Ted Olson and the "Gay Marriage" Kerfuffle

Familiar blog readers know that I oppose "gay marriage" as an unwarranted Statist intervention into the social context; the legal/political context is a subset of the total context, including the community and marketplace, coexisting with preexisting traditional institutions/constructs of social norms (e.g., clothing), heterosexual marriage, family, and church. Marriage and family are not arbitrary constructs but ones which evolved over millennia, across cultures to promote societal self-preservation through procreation and stability. Of course, it is possible for two fertile people to procreate without marriage, but there's always been a social stigma attached to illegitimacy; marriage has been society's established mechanism as the foundation for procreation and the family.

Natural procreation requires heterosexual intercourse, which is a necessary but insufficient condition for pregnancy (obviously both partners must be fertile). The "gay rights" ideologues will object that we don't require fertility tests (or child quotas) for married couples, there are many examples of families raised by just one parent (e.g., a war widow) and obviously older couples can't procreate. Let's point out these are exceptions to the general nature of an evolved framework; for example, single parents can remarry; infertile couples can adopt, and in many cases, grandparents may raise their grandchildren. Of course, marriage is a concept that includes other aspects, including rivalrous claims on one's partner, and society's survival does not necessarily require each person/couple to recreate (I, for example, am the first-born of 7 siblings; I am single and don't have children, but I have 21 nephews and nieces, at least 2 from each other sibling.)

Now, as a libertarian Catholic, I have a Thomistic sense of tolerance:

The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz., that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils... (ST I-II, q. 96, a.2, ad 2)

 ...those who are in authority, rightly tolerate certain evils, lest certain goods be lost, or certain greater evils be incurred: thus Augustine says (De Ordine ii.4): "If you do away with harlots, the world will be convulsed with lust." (ST II-II, q. 10, a. 11)

 We can see an inherent case for tolerance built into the Thomistic anthropology. In contemporary liberal theory, tolerance is justified on the basis of the current diversity in society. The flip side of this diversity is individuality, which requires liberty. In order for all persons to exercise their liberty, the state must tolerate those freely chosen actions of citizens of which it disapproves. (William Galston, Liberal Purposes, (Cambridge: Cambridge University Press, 1991), p.222) We can see the beginnings of such a position in Thomas' doctrine of free will. Since God respects man's liberty, on Thomistic principles, so should the state.

Moreover, Thomas takes into account the diversity of customs in different polities. He states that "...law should be possible both according to nature, and according to the customs of the country."(Ibid., a. 2 co.) Man's nature is fallen; thus, he is not capable of total perfection and he is prone to sin. The law should not regulate for man behavior which would be possible only for angels. Furthermore, custom is deeply rooted in every culture and to fashion laws which take no account of custom will only isolate citizens and earn resentment for the law. Custom is an important unifying force in any polity, and ought to be used for benefit, not suppressed. Thomas shows a respect for the diversity of custom, and does not seem to insist that the state be a homogenous community. In fact, he places custom on a quasi- equal footing with human law: "...custom has the force of law, abolishes law, and is the interpreter of law." (ST I- II, q. 97, a. 3) He is quick to add, however, that custom (like human law) can never oppose the natural law. (Ibid., ad 1)

Now from my standpoint, regardless of my personal moral/religious objections to the gay lifestyle, I've always had a live-and-let-live attitude towards the gay community. When I lived in Houston, it didn't take long to hear it along the grapevine that Montrose had an active gay community (and the current mayor, in fact, is a lesbian); I just made a mental note to avoid the area. Within my libertarian perspective, I recognize the right of gays to freely associate and have relationships. I never supported invasions of privacy like sodomy laws. When I lived in California I supported the state constitutional proposition to recognize domestic partnerships/civil unions.

However, I did draw the line at gays' attempting, in their desperate attempt to gain social acceptance, to co-opt the heterosexual constructs of marriage and family, which I felt was a potentially destabilizing Statist intervention into the social context with possible unintended consequences. I never liked the State's intervention into family law and the  like; I prefer that family issues be worked out through, example, Church arbitration. It was bad enough within my lifetime we have seen a general breakdown of the black family in urban settings, given a welfare state that seems to reward paternal abandonment of the family unit, and a divorce-prone society where, for example, I've seen two nieces-in-law leave their husbands. To the extent the local laws support the existing social norms, I can tolerate the law. I could even accept a state like Maryland deciding a "more inclusive" stand in their mutated concept of marriage, although I did not support it. (And let me say, that winning a bare majority vote in a blatantly misleading campaign which vastly outspent the traditionalists in a heavily "progressive" state doesn't impress me much.) But when judicial tyrants arbitrarily overturn heavily supported referendums reinforcing traditional marriage, it is fundamentally unacceptable.

Before going further, let me first answer the trivial objection typically raised by the anti-traditionalists, that gender is no more a salient characteristic than incidental characteristics, like racial/ethnicity barriers established in some states; heterosexual couples from different races can have natural children. The Catholic Church never supported anti-miscegenation laws (the Church was far more concerned about interfaith marriages, and let me point out 4 of my 6 in-laws were non-Catholic when my siblings got married); in fact:

All bans on interracial marriage were lifted only after an interracial couple from Virginia, Richard and Mildred Loving, began a legal battle in 1963 for the repeal of the anti-miscegenation law which prevented them from living as a couple in their home state of Virginia. The Lovings were supported by the NAACP Legal Defense Fund, the Japanese American Citizens League and a coalition of Catholic bishops.

Let's move onto the recent debate on last Sunday's Fox News Sunday:

WALLACE: When this week began, same-sex marriage was legal in 19 states. Now, because of the Supreme Court's decision not to review the ruling of several appeals court, same-sex marriage may soon be legal in 25 states.
We want to drill down into the legal status and merits of same sex marriage with two top advocates: leading conservative Ted Olson represented the plaintiffs in the Virginia case, and is co-author of "Redeeming the Dream: The Case for Marriage Equality." Tony Perkins is president of the Family Research Council.
Gentlemen, welcome back to "Fox News Sunday." Mr. Olson, let me start with you. Why do you think the Supreme Court decided not to intervene in these cases, and can we take from that there's now a majority in the court who feels there is a constitutional right to same-sex marriage? 

TED OLSON, FORMER SOLICITOR GENERAL: [W]hat the Supreme Court was looking at on Monday when it rendered its decision not to review these pending cases is a record of something like 25 federal judges at the district court and at the appeal level which had consistently ruled that same sex marriage bans were unconstitutional.
I think the justices saw was a trend -- overwhelming trend in the same direction and felt that the federal courts were handling this issue in an appropriate and proper way, and decided not to weigh in.

 Let us point out here that Justice Kennedy's deciding vote did NOT establish a so-called constitutional right to marry. He specifically referenced the principles of federalism, the Tenth Amendment traditional rights of the states in the province of regulating morals and the institution of marriage. What was convoluted was his decision on California Proposition 8, which lawfully restored the traditional definition of marriage to the state constitution: he basically let stand a lower court reversing the proposition based on an incidential ruling of standing because California's governor and attorney general had refused to defend the proposition in federal court. This basically disenfranchised the California majority that supported the proposition. Whatever the post-Kennedy rulings were based was NOT a constitutional right for "gay marriage" which clearly Kennedy sidestepped in his decision. Many of the recently overturned state propositions/amendments were from conservative states like Utah not involving arcane issues of legal standing. The point is, when did the people of the state lose their right to define the fundamental aspects of marriage? In fact, for over 200 years of American history, traditional marriage held across all 50 states, and as I pointed out in a recent commentary (reprinted below), plural marriage was an issue in Civil War era Utah, and the federal Morrill anti-bigamy law was unanimously upheld by SCOTUS, tracing back traditional marriage to early English law. Whether or not there is a contagion of activist jurists on the "gay marriage" bandwagon, as Olson suggests, I do think SCOTUS (in particular, Justice Kennedy's sidestep of legitimate federalism issues here) was immoral in not facing the issue here, which was not the federal government restricting states' ability to redefine marriage but the states' Ten Amendment rights.

WALLACE: Mr. Perkins, let me go a little further than Ted Olson, because he has to argue before the court. If ...only four of the nine justices [are needed] to decide to review a case -- why would they make a non-ruling in this case which would allow thousands more to have same-sex marriages?

 This is an interesting question: why didn't the original 4 dissenting judges pick up? Perhaps they felt that Kennedy would come with some other narrowly-defined rationalization (like legal standing) to sustain the lower courts or perhaps they feel there are a couple of cases where the lower court will sustain a state law and the Court will take it up then.

TONY PERKINS, FAMILY RESEARCH COUNCIL: WellYou still have two circuits that have decisions coming up that look favorable toward natural marriage. But I think the effect here is what we need to look. I think the effect of this is the court did a back alley type Roe v. Wade decision by letting the lower courts do their evil bidding. And the result of that is such -- you go back to 1973 when the court imposed abortion on the nation, it was [?] to resolve the issue 41 years later.
That issue is now a political issue in every election from the president on down. This issue is not going away despite what the court may say.

 I do agree that this will be a political issue, certainly from the standpoint of judicial tyranny and judicial nominations by future Presidents. I also don't think that the social context in conservative states will be transformed into social acceptance of gays via acts of judicial tyranny. Will it be divisive in the way of Roe v. Wade? Probably not. Keep in mind only about 4% of the population is gay, and most of those relationships are not long-term; my guess is that gays would have to migrate to large metropolitan areas to find a sufficient dating base. Perhaps some couples will move to a conservative state and want to have their relationships recognized.

OLSON: Yes, I think the analogy would be to the 1967 decision of the United States Supreme Court that struck down bans on interracial marriage. We now understand and the American public believe that that was a right decision and right for America. Over 59 percent of Americans now believe that marriage equality should be the law of the land. Individuals should be allowed to get married to the person that they love.

The individuals involved in these cases have been together for decades. They now want to be a part of the community, and be part of our society by marrying and living with the people that they love.

 Olson is engaging in wishful thinking. I discussed anti-miscegenation laws above; the Catholic Church, which supported overturning said laws, will never accept "gay marriage"; interracial couples are fully consistent with the traditional definition of marriage. I particularly despise Olson for citing bad polls, only now when they seem to favor his point of view--they weren't relevant a few years back when North Carolina buried "gay marriage" at the polls. He's also misstating his case; lots of conservatives, myself included, had live-and-let-live beliefs about the gay community long before Massachusetts' jurists overthrew state marriage law. I'm not for State intervention in gay homes. That's different than letting a special-interest group impose its mutated concept of marriage on the majority of people in a state.

 WALLACE: Let me pick up on one of the central concerns that people have about all of this. In all 16 of the states that because of the Supreme Court's non-decision, may not have say legal same-sex marriage, there was a ban on those same sex marriage, either approved by the state legislature or popular referendum. Mr. Olson, you have a long record of opposing what you call or people call judicial activism. Question -- why should judges overrule the demonstrated will of the people either through referenda or through state legislature action?

Ippon!

OLSON: We have a Constitution and Bill of Rights precisely because we want protections from majority rule. When the majority in a legislature or a popular vote take away rights of individuals that are protected by the Bill of Rights, then we have an independent judiciary to rectify that situation. It's happened again and again and again throughout this country's history.

We have an independent judiciary to protect the rights of individuals like gay and lesbian citizens who only want respect, decency and equality along with the rest of us.

WRONG ANSWER! The tacit assumption is that marriage is fundamentally a legal construct. In fact, it's a preexisting social construct thousands of years old. The state referenda, etc., did not define away any existing so-called "constitutional right to marry"; it merely reinforced the existing definition of marriage in state history and reflecting the existing social construct. These state referenda, etc., did not prohibit the rights of gays to cohabitate or form whatever kind of civil union supported by their local community. Olson is disingenuously confounding the negative rights of gays to live in peace without being hassled by the State or mobs with imposing a mutated concept of marriage on the greater community.

WALLACE: Mr. Perkins, let me go back to the case where there were bans on interracial marriages. In the number of states, the Supreme Court simply ruled those bans were unconstitutional, as Mr. Olson --
PERKINS: Apples and oranges,because we're talking about an arbitrary boundary created by man between the races. That doesn't exist in nature. There is a boundary between people of the same sex getting married. They can't procreate. They can't -- there's nothing in nature to say that's normal.

But to go back, this is unprecedented decision. Voters in two thirds of the states have affirmatively gone out to protect the definition of marriage. This is the only time in a period of two decades in which voters and their elected representatives have affirmatively embraced the definition of marriage in their state policy, and now, you have the courts overturning that, robbing the people of their vote and their voice. What we see here, I believe, is that the court has lit a fuse to a powder keg culturally that is going to have ramifications for years to come in this nation.

WALLACE: All right. Let's talk about the merits of this, and, obviously different people have different views. What is your single, strongest argument against allowing same-sex marriage?
PERKINS: Well, I'd like to ask Ted, what's the purpose of marriage? 

OLSON: The purpose of marriage is what the Supreme Court has said 14 times. It's a fundamental right that involves privacy, association, liberty, and being with the person you love and forming a part of the community and being treated equally with the rest of society.  

I would have approached this differenly than Perkins, but he's on the right path and Olson is definitely wrong. The issue is not whether or not gays should have the right to have loving relationships and live private lives in peace without intrusion by the State, which Olson is promoting. The question is whether they have a right to impose an arbitrary social recognition of that status. I don't agree with unmarried heterosexual couples living in sin; I don't want to promote a social endorsement of those relationships. That's different from prohibiting those relationships. Perkins is basically pointing out that marriage reflects a natural foundation for procreation in society; it doesn't mean necessarily that each married couple must procreate, but procreation occurs in the context of the social, not State-conferred definitions of marriage and family, and meddling with the foundational constructs of marriage and family is opening Pandora's box with the sustainability and stability of society.

PERKINS: Well, we know from the social science that children do best with a mom and a dad. That's why our policies in this country have preferred marriage and given benefits to it. But let me -- if love is the factor, what boundaries are there?
OLSON: What court after court after court has said, that allowing people of the same sex to marry the person that they love, to be part of the community and to be treated equally, does no damage to heterosexual marriage. And court after court after court has said children living in a same-sex relationship do as well or better than people in other communities.

Perkins has the better argument here; there is little doubt that ill-designed welfare state policies have contributed to a vicious cycle of single-parent homes in urban neighborhoods. Olson's argument is fairly lame. For one thing, it is impossible for gay people to have natural children, and I have enough background in statistics and behavioral research to doubt almost any study seen by a court, never mind the competence of jurists to properly assess alleged empirical studies. One can certainly argue that gay relationships are less stable and faithful than heterosexual ones overall and because of the relative scarcity of gay homes/families  any definitive conclusions are, at best, dubious. I have already heard of numerous cases of gay couple "divorces"  and I think Olson has an uphill battle to convince others that a "more inclusive" definition of marriage and family contributes to societal stability.

WALLACE: What are you suggesting? That they're going to be polygamy. That people will be marrying their pets
PERKINS: No, I didn't say that. If we remove the natural established boundaries for marriage, the union of a man and woman, we have removed those boundaries, those guardrails. There's no arbitrary boundary --

Actually, yes, I would go there to polygamy and/or any variations to traditional marriage. This is not to say I believe in the State intervening in polygamous households. But the point is that we are engaging in socially experimental policies with institutions that have evolved over thousands of years, and we don't know the unintended consequences of meddling with our foundational constructs. I'm already seeing damage to communities of color which are unintended consequences of LBJ's War on Poverty. Some 40% of births in America today involved unmarried parents.

WALLACE: It's a different issue. I'm asking you, what's the impact on you and your family to have these people living next door?
PERKINS: Let's talk about it. Let's talk about my children all of a sudden, in school are taught values and morals that contradict what I teach as a parent at home. That's happening already across the country in those states that have recognized and forced same-sex marriage on the states.
Let's talk about the business place, let's about Aaron and Melissa Klein, a bakery in Oregon, forced out of business, forced to pay $150,000 in fines, simply because they didn't want to participate in a same-sex marriage.

WALLACE: Mr. Perkins, I'm going to give you the final word. In your answer, I'd like you to talk about what role you think this will play in the 2016 Republican presidential battle.
PERKINS: Well, look, adoption agencies have been put out of the business in Massachusetts. Parents have been denied the right to determine the values their children are taught. It affects families. It affects all of Americans, and it's wrong for the court to take away the voice of the people.
I think it's an issue not only in 2016. Like Roe v. Wade, the court wanted it to go away 41 years ago. It's still here. This issue will be here for decades to come if the court does not allow the states and the people to deal with it.

Olson in the interim of this concluding state continued comparing "gay marriage" to SCOTUS action on  anti-miscegenation laws, basically arguing the sky didn't fall just because we removed marriage obstacles from interrracial couples. That is totally nonresponsive to the point of discussion. Perkins is bringing up some very salient issues, like how some Catholic institutions like adoption agencies are being driven out of the market because the Catholic Church does not subscribe to gay marriage/family policies imposed by the State meddling with foundational constructs.

Finally, for those who have not read my related post to The Libertarian Catholic group last Thursday, I republish it here for your convenience:

(Libertarian Catholic). Using the term "marriage equality" is like saying there is no difference between men and women and the unique relationship between the sexes is not unique. It is a lie.

They are basically arguing marriage is a fundamental right and that the traditional definition of marriage enforced by individual states is discriminatory and deprives gay couples of relevant benefits under the law. This is basically a Fourteenth Amendment argument.

Remember the SCOTUS Reynolds decision (re: Utah and the Morrill Anti-Bigamy Law); the argument was that LDS followers practicing polygamy were being denied religious liberty. Among other things, the Court pointed out that any unlawful act could be prescribed by a religion (say, for example, a ritualistic sacrifice of your first-born) and said basically the cognitive aspects, not behavior, of religion were protected and also referenced the concept of traditional marriage back to early English law.

Justice Kennedy didn't go all the way to arguing a constitutional right to marry (which is being argued by Reason, Cato Institute, etc.) and pays lip service to traditional state regulation of marriage, but then some magic happens, and he upholds, on a legal technicality of standing because the state's elected leadership, the governor and the attorney general, refused to defend the proposition, throwing out California Proposition 8 which reinstated the traditional definition of marriage to the state constitution. (The state Supreme Court had thrown out an earlier traditional marriage proposition, arguing it had not been properly drafted beyond its scope of review.)

Keep in mind that California and other states also had provided legally protected domestic partnership/civil unions with marriage-like provisions, e.g., hospital visitation, inheritance, etc. Among other things behind that California court decision was the talking point that partnerships or unions were "second-class marriages" that barred gays from government marriage-conferred goodies, a Brown (education)-like "separate but equal" target. 

I do find it paradoxical that libertarian think-tanks, instead of pointing out it's not to the benefit of gays to subject their relationships to Statist meddling, have cheered on judicial tyranny. I oppose State intervention in the social context, of meddling with private-sector social norms, institutions (like marriage and family) and traditions. I'm concerned about meddling with socially-evolved constructs, across cultures and religions, over thousands of years.

As Catholics and Christians, we know that real marriage is in its sacramental nature, not a piece of paper from the State. Whatever mutated construct the State is creating is NOT "marriage". I would prefer for gays not to co-opt a heterosexual construct. As a Catholic libertarian, I accept the right of others to associate in ways inconsistent with moral teachings; this is the essence of free will. I would prefer to see the concept of marriage fully privatized--which I believe is the true libertarian position.