In the cover story of the most recent issue of Newsweek, Ted Olson, who along with David Boies is litigating a potentially landmark challenge to the constitutionality of California's Proposition 8, makes what he describes as "The Conservative Case for Gay Marriage." Olson makes an eloquent and compelling case against the constitutionality of state prohibitions of same-sex marriage.
Olson notes that his involvement in the litigation "has generated a certain degree of consternation among conservatives." He finds this puzzling. Indeed, he insists that the conservative opposition to same-sex marriage "does not make sense, because same-sex unions promote the values conservatives prize." Indeed, given their most fundamental values, he explains, conservatives should "celebrate" the desire of two individuals to form "a union based on shared aspirations." Moreover, legalizing same-sex marriage would further "basic American principles" and "represent the culmination of our nation's commitment to equal rights." Our historic dedication to the "principle of equality," he asserts, is central not only to Democrats and liberals, but also to Republicans and conservatives.
Olson is a brilliant lawyer. He offers a logically unimpeachable case for his position. But what he makes is the liberal case for gay marriage, or perhaps (as he suggests) the American case for gay marriage, but not -- unfortunately -- the conservative case for gay marriage. The plain and simple fact is that conservatives do not believe in what Olson identifies as our "bedrock" American values. And therein lies his problem.
To begin with, it's important to note the sharpness of the divide between conservatives and liberals on this issue. According to recent polls, only 14% of conservatives support same-sex marriage, compared to 72% of liberals. Why is this so? Basically, liberals already understand and accept the three central points of Olson's argument: (1) equality is a fundamental constitutional right; (2) a person's sexual orientation is determined at birth, and it is especially unfair to treat people unequally because of factors over which they have no control; (3) there is no good reason to deny gays and lesbians the right to marry, and religion, in particular, is not a constitutionally legitimate basis for treating people unequally. Liberals generally embrace each of these points, but conservatives do not.
(1) Almost all people say they believe in equality, but the real truth is that throughout American history it has traditionally been liberals rather than conservatives who have fought for equal rights for African-Americans, women, religious minorities, and political dissenters. In most of these battles, conservatives either sat on the sidelines or actively defended the status quo.
(2) Like Olson, almost 60% of liberals believe that sexual orientation is determined at birth, but only 21% of conservatives accept this. Most conservatives apparently cling to the discredited belief that sexual orientation is merely a choice of "lifestyle."
(3) Although Olson effectively demonstrates that there is no reasonable justification for prohibiting same-sex marriage, only 14% of conservatives agree. What's going on here? The answer, as Olson intimates, is religion. Almost one-half of all conservatives believe that the Bible rather than the will of the People should determine public policy in the United States. Those who attend church services weekly supported Proposition 8 by a vote of 84% to 16%, whereas those who do not attend church regularly opposed Proposition 8 by a vote of 83% to 17%. Olson rejects "religious teachings that denounce homosexuality as morally wrong" and believes that the Constitution "prohibits us from forcing our religious beliefs on others." But most conservatives don't agree with him.
Olson's problem, then, is that although he has made out a powerful and persuasive case for holding laws banning same-sex marriage unconstitutional, he has not made "The Conservative Case for Gay Marriage." It's time Ted Olson sucked it up and recognized that, at least on this issue, he is a liberal. And he's right to be one.