Ted Olson Says Gay Marriage Not a Fundamental Right!

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Ted Olson Says Gay Marriage Not a Fundamental Right!

Marriage Watch / Maggie Gallagher

Well, no that's not exactly what the "conservative" lawyer fighting to overturn Prop 8 and impose gay marriage said. But when the judge asked him, "If California would simply get out of the marriage business and classify everyone as a domestic partnership, would that solve the problem?" Ted Olson said yes, that would resolve the constitutional issues, although it would not be politically feasible.

I don't know if he or anyone else recognizes what this statement of Ted Olson's means: the government has no obligation to recognize anyone's marriage as a marriage. What happens to the fundamental right to marriage-or gay marriage--then?

A distinguished Harvard Prof. Nancy Cott testified today, according to the LA Times, that "procreation has never been the central purpose of marriage in the United States. Professor Nancy Cott, who has written a book about the history of marriage in the United States, noted that George Washington, the father of the nation, was sterile. Procreation was one of the purposes of marriage but not 'the central or defining purpose,' Cott testifed. The larger purpose was to create stable households, she said."

Okay, so why weren't sisters allowed to wed? Can't they create stable households? I mean family members of all kinds live together, and raise children. Why weren't/aren't these considered marriages?

People thought there was something kind of central, important, and worth noticing about unions of male and female: they make babies. We need marital unions, in a way we don't need other kinds of relationship, however worthy or unworthy they may be.

I mean even at Harvard, back in the day, they could see that. And back in the day, they thought it mattered.

Nothing about the history, the structure, of marriage in the United States makes sense if you extract the reality that sexual unions make new life, were known to do so (even if not in every case) and were valued both for the good marital unions uniquely produced (children united in families with their mothers and fathers) and the evils they avoided (fatherless children).

This entry was written by Maggie, posted on January 12, 2010 at 5:15 pm, filed under Marriage Update. Bookmark the permalink. Follow any comments here with the RSS feed for this post. Post a comment or leave a trackback: Trackback URL.

9 Comments

John

Posted January 13, 2010 at 6:25 pm | Permalink

Prop 8 denies no one the freedom to marry. Nothing in Loving supports the argument that the freedom to marry extends so far as a freedom to marry anyone you choose without regard to reasonable restrictions related to legitimate state interests.

The Court in Loving acknowledged that marriage is a "social relation subject to the State's police power."
Jack

Posted January 13, 2010 at 7:16 pm | Permalink

Kevin is obviously right that marriage is not required to procreate. Maggie of course knows that. No one argued or implied otherwise. Given this obvious fact, why don't you ask yourself this question: If the status of marriage is not required for procreation, than why did the government care to give marriage a privileged legal status in the first place? Your comments have never answered that question, nor does the whole argument of the anti-traditional marriage 8 side.

The answer is simple: The rearing of children by the biological mother and father is paramount in order to maintain the sustainability of a society.

All laws relating to marriage up to this point have been geared toward reaching that goal. When crafting any change in marriage law, that must be the primary focus.

Arguments about childless marriages and sterility are also baseless. In the IT world, those are called edge cases. Laws rarely catch all possible scenarios and explicitly deal with them, nor should they. Remember: Government is always more sledgehammer than scalpel so the less work it does the better. The country has nothing to gain by prohibiting this type of childless union. Same-sex marriage, however, would mean the end of the protected status of biological parent-children relationships. That is the end of society as you know and love it.

Kevin is also missing the fact that no current marriage law violates equal protection. A gay man and woman would have as much right to marry each other as any other consenting male and female in this country. Marriage law was never about who you love. Why would the government give a dang if you love your partner? Why would they want to protect and subsidize that? The government has only ever been interested in ensuring a stable environment for child rearing. Frankly, it is none of the government's business whom you love, male or female.

I love my microwave, and even though it is an inanimate object, I know she loves me back (that's right, she). but that doesn't mean I expect the government to sanction that love and provide it legal privileges.
Dr. R.P. Miller

Posted January 13, 2010 at 7:24 pm | Permalink

What an appropriate question from the judge! What right does the state have in sticking its neck into what the church can and cannot do about marrying, burying, and baptizing? Why not go as at least one European country has done? Have "civil contracts" for both gay and non-gay relationships and keep "marriage" as a religious sacrament that churches can choose to limit or expand as their theologies dictate.
L. Marie

Posted January 13, 2010 at 8:16 pm | Permalink

Did they really just try to say that kids have nothing to do with marriage and families? Separating marriage from responsible child bearing and rearing is a mistake. Those who think that marriage won't be affected if it's redefined ought to read the fine print.
Jenny S

Posted January 15, 2010 at 12:51 am | Permalink

Sometimes it is really difficult to understand why so many are trying to defend marriage to be restricted to a man and woman. Most current stats reveal that 40% of all children are born to a single mother. Marriage success rate is less than 50%. These are pretty dismal facts to support the claim marriage is essential for the raising of children.

It was just a few decades ago that the courts finally struck down all the laws prohibiting a man and woman of mixed races from marrying. Actually, black men and women could not marry at one time in our country's past (without their owner's permission of course).

Perhaps some are trying to defend traditional marriage since the courts have just recently struck down all sodomy laws so now married couples can have relations in ways other than the missionary position.

If we truly wanted to defend traditional marriage, we should demand our government enforce the laws on adultery that are still on the books in many states.
jonathan

Posted January 15, 2010 at 4:20 am | Permalink

"..than why did the government care to give marriage a privileged legal status in the first place?"

Initially, a couple of reasons, make sure brothers and sisters could not marry, or someone with TB or drunkards. Insure and protect property, custody, support and inheritance rights and obligations. States also became involved after the Civil War with the rise of pensions, in order to regulate who was entitled to one. Also stop the practice of polygamy. Most recently to deny the children of same sex couples access to health insurance, inheritance, custody, social security etc.
Chairm

Posted January 15, 2010 at 11:39 pm | Permalink

And that sums-up the dismal view of the social institution of marriage, by the SSMer whose list of state interests in marriage does not differentiate marriage from other stuff.

Jonathan, got anymore wild goose chases you plan on running? Heh.
Kevinn

Posted January 16, 2010 at 5:37 pm | Permalink

The dismal view of marriage is that it is nothing more than a legal union of one man and one woman. Love, commitment, respect, these seems to have disappear from marriage, according to the marriage discrimination crowd. Why? I think it's because same-sex couples can practice those aspects just like opposite-sex couples!
Chairm

Posted January 16, 2010 at 9:35 pm | Permalink

Love and commitment and respect are certainly not excluded from the marriage idea. That's intertwined with the core meaning of the social institution.

But SSMers keep insist that legal requirements are decisive. They attack the man-woman requirement; they deride the marital presumption of paternity to which all who enter consent when they say, I do. Both requirements are vigorously enforced. So legal requirements exist but because these don't fit the SSM idea, SSMers cover their ears and eyes to the actual disagreement.

Meanwhile, there are no legal requirements for love and respect. SSMers say that no-fault divorce has put us on the trajectory that leads to the SSM-merger -- so you can cut commitment out of your argument as well.

Or you could just drop the self-defeating rules of argumentation that you have relied on so far.

If you don't want to rely on reason, but on emotivism, sayso and then drop attack on the rational basis for the marriage law. Make the argument for your own emotional basis the true litmus test of what is and is not constitutional.

Why don't you do that?

Heh. I guess that Olson has been trying to do just that and has already conceded that in his view the abolition of marital status would be a-okay with him.

Ted Olson Says Gay Marriage Not a Fundamental Right!

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