The Case For Equality

A good friend of mine tipped me off to this Newsweek article where the lawyer pleading the case to overturn California's Prop 8, former Bush v. Gore point man Ted Olson, lays out a compelling and powerful case for gay marriage from a conservative point of view.

The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

It is true that marriage in this nation traditionally has been regarded as a relationship exclusively between a man and a woman, and many of our nation's multiple religions define marriage in precisely those terms. But while the Supreme Court has always previously considered marriage in that context, the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals.


Marriage is a civil bond in this country as well as, in some (but hardly all) cases, a religious sacrament. It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state's support and benefits. The California Supreme Court described marriage as a "union unreservedly approved and favored by the community." Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.

What, then, are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.

The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite "tradition" as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate.

The entire article is worthy reading, but Olson's basic principle, that equal justice under the law is an American ideal and not a conservative, liberal, Democratic or Republican ideal is both correct and compelling.

When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.

Well said, even if you are the jerk that helped put Bush in the White House in 2000.