Post-conservative Ted Olson, attorney, rationalizes the assault on marriage and the Constituion

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By Mona Charen

Appearing on “Fox News Sunday” to discuss the Supreme Court’s decision to let stand a number of judicial rulings overturning the acts of legislators and/or voters in 16 states, famed advocate Ted Olson offered the kind of reasoning that, in his former incarnation as a conservative, he would have scorned. “Over 59 percent of Americans now believe that marriage equality should be the law of the land,” he proclaimed. Seconds later he seemed to contradict himself: “We have a Constitution and Bill of Rights precisely because we want protections from majority rule.”

Ted Olsonl, left, debates Tony Perkins, center.
Ted Olsonl, left, debates Tony Perkins, center.

Which is it: a fundamental right that ought to be recognized without regard to majority views, or a popular view that deserves to be enshrined in the Constitution by the courts just because it’s polling well? If it’s true that large majorities have changed their minds on same-sex marriage, why not leave the matter to state legislatures and voters rather than undemocratically taking the question out of their hands?

When his opponent, Tony Perkins of the Family Research Council, asked Olson what the purpose of marriage is, Olson dodged the question and spoke instead of courts recognizing a “fundamental right that involves privacy, association, liberty…” Repeating the boilerplate offered by judges is nonresponsive.

Olson sprinkles his language liberally with emotionally laden expressions such as “dignity” and “respect,” as if to say that those who resist same-sex marriage are opposed to those civilities.
Asked about where he would draw boundaries on who should be permitted to marry if it’s “only about love,” Olson changed the subject, mentioning the “tens of thousands” of children being raised in same-sex households who “deserve the right to equality and the same respect and decency that other people have that are living right next door.”

“People Next Door” has become the chief talking point of the same-sex-marriage advocates. Chris Wallace asked it of Perkins (not that he was taking sides, he was fair): “You and your wife live happily in this house; there’s a same-sex couple living here. What’s the damage to you?”

This is the nub of the argument. As Olson claimed, “There’s no heterosexual couple that is going to decide to get divorced or not to get married or not to raise children just because another couple next to them is treated equally and with respect and decency under our Constitution.”

But it does affect the larger culture. If it didn’t, there would be no need for debate. Homosexuals comprise a tiny fraction of the population (just over 2 percent according to the CDC). I wish them nothing but happiness and peace, but they are a side issue. Of course they deserve “dignity” and “respect,” but changing marriage is not the way to get there.

Families began disintegrating and failing to form long before gay marriage became a cause celebre. But the movement for same-sex marriage pushes our culture in exactly the wrong direction because it forwards a damaging conception of marriage. Marriage, Olson says, “is about being with the person you love.”

Not so. Marriage is about the welfare of children. The state confers benefits on opposite-sex couples because they conceive and raise children, and it believes that strong families are the foundation of strong polities. Libertarian claims that the state should remain aloof from family matters overlook the fact that when couples divorce or part ways, the state becomes involved in property division and custody, so it’s unrealistic to keep the state out.

The problem with endorsing same-sex marriage is that it conveys to heterosexuals that mothers and fathers don’t really matter. If two men who love each other or two women who love each other are equally good for children’s welfare, then the argument that men and women should marry and remain faithful to the partner with whom they conceived children loses its force.

The “being with someone you love” case fits nicely on a greeting card, but it also contributes to the divorce culture, because the implicit message is that when you no longer love someone, the purpose of the marriage is over. Adults’ feelings will trump all, as they too often do already.

The move for same-sex marriage was never about marriage. It was about social acceptance. We should give the social acceptance, but not undermine marriage.

Mona Charen is a Senior Fellow at the Ethics and Public Policy Institute.

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