March 29, 2017

Worth a Look: Ted Olson

The attorney who successfully argued the recent overturning of Proposition 8, Ted Olson, is featured in the video below.  Proposition 8 is a California approved referendum that outlaws same-sex marriage.  Olson, a well-known conservative who served as Solicitor General under George W. Bush from 2001-2004, argues that marriage is a fundamental right that equal protection guarantees.  See the complete argument below.

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  1. Interesting fact: The ruling by Chief U.S. District Judge Vaughn Walker whom was the loan judge that decided to overturn the gay marriage ban, although a Reagan appointee and conservative on many issues, happens to be a homosexual. In my humble opinion that constitutes a conflict of interest and Judge Walker should have recused himself.

    • I agree that if Judge Vaughn Walker is homosexual then he should have recused himself. With that being said, however, do you think a heterosexual judge would rule differently? While a heterosexual judge could rule differently, Ted Olson’s argument appears compelling in that the Supreme Court has recognized, on separate occasions, that marriage is a “fundamental right,” and anyone who is abridged from a fundamental right is a violation of the Constitution.

      • I believe any ruling by the Supreme Court on a religious ceremony is an encroachment of the free exercise clause of the 1st Amendment. — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Marriage, being the religious ceremony that it is, should be completely free from government interference. If homosexuals truly wish to be treated equally then they should push for legislation that prohibits states to issue marriage licences. As for the legal privileges that come w/ the licence, states could issue the exact same document only without reference to “marriage.” That way gays and straits alike would get equal treatment and government wont be giving edicts to religious practices. To your question about whether a heterosexual judge would have ruled differently: maybe but perhaps not, but regardless the ruling should have come from a judge without a conflict of interest.

  2. The Supreme Court has intervened with marriage before, so claiming that marriage is exempt from government intervention appears invalid. The Racial Integrity Act of 1924 was a Virginian law that made marriage between a white person and a non-white person to be a felony. Loving v. Virginia (1967) struck this law down in violation of the Equal Protection Clause and thereby ended all race-based legal restrictions for marriage. Perhaps you will disagree, but same-sex marriage appears analogous with the racial limitations once imposed on marriage.

    Though a difference I do see between same-sex marriage and race-based marriage limitations is that I do not think the Bible mentions race when it defines marriage, but it does mention gender (though I’m not a theologian and could be assuming wrong). Still, due to the separation between church and state, I’m not sure the Court is allowed to directly use the rationale within the Bible (how marriage is defined) to decide a case.

  3. If courts held stead fast to stari decisis then we would still live in a world where schools were segregated and those committed to mental hospitals were sterilized against their will.

    Quick question: If it may be a violation of the separation between church and state to use the religious definition of a religious ceremony when deciding the case then how is it not also a violation for government to tell said religion how they will (or will not) conduct the ceremony?

    It would seem to me that any law, which would include The Racial Integrity Act of 1924, is in violation of this “high wall of separation” if not the free exercise clause. Which is why I previously suggested that states should get out the marriage business all together.

    footnote: separation of church and state is no were to be found in the Constitution, merely jurisprudence.

    • You raise a good question and I do think it would be a violation of the Free Exercise Clause to tell a religion how to conduct its ceremony. Though with this case, it appears a religion is claiming exclusivity to a ceremony that is used by the entire society. In effect, a religion is trying to dictate how the rest of society ought to conduct a ceremony, not necessarily government dictating how Christians can conduct ceremonies. Perhaps you can shed some light, but should Christianity be able to have a so-called monopoly on marriage and tell people of other religions how to conduct their marriage ceremonies?

  4. The short answer to your question is “no.” But I think you misunderstand the situation. Christianity is not claiming exclusivity to marriage, legislatures and courts are. Which is my point. Christianity has no right to tell other religions how they conduct their ceremonies in the same way that they should be free from outside forces dictating to them how they will operate.
    Which is why I suggest the end of state issued “marriage licences.” Once that happens it no longer becomes an issue that legislatures have any jurisdiction or control over. Problems will arise if that happens because of the legal implications of marriage: shared worker benefits, rights to visit in hospitals, ability to file jointly on taxes etc. But this is an incredibly easy fix. Create a new licence that guarantees all the same legal privileges as a “marriage licence” but call it a “legal union licence” that way if a homosexual couple wishes to “marry” they can receive all the same legal rights as heterosexual couple while not stepping on the pretensions of religions.

    • I agree that the benefits associated with a legal marriage are a part of why proponents of same-sex marriage seek the capacity to marry, but another part is that if we distinguish and create different types of marriage, then we are creating an apprehensive social hierarchy at the most fundamental level of relationships that the Court has recognized on 14 separate occasions. Do you agree that creating classes of marriage implicitly creates an unequal social hierarchy and second-class citizens? The real question is not if they are equal, but whether they are separate.

      In regards to your claim that the courts are claiming exclusivity, I partly agree because courts are indeed laying a fundamental level of ground rules for marriage, but then again they are not dictating how Christians or anyone else can conduct ceremonies. All this case would do is grant the capacity for same-sex marriages to occur. Nothing is being forced from or given to the operational procedures that Christians must use, but instead just who is allowed to get married. Christians can continue to marry whoever and however they want, but they cannot forbid other people from a fundamental right.

      I believe that in order for a fundamental right to be abridged, a compelling reason must exist. I am not aware of a compelling reason for why same-sex marriage should be prevented. Although you claim that marriage is a religious ceremony and government should not interfere with it, marriage is a fundamental practice of this civilization and no belief system or culture has ownership of it. How any belief system defines marriage is not fair to apply to other people, especially in the increasingly plural age that we are in. With fundamental rights such as free speech, freedom of religion, and freedom to marry whoever you wish, the question is not why we should allow them, but why not.

  5. I think you’ve raised the fundamental question underlining the gay marriage debate. But before I get to it, a few quick points: 1. My suggestion for a legal remedy is not to “create different types of marriage,” quite the contrary. Hetero and homosexuals alike would receive the exact same legal documents and the exact same legal protections. And if some couples wish to have a church (or mosque/synagogue) recognize that union through some form of religious ceremony then that’s their prerogative. The relevant aspect is that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Religious recognition is irrelevant to “equal protection of the laws.” Which makes your first question about “social hierarchy” moot with a conclusion implied by the framing of it anyway.

    2. In your second paragraph: “…courts are indeed laying a fundamental level of ground rules for marriage, but then again they are not dictating how Christians or anyone else can conduct ceremonies.” You’ve contradicted yourself with in the same sentence. “Laying ground rules for marriage” IS telling religions (all of them) how they will conduct their practices. If a denomination of any religion willingly decides to recognize gay marriage then that is one thing, government forcing religions to recognize gay marriage is quite another.

    3. You state “The real question is not if they are equal, but whether they are separate”- Are you suggesting that when a man places his genitals where another man evacuates his bowels to be equivalent to heterosexual sex? A Kantian evaluation of universalizing each practice would suggest else wise. And if homosexuals have a fundamental right to marry then why do consenting adults not have the right to participate in bigamy? My religion background is spotty at best but I’m fairly positive that all 3 major religions tolerated bigamy at some point in time but legislatures and courts have failed to accept the practice (Reynolds v. US 1879). And in fact, bigamy as a practice is a criminal offense. If marriage is no longer recognized just between a man and a woman the slippery slope arises. Are incest laws a violation of the equal rights between a brother and sister that happen to love each other in a non-platonic way?
    This brings us back to the fundamental question behind the gay marriage debate. I suggest the dynamic of “Tolerance v. Acceptance.” Homosexuals have the right to be tolerated and are entitled to the “equal protection of the laws.” However, government cannot force acceptance. Acceptance would imply a perfect 1-1 comparison between homosexual acts compared to heterosexual relations that are paramount to the continuation of our species. Right or wrong there is a large portion (a majority I might add) of Americans that soundly reject that notion. Any attempts to force this acceptance would require overreaches of the government’s authority prohibited under our constitution.

    • I believe you misunderstand my reference to Plessy v. Ferguson in how it was deemed that blacks and whites had equal rights, yet they remained separate because of the social distinctions that resulted with social hierarchies. While I’m not suggesting the problem of same-sex marriage is equivalent to racial segregation in terms of numbers, it is equivalent in terms of legal theory. While same-sex marriage may not be my preference, your preference, or in the direct benefit of the continuation of the human species, the right for same-sex marriage still ought to be a right because it is consistent with other civil rights issues. In creating separate types of not what you refer to marriage but I suppose to the mutual affection between two people, we create separate classes, which cannot be equal even if with “equal legal benefits” because of the inherent social separateness. Marriage is so fundamental in our society that any distinction concerning it leads to inherent differences, as Plessy v. Ferguson showed with equal yet separate segregation laws.

      In regards to your second point, again I think you mistake what I say. While I concede that government indeed lays the ground rules for marriage, government is not dictating what must occur, but simply what cannot occur (the abridgment of a fundamental right to marry who you choose, not necessarily getting wed by a certain religion). These governmental rules that I refer to in the ground rules of marriage are comparable to other fundamental norms, such as not killing and not stealing, which do not dictate what must occur, but what cannot occur. As a result, all religions, if they so desire, ought to be able to not recognize same-sex marriage or conduct such ceremonies, but this doesn’t mean the government must also omit it.

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