The Conservative Case for Gay Marriage

Why same-sex marriage is an American value.


By Theodore B. Olson | NEWSWEEK
Published Jan 9, 2010 From the magazine issue dated Jan 18, 2010
ARTICLE SOURCE: NEWSWEEK.com

Together with my good friend and occasional courtroom adversary David Boies, I am attempting to persuade a federal court to invalidate California's Proposition 8—the voter-approved measure that overturned California's constitutional right to marry a person of the same sex.

My involvement in this case has generated a certain degree of consternation among conservatives. How could a politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations, challenge the "traditional" definition of marriage and press for an "activist" interpretation of the Constitution to create another "new" constitutional right?
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My answer to this seeming conundrum rests on a lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, and on my rejection of what I see as superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights
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Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation's commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.
This bedrock American principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike. The dream that became America began with the revolutionary concept expressed in the Declaration of Independence in words that are among the most noble and elegant ever written: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Sadly, our nation has taken a long time to live up to the promise of equality. In 1857, the Supreme Court held that an African-American could not be a citizen. During the ensuing Civil War, Abraham Lincoln eloquently reminded the nation of its found-ing principle: "our fathers brought forth on this continent, a new nation, conceived in liberty and dedicated to the proposition that all men are created equal."

At the end of the Civil War, to make the elusive promise of equality a reality, the 14th Amendment to the Constitution added the command that "no State É shall deprive any person of life, liberty or property, without due process of law; nor deny to any person É the equal protection of the laws."

Subsequent laws and court decisions have made clear that equality under the law extends to persons of all races, religions, and places of origin. What better way to make this national aspiration complete than to apply the same protection to men and women who differ from others only on the basis of their sexual orientation? I cannot think of a single reason—and have not heard one since I undertook this venture—for continued discrimination against decent, hardworking members of our society on that basis.
Various federal and state laws have accorded certain rights and privileges to gay and lesbian couples, but these protections vary dramatically at the state level, and nearly universally deny true equality to gays and lesbians who wish to marry. The very idea of marriage is basic to recognition as equals in our society; any status short of that is inferior, unjust, and unconstitutional.

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.



WAIT! WAIT! -- There is much more. To read all the wonderful rest of Olson's treatise, CLICK HERE (Newsweek)

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