Bench Memos

Sense and Nonsense on Anti-Prop 8 Ruling

Yesterday’s San Francisco Chronicle featured an excellent op-ed by law professor Nelson Lund, “Prop. 8 judge makes strange charge.”  An extended excerpt:

Until very recently, same-sex marriage was unknown in human history, and it is opposed today by many progressive leaders, like [President] Obama and [Hillary] Clinton. Can this be explained only by irrational prejudice or religious zeal? No. Only unions between men and women are capable of producing offspring, and every civilization has recognized that responsible procreation is critical to its survival. After the desire for self-preservation, sexual passion is probably the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally and only after nine months.

Without marriage, men often would be uncertain about paternity or indifferent to it. If left unchecked, many men would have 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 encourage biological parents, especially fathers, to take responsibility for their children. Because this institution responds to a phenomenon uniquely created by heterosexual intercourse, the meaning of marriage has always been inseparable from the problem it addresses.

Homosexual relationships (and lots of others as well), have nothing to do with the purpose of marriage, which is why marriage does not extend to them. Constitutional doctrine requires only one conceivable rational reason for a law, and the traditional definition of marriage easily meets that test.

Also yesterday, plaintiffs’ lawyer Ted Olson, in a long interview on “Fox News Sunday With Chris Wallace,” did little more than repeat, over and over and over, variants of the question-begging propositions that “We do not put the Bill of Rights to a vote” and that “the right to marriage is a fundamental right.”  As to just how it is that the Bill of Rights might be thought to create a right to same-sex marriage, or that the Supreme Court’s previous holdings on marriage might be thought to extend to this previously unimagined novelty, or that anyone purporting to be a conservative on matters of constitutional interpretation could take the position that Olson is taking, Olson offers little or no clue.  Evidently, his powers of persuasion haven’t been honed by arguing to a judge whose overwhelming bias was evident from the beginning. 

One line of questioning that I wish Wallace had asked Olson:  Why didn’t you speak out against Prop 8 during the 2008 campaign, when California voters were deciding how to vote on it?  Why doesn’t your failure to have done so properly invite the suspicion that your anti-Prop 8 lawsuit is driven as much by your ego and vanity as by your newly declared convictions?


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A majority of the Court knows that the 1973 decision is nonsense. It is past time for the justices to say so.