both misplaced and peculiarly offensive. In that case, the Court recognized that anti-miscegenation laws had no other purpose than the maintenance of white supremacy. Analogizing the traditional definition of marriage to these Jim Crow devices demeans both the civil-rights movement and the countless millions of people who accept the traditional definition of marriage.
Reliance on Romer and Lawrence is equally preposterous. The Romer opinion emphasized the unique and unprecedented nature of Colorado’s sweeping denial of legal protection to a narrowly defined class of persons, which had no resemblance at all to California’s marriage laws. Lawrence stressed that its invalidation of anti-sodomy laws was based on the severe deprivation of personal liberty they imposed. The traditional definition of marriage does not interfere with anyone’s personal liberty, and it certainly does not exclude homosexuals from the protection of the laws. It is particularly strange that these decisions are being invoked in an attack on the laws of California, which has a domestic-partnership statute that provides same-sex couples with the same substantive rights and privileges available to married couples.
As if this weren’t enough, in 1971 the Supreme Court dismissed as meritless a constitutional challenge exactly like the Boies/Olson challenge, and the 2003 Lawrence opinion specifically said that it was not implying a right to same-sex marriage. Perhaps recognizing that they really don’t have any support in Supreme Court case law, Boies and Olson argue that the traditional definition of marriage is so utterly irrational, so bereft of any legitimate purpose, that it can be explained only as something “born of animosity” against a politically unpopular group.
If Boies and Olson really believe what they say, they have also condemned President Obama. He supports domestic-partnership laws like California’s but opposes same-sex marriage. They have classified the president as an anti-gay bigot and also smeared a long list of prominent public figures ranging from Joe Biden and Hillary Clinton to Sandra Day O’Connor. One would like to be there when these indictments are delivered face to face.
The notion that the fundamental features of an institution adopted by virtually every civilized society are based on nothing but moral opprobrium toward homosexuals is so weird that one wonders why serious people should even have to discuss it. Apparently, however, we’ve come a long way since the Supreme Court summarily dismissed such a claim in 1971. But here we are, so let’s point out the obvious.
Only unions between men and women are capable of producing offspring, and every civilization has recognized that procreation is critical to its survival. The institution of marriage has been established in virtually every known human society, including our own, and officially recognized marriages have always been exclusively between men and women. This is not an accident or the result of some unreasoned prejudice. After the desire for self-preservation, sexual passion is perhaps the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally, and it does so only after a nine-month lapse. The result can be uncertainty about paternity or indifference to it by the father. If left unchecked, this would give many men little incentive to invest in the rearing of their offspring, and the ensuing irresponsibility would have made the development of civilization impossible.
The fundamental purpose of marriage is to enable, encourage, and require biological parents, especially fathers, to take responsibility for their children. Because this institution is a response to a phenomenon uniquely created by heterosexual intercourse, the very meaning and definition of marriage has always been inseparable from the problem it is meant to address.
It is true, of course, that different cultures have established different rules to govern marriage. Most conspicuously, perhaps, some have permitted polygamy and others have not. Various other features have changed over time, such as the respective rights and responsibilities given to husbands and wives, and the ease or difficulty of obtaining a divorce. Different cultures have also adopted a variety of formal and informal rules outside of marriage to cope with the effects of the powerful human sexual urge. Some, for example, have sought to discourage homosexual relationships, while others have tolerated them. Some have made great efforts to discourage extramarital relationships, while others have been more permissive.
Amid all this variety, however, marriage itself has always been understood as the recognized union of a man and a woman because these are the only sexual unions that serve the fundamental purpose of creating offspring and fixing the responsibility of biological fathers to care for their children. Homosexual relationships, and lots of other relationships as well, have nothing to do with the purpose of marriage, which is why marriage does not extend to them.
Some visionary people today believe that marriage as traditionally understood has become obsolete because of technological advances in birth control and artificial reproduction, or because of changing social mores. This is the underlying and unspoken premise of the Boies/Olson position, which would redefine marriage and replace it with a new institution having a different purpose. As everyone knows, some states and some foreign countries have begun to experiment with such a redefinition of marriage. Perhaps this will all work out wonderfully, and the 44 states that have so far been more cautious will eventually catch up. But some experiments fail, and one of the advantages of democracy is that it allows failed experiments to be abandoned. If Boies and Olson persuade the Supreme Court to constitutionalize same-sex marriage, however, that will be that. We will all have to live with the consequences, whether good or bad.
In 1997, the Court heard a somewhat similar case, touching on the question of assisted suicide, that involved equal-protection and due-process challenges to a well-established law. Then, as now, the traditional law was said to be out of step with up-to-date notions of rationality and freedom. The Supreme Court rejected this claim, saying: “Americans are engaged in an earnest and profound debate about the morality, legality, and, practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.” This is the precedent that governs the case brought by Boies and Olson. Tellingly, they ignore it.
–Nelson Lund is a professor at George Mason University School of Law. He is assisting in the representation of Proposition 8 Official Proponents in Perry v. Schwarzenegger.