Bench Memos

The Gay Gettysburg Address

In Newsweek, Theodore Olson makes “The Conservative Case for Gay Marriage.”  The adjective is employed strictly because of the author’s history as a conservative, because there’s nothing the least bit “conservative” about the case Olson makes.  In truth, he hardly does any better than his colleague David Boies did in the Wall Street Journal last July.  Olson’s argument comes down to this:

1. The history of America is the progress of ever-increasing equality.  Gays are next.  Marriage is what they want to be equal.  Therefore we should give it to them.  Why, even Lincoln would say so–or so goes Olson’s reading of the Gettysburg Address, of all things.  Spot the conservatism here?  Me neither.

2.  Olson hasn’t heard a decent argument yet for “denying” same-sex couples the “fundamental right” to marry–not “tradition,” not “procreation,” not “harm” to the actual institution of marriage.  He should get out more.  The arguments have appeared in plenty of places, including NRO.

3.  People are “born” homosexual in just the way they are born members of racial and ethnic groups, or are born left-handed.  This is deeply controversial, not at all established by “science” as Olson and Boies claim–and perfectly irrelevant to the constitutional case now percolating.  For even if all that Olson asserts is true, it would not follow that the institution of marriage should be torn down and remade in a new image.

4.  The cleverest gambit in Olson’s article is the repeated insinuation that the defenders of marriage are the ones who have to prove something.  It is an old story how liberal activists have trashed the presumption of constitutionality.  But I never thought a man who claimed to be a conservative would be inviting judges to revolutionize our constitutional law on the thinnest of sentimental appeals, while centuries of moral and legal civilization are required to prove something to a progressive in a black robe.

I have little doubt that there are plenty of federal judges ready to leap on the invitation.  Olson’s article is evidence that they will not even be offered any recognizable legal arguments.  But then, in the Kennedy School (of Justice Anthony, that is), the legal reasoning is always in short supply, and somehow never missed at all.