Ted Olson vs. Chris Wallace on the Prop 8 Ruling

|

Former Bush administration Solicitor General Ted Olson, who led the charge against California's Prop 8, the ballot initiative amending that state's constitution to prohibit gay marriage, ably swats away questions from Fox News's Chris Wallace, who repeatedly sputters that Judge Vaughn Walker's ruling was a case of "judicial activism":

Watch the latest video at video.foxnews.com

NEXT: Romer '92: It's Not the Filled-In Holes, It's the Buckets of Money

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. To ban gay marriage is to intervene on freedom among consenting adults and I find that very offensive just as any conservative should. Unfortunately many of the modern conservatives just want freedom for practicing Christians who are not from Mexico. So, Goldwater is officially a thing of the past.

    1. As one of Reason’s many Pro-Torture, Pro-Surveillance-State, Anti-Religious-Freedom-for-Muslims, Anti-Evolution-in-schools, Anti-Gay-Rights Libertarian readers, I am disgusted that people like Moynihan want to destroy our children by allowing The Fags to marry and have hot, sweaty, deeply passionate anal sex with their fellow Fagfolk.

      1. I don’t think you’re a libertarian, I think you’re a reactionary who wants to discriminate against others with state sanctioned bigotry.

        It’s none of your business what two consenting adults do in their bedroom- that’s libertarianism. Thinking it IS your business and using government to enforce it- that’s fascism.

        1. I don’t think you’re a libertarian, I think you’re a reactionary

          You misspelled “troll”.

          1. Thank you! Love your user name.

    2. To ban gay marriage is to intervene on freedom among consenting adults and I find that very offensive just as any conservative should. Unfortunately many of the modern conservatives just want freedom for practicing Christians who are not from Mexico. So, Goldwater is officially a thing of the past.

      That does not make it unconstitutional.

      Suppose a state had a law that effectively prohibited underage boys from having sex with underage girls, but not underage girls for having consensual sex with underage boys. The use of such a gender classification in a criminal statute is abhorrent, in opposition to the values of justice and the principles of equal protection.

      And yet, the United States Supreme Court upheld this law against a 14th Amendment challenge in Michael M. v. Superior Court .

      1. And yet, the United States Supreme Court upheld this law against a 14th Amendment challenge in Michael M. v. Superior Court .

        And your thoughts on that are…? Merely saying “nayahh nayahh Supreme Court”, as you have been doing for the past week on this issue, is not an argument.

        1. And your thoughts on that are…? Merely saying “nayahh nayahh Supreme Court”, as you have been doing for the past week on this issue, is not an argument.

          The Supreme Court applied the 14th Amendment correctly, even though it meant upholding a patently unjust law that discriminated on the basis of gender (and sexual orientation!).

          If we are to remove from the Congress and the states the power to pass laws like the one upheld in Michael M. , then the proper procedure is the Article V process- just like we did when we found it no longer acceptable for the government to deny suffrage on the basis of gender, or deny suffrage to people 18 years and older on the basis of age.

  2. Meanwhile, Olson sputters about interracial marriage, which is irrelevant (as noted in the decision) since the 14th amendment plainly intended race to be a protected classification, while sexual orientation was not so intended.

    1. If that were true, wouldn’t that merely have been an oversight? You don’t sound very disappointed. What’s the difference? It’s okay to make gays 2nd class citizens?

      1. I’m all for making huge swaths of people second class citizens.

        You can be their president.

      2. If that were true, wouldn’t that merely have been an oversight? You don’t sound very disappointed. What’s the difference? It’s okay to make gays 2nd class citizens?

        “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.”- Slaughterhouse Cases , quoted in Loving v. Virginia

        Now of course the 14th Amendment does not always allow discrimination on other classifications besides race; that view had been rejected by the Supreme Court since before 1900, and Loving or Slaughterhouse does not change that.

        But neither did it mean that discrimination on the basis any conceivable classification is held to the same level of scrutiny as racial discrimination. I have already demonstrated with my reference to Michael M. v. Superior Court that gender and sexual orientation discrimination is upheld in cases where analogous racial discrimination was

      3. You are familiar with the 19th Amendment, correct? That’s the one that guaranteed the right to vote regardless of sex.

        Now if we already had 14th Amendment Equal Protection, why would we possibly need another amendment to grant women the right to vote?

        Let that sink in: the 14th Amendment isn’t even broad enough to give women the right to vote. And yet it’s broad enough to require states to allow women to marry other women.

        1. Now if we already had 14th Amendment Equal Protection, why would we possibly need another amendment to grant women the right to vote?

          Let that sink in: the 14th Amendment isn’t even broad enough to give women the right to vote. And yet it’s broad enough to require states to allow women to marry other women.

          +1000000000

  3. This argument basically boils down to the following:
    Is marriage defined by individuals, families, and churches and state should be compelled to recognize that ?
    or
    Is marriage defined by the state and individuals, families and churches should be compelled to follow its lead?

    1. Since marriage existed way before the state, I don’t think the state can define it.

      1. Exactly, the State has no business defining the boundaries of marriage other than those arrangements that may be violating the rights of one participate (ie arranged or forced marriages, underage marriage)

      2. Since murder existed way before the state, I don’t think the state can define it.

        1. I’ll know it when I see it

    2. In what way are families and churches ‘compelled’ by this decision?

      1. Well, a minister for a gay wedding is definitely compelled by the state to not sign a wedding certificate.
        A judge will be compelled to not recognize a partner during an inheritance or child custody proceeding.
        A partner or his/her family may be denied access to a loved following a horrific accident.

      2. See: Catholic Charities

      3. Given the long history of initially negative rights being converted into positive rights, this is my one concern with gay marriage and why I’d prefer the government get out of the marriage game entirely and instead sanction only civil unions. My worry is that it will be only a matter of time until recognition by third parties of gay marriage will be seen as a positive right and we will have Canada-style human rights commissions going after religious groups that do not recognize those marriages.

        Right now we are told that the government would never compel religions to recognize these marriages, but in the strange paradox of government time “never” is usually about five years and “immediately” means at least ten (but more often it means that we will have commissions working hard on something that will never happen).

        The solution is to make a civil union the only state-sanctioned option and leave marriage undefined in legal terms but specifically allow religions, etc. legal room to take action based on their own definition of marriage. (E.g., a Catholic charity could define marriage as one man + one woman recognized by the Mother Holy Church and extend adoption only to someone who meets that requirement, thus excluding a lot of people already considered married; on the other hand a gay adoption service could extend recognition of marriage only to same-sex couples.)

        But the fight really isn’t about the legal equivalence of marriage for many, but the social acceptance that the term “marriage” would imply. So you have, e.g., LDS folks leading the charge for Prop 8, but not opposing civil unions with essentially the same legal rights as marriage. By elevating marriage to a state-sanctioned right, the stakes are raised immensely for all involved.

        1. I guess requiring religious institutions to recoginize and/or perform gay marriage would come down to a battle between the first amendment and the 14th. I would think in terms of performing such, the first amendment would win. In other recogizition (for, example, considering a gay spouse as a spouse in terms of medical benefits from a church employee, or visiting rights of a patient in a religious hospital), the 14th would win.

          As for the marriage vs. civil unions issue, that would be a reasonable choice, but it will never happen, because people who are currently married but not within a religious ceremony would not want to no longer be married. That would be more unpopular than keeping the current system and allowing gays the same rights.

        2. The solution is to make a civil union the only state-sanctioned option and leave marriage undefined in legal terms but specifically allow religions, etc. legal room to take action based on their own definition of marriage.

          The problem that I have with privatizing marriage is that in doing so we’d have to destroy the spousal testimony and marital communications privilege.

          Get rid of state recognition of marriage and your wife can be forced to testify against you, and your ex-wife can testify about things you said to her during marriage.

  4. To allow Gay marriage is to intervene on the definition of marriage as it has stood since time immemorial.
    This is solving the wrong problem the wrong way. If the government screwed up by leaving out gays being able to enter a contract that grants legal benefits to them, then the government needs to alter it’s laws, not stretch the definition of marriage to fix it for them.

    If the government ruled that each building had to have at least 20 womens toilets only, leaving no toilets for men, it would be wrong for the government to fix that by redefining the term woman to include men. The correct answer is to fix the stupid law that they created.

    1. Let’s not use the history of marriage as it’s defense. Historically marriage was financial arrangement between families and had nothing to do with love or the actual people getting married (other than being forced to live with and procreate with someone NOT of their choosing)

    2. Tradition can not be a deciding factor in judging the constitutionality of something. The ruling specifically mentions this.

  5. To allow Gay marriage is to intervene on the definition of marriage as it has stood since time immemorial.
    This is solving the wrong problem the wrong way. If the government screwed up by leaving out gays being able to enter a contract that grants legal benefits to them, then the government needs to alter it’s laws, not stretch the definition of marriage to fix it for them.

    If the government ruled that each building had to have at least 20 womens toilets only, leaving no toilets for men, it would be wrong for the government to fix that by redefining the term woman to include men. The correct answer is to fix the stupid law that they created.

  6. I’m interested in the constitutional argument (and I mean that seriously. You bust out “love” and you’re gonna get raped) for gay marriage that won’t be eventually used to enshrine polygamy and other partnerships as constitutional rights.

    1. Perhaps we should have stopped before recognizing straight marriage? It’s obviously led us down a slippery slope to this point.

    2. Give ’em an inch and they take a mile?

      Alright, thats it, nobody gets any rights anymore! Apparently you people can’t handle it. You might start marrying dogs and goats.

    3. You guys gave up too fast.

      1. I know. I just take the arguments that government has any sort of significant role to play in marriage or our sex lives very seriously.

        1. I just DON’T take the arguments….

          I think its time for sleep.

    4. I’m curious as to what Mr. Olson said that caused you to think the argument(s) presented in this case would be applied to other partnerships? I clearly heard him speak about not discriminating based on things such as sexual orientation and race. I didn’t hear him suggest the government can’t discriminate based on age (minors not being legally able to consent) or multiple adults.

      My guess is that there is a long history of the courts upholding states law on age of consent, therefore establishing “age” discrimination.

      As for polygamy- in Reynolds v United States, the SCOTUS noted “The fact that a person could only be married to one person had existed since the times of King James I of England in English law, upon which United States law was based”. SCOTUS has upheld anti-bigamy laws, rejecting religious arguments.

      Basically- you’re comparing apples to oranges. Constitutional arguments for gay marriage couldn’t be used for polygamy and child marriages because they’re not the same issue.

      Now- what I’m interested in is how the unjustified fear of polygamy or child marriages is a justification to deny other citizens their rights?

      1. “”The fact that a person could only be married to one person had existed since the times of King James I of England in English law, upon which United States law was based””

        Uh, wouldn’t this be the same reasoning that Prop. 8 people are arguing that since male/female marriages has been the tradition since, like, forever ever, we shouldn’t depart from that? I don’t “fear” polygamy, I just don’t know how you can allow one deviation from the recognized male/female marriage, and somehow disallow (constitutionally) with a straight face other forms of couplings. Of course the Supreme Court can rule whatevs it likes, and treat gay marriages as constitutionally protected. But what reasoning could they use that applies conveniently to just one pairing and not for multiple pairings? What makes polyamory not a sexual orientation?

        1. No- it’s not the same reasoning as Prop 8. Notice it doesn’t say “one man and one woman”. It says one person and one person.

          That you would have to ask “What makes polyamory not a sexual orientation?” means you are grasping at straws. Seriously?

          You have no legal argument yourself, but demand it of others. I believe that’s called “hypocrisy”.

          1. So sexual orientation is something liberals would like to create the definition for?

            1. I think doctors may have beaten liberals to the punch.

          2. So, what’s the difference between that and Bob marries Sue (person and a person) and Bob marries Lisa (person and a person) and Sue marries Lisa (person and a person)? How are laws against bigamy constitutional? Two willing partners coming together and forming a consensual agreement… what is the state interest in preventing that?

            Are there any other state-sanctioned “unique contract” situations? I can work at more than one employer. I can join more than one health club. I can attend more than one church. I can own more than one home. There are limitations on “primary residence” (you only get one), but that’s for a tax bonus, you can still have homes all over the place if you want. Heck, you can even hold dual citizenships.

  7. He seems like a tough fella to argue with. No matter the position.

  8. “U.S.A out of marriage!” should be a libertarian motto

    Here’s a great piece from Antiwar.com’s boss Justin Raimondo:
    http://www.takimag.com/site/ar…..age_sucks/

    He’s gay, and libertarian, and is against the “legalization” of gay marriage. He believes it will take away everything fun and unique about being homosexual, and is just another part of the Left’s attempt to politicize and regulate private behavior. He also argues against the “gay gene” theory, which is interesting coming from a gay man.

    1. Raimondo’s a jackass. If the old “men are pigs” argument held any water, then no one would get married, not just gay men. It’s just a vestige of the old 70s Radical Faerie notion that gays shouldn’t do anything assimilationist like get married or buy homes or vote – we should all just go naked, eat nuts and twigs, dance on the beach and beat off over rocks (but enough about Starchild).

      1. “we should all just go naked, eat nuts and twigs, dance on the beach and beat off over rocks”

        These gay marriage discussions really bring out the best in everyone.

        1. Actually I wrestle with the arguments he makes… I have always wanted my partnerships to be special or different, not a facsimile of heteros.

          1. I see what your saying. Thats why I don’t think government should be defining it. Its up to you, the individuals, to decide the meaning.

      2. Have you seen the divorce rates? How much of that do you think is due to infidelity?

        Almost all scientific researchers agree that males are naturally promiscuous

    2. He speaks as much for the gay community as Bill Maher speaks for Libertarians.

      1. Why? He doesn’t share the creepy “we want to be like everyone else, please accept us” agenda? He thinks there’s more to being a homosexual than just faulty genetics and statist political causes?

        Oh, and a crucial difference is that Raimondo is actually gay. Maher is not actually a libertarian

    3. So what.

  9. Hold on, hold on. Before we start talkin’ about kicking the federal government out of the business of marriage, let’s first consider how this would intefer with interstate commerce.

    1. Your ideas intrigue me and I wish to nominate you for the Supreme Court.

  10. Marriage between hetersexual partners and homosexual partners is agreement between two consenting adults. As a libertarian, I believe that the government should stay out these peoples’ way. Hell, I’m even for polygamy if the wives (or husbands) have consented.

    Marriage between an adult and a child is a form of coercion, as is marriage to animals (but, hey, as long as we’re eating animals, might as well fuck ’em. Am I right?). The government should step in and stop what basically amounts to slavery.

    The one thing that leaves me puzzled is incestious marriages. What is the consensus among libertarians of how these marriages should be treated?

    1. Agree with everything.

      As creepy as incestuous marriages may be, I don’t think we should inject government into the situation. So ya, standard libertarian response here.

      1. After seeing my own daughter, I now favor legalizing incest.

    2. There was a report written by a couple of anthropologists on incest, and what they called the “incest taboo”. One of them noted the “incest taboo” forced families to reach out to other families for marriages, and this led to an increase of connections to others in society, therefore strengthening society.

      An example of how incestious marriages can keep a society closed off would be Saudi Arabia, where the royals tend to marry their cousins, and societal evolution is non-existent.

      I’m not sure if your question refers to cousin marriages, or other relations. I would worry about these marriages if there is the possibility of intimidation, mental and/or emotional abuse. My guess is the law has taken this into consideration as well, and that’s why a number of these laws would be upheld.

  11. Draft Ted Olson in 2012

  12. Judges rule!

  13. I know this will sound crazy simplistic, but why not just call everything “civil unions”? Has that idea ever been floated by either side on this issue?

    1. I once though changing the language to “civil unions” would help, but the fact of the matter is they’re the same thing.

      Frankly- I think those who favor giving gays civil unions instead of marriage are bigots since the difference between the two is nonexistent. It’s their way of maintaining superiority over relationships they think don’t “deserve” the “proper” title of marriage.

  14. All state partnerships (heterosexual and homosexual) = civil unions. Churches can do whatever they want. Problem solved.

    1. Gay activists have rejected that solution in the past. They don’t want mere legal equality; they want social sanction and “celebration”.

      I don’t think you can draw a principled distinction between equal protection for gay marriage and equal protection for polygamous marriage or incestuous marriage. I don’t think there’s any argument for banning any form of marriage other than the historical “norm”, and if this is not sufficient for limiting marriage to one man/one woman, then why is it sufficient for banning any marriage (with the exception of marriage involving children)?

      Unless gay marriage proponents want to engage in special pleading, they need to acknowledge that they also believe that polygamy and incest should be legalized. I’m not saying this is right or wrong, I’m merely saying that if you disagree with this result, you need to explain why in a convincing fashion.

      1. Why should gay monogamous couples have to answer for polygamists and practitioners of incest? This is nothing but a slippery slope fallacy topped with bigotry, because you are implicitly equating gays with bigamists and those who practice incest. Even though the majority of these people are heterosexually oriented, somehow it’s up to gays to answer for them?

        1. What do you have against those who practice incest, bigot?

  15. Why should gay monogamous couples have to answer for polygamists and practitioners of incest?

    They don’t have to “answer for them” at all.

    However, if your gay monogamous couple wants to get married under a judicial decree that states may not limit marriage to a man and a woman, then I would be curious to know if this is a principled position (in which case, they must also be supportive of polygamous and incestuous marriages), or an expedient one (they want to pull the ladder up behind them, and deny others the rights they insist on for themselves).

    If equal protection doesn’t require polygamous and incestuous marriage, how does it require gay marriage?

    1. The judge found no rational basis for denying equal protection to gay couples. There are arguably plenty of such bases to continue restricting polygamy and certainly incest. Regardless, polygamists and the incestuous are perfectly capable of taking their own cases to the court. Your logic, such as it is, applies equally to straight marriage, does it not? Why should we allow straight marriage when it could lead down the slippery slope to polygamy?!

    2. If equal protection doesn’t require polygamous and incestuous marriage, how does it require gay marriage?

      It does not.

      From Reynolds v. United States :

      An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

      What do you suppose monogamy meant back in 1879? Did it include same-sex couples?

      From Davis v. Beason , a case that involved several constitutional challenges, including an equal protection challenge.

      They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment as aiding and abetting crime are in all other cases.

      Note that the above quote was a bare assertion by Justice Field. Field cited no evidence and no prior court cases that supported the above position. Furthermore, Field cited moral disapproval. And now it is case law.

      Field also quoted Justice Matthews’s opinion in Murphy v. Ramsey .

      Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.

      The Supreme Court itself defined marriage as between one man and one woman, and laws reflecting that definition, or to enforce that definition, are constitutional.

      Furthermore, Davis was a unanimous opinion, which meant that Justice John Harlan had rejected the constitutional claims, including the equal protection claim, and six years later he would dissent in Plessy v. Ferguson .

  16. There are arguably plenty of such bases to continue restricting polygamy and certainly incest.

    What were the rational bases that the Supreme Court actually used when they upheld laws that imposed adverse consequences for polygamy and advocacy of breaking anti-polygamy laws?

  17. Is it just me or does it seem like the biggest threat to the “gay” community is gay rights activists themselves? What they really wish to accomplish is the “taming” or assimilation of gays into the mainstream, thus bringing them under the iron boot of society.

    We see plenty of gay would-be MLKs, but where is the gay Malcom X?

    1. Sometimes I am tempted to agree. But the gay community has bought its distinction with a lot of misery. You’re only fabulous if you manage to survive. If gays want to join mainstream society at the sacrifice of some of their fabulousness, who am I to say they can’t? We’ll still have the best lawns on the block.

      There’s no gay Malcolm X probably because there doesn’t need to be. One thing that distinguishes the struggle for gay equality and racial equality is that gays, having the ability to hide their orientation, have entered the upper echelons of society already, and are not at an economic disadvantage to straights.

  18. The judge found no rational basis for denying equal protection to gay couples. There are arguably plenty of such bases to continue restricting polygamy and certainly incest.

    Such as?

    1. Incest is easy. You know, how the state shouldn’t openly endorse genetic freaks. Polygamy arguably is itself an oppressive institution. It predates modern marriage and almost universally involves one husband, many wives, and it’s difficult to see how all partners in that arrangement would practically or legally have equal say in a contractual arrangement.

  19. Two to three years ago, there was a big hum-ho in Germany about Patrick St?bing and his biological sister Susan K. who had gotten seperated but later met and fell in love, had four kids and then later found out they were siblings. The government forbid any further blood relations and incarcerated the man on several occasions. The german high court ruled that the german law-makers were in their right to make laws criminalising incest for eugenic reasons! Afterwards he appealed to the european court for human rights, I never heard what had become of that.

Please to post comments

Comments are closed.