Conservative Case for Gay Marriage

The recent challenge to California's Prop. 8 in federal court has an interesting plot twist: the attorneys representing George W. Bush and Al Gore in 2000 have joined forces to represent the plaintiff homosexual couples challenging the California law. Theodore Olson, counsel for Mr. Bush, makes his case in support of gay marriage from his conservative point of view in Newsweek here.

It's an interesting read. His viewpoint is not a particularly conservative one though he is a Republican and worked for the Reagan and the second Bush administrations. I find two major fault in his premises:

1) He gives far too much credence to the scientific evidence that homosexuality is an immutable trait. To my knowledge, the consensus on that issue within the scientific community is the same species of consensus that existed regarding global warming until 2009: one of questionable legitimacy, nowhere near understood with the degree of certainty with which it is advertised by its proponents.

2) He makes two assertions regarding the nature of marriage with which I continually take issue.

First, he says regarding marriage that, "At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership." While I agree that it is that, it is not uniquely that. Nor is the government's interest in providing a civil legitimacy to that relationship to promote such an arrangement between two consenting individuals just for the heck of it.

Second, he makes reference to the Supreme Court in striking down laws barring interracial marriage characterizing marriage as being "part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification." While it is that, there is nothing to indicate that the Supreme Court in so defining marriage conceived of it in any terms other than marriage between a man and a woman.

I do encourage proponents of gay marriage to read the article and shout "Hear, hear!" and those who are against it to hiss and boo. But it is always worth analyzing our position to ensure that we're at least attempting to make logical sense.

In my view, the courts are at a legal impasse regarding how to handle gay marriage. Supreme Court rhetoric aside, there is not a strong legal basis for making marriage as Olson and others define it a fundamental right protected by the Constitution. Nor is there a strong reason for a government to so solemnify and add a particular government protection to a union as its described.

Most of the origins of family law are geared to two ends: 1) protecting divorced women from the limited means, self-determination, and protections that they were once left with after a divorce, and 2) protecting and ensuring the safety and security of children in a marriage or following its dissolution.

The courts are further at an impasse due to the scientific uncertainty regarding the nature of homosexuality. It's not unlike Roe v. Wade's controversial analysis of the nature of life and viability of a fetus. An honest reading of the opinion in Roe can be summarized thus:

"It's really not possible for this or any court to make the type of scientific and theological determination on the viability of a fetus, nor is it probably appropriate. But for the sake of argument, we'll make one anyway."

In my view, the reason Roe has yet to be overturned is because there is no good way to reconcile the paradox of the decision other than to come up with an opinion that basically says,

"It's really not possible for this or any court to make the type of scientific and theological determination on the viability of a fetus, nor is it probably appropriate. But for the sake of argument and because we didn't like what the court came up with in Roe, we'll make up another one."

There's more, but I'll leave the rest to your comments.