Saturday, January 16, 2010

Gay Marriage is Not a Right

Ted Olsen, a great man and a great conservative, has teamed up with the liberal attorney Davis Bois to argue in the California State Supreme Court against Proposition 8 in which the people of California banned gay marriage. This week he wrote in Newsweek magazine an article defending his position. You can find it at I believe he misses at least one fundamental and game changing point, and here is why.

Dear Mr. Olsen,

As a a lifelong conservative, I take exception to the case you make for gay marriage in as much you fail to address the most conservative of all objections, that being support for the rule of law.

The arguments you present are quite moving, although you might want to trash that "settled science" bit as to the nature/nurture debate about homosexuality. I am not suggesting you are wrong, only that there is nothing at all settled on the issue. But I digress. The problem is that the proper forum for your most thoughtful and compassionate arguments is a legislative body, not a court of law. Were your arguments presented to the people's representatives, I for one might support them. But you seem to have chosen the liberal elitist approach. They know it is easier to win an unelected judge's support than a majority of the voters or their representatives.

For 200 years federal, state and local legislatures have passed laws giving privileges and responsibilities to married couples. In every case the "couple" was defined as a union between a man and a woman. This limitation may be unfair. It may be undesirable. But it is legal, and claiming that it is illegal based on an imaginary extension of a basic constitutional right is a gross misreading and misuse of the constitution. And, if it is not a constitutional violation, it is no business of the courts.

As a conservative I can support the right of people to do as they please so long as it doesn't affect others, but to enjoy privileges simply because another group has them, is offensive to me and many others. Do I have a constitutional right to park in a handicapped spot under some bizarre extension of the equal protection clause? Was the court right when it presented an incoherent argument in order to create the "right" to an abortion. As repulsive as legislatures often are, they are a lot better than unelected or unaccountable judges ruling on constitutional issues from which there is little recourse. That authority should only be used in the clearest and most egregious of violations. Certainly allowing some judge to make these public policy decisions is to undermine the greatest document in support of freedom ever written.

The length of your argument betrays its' failings. If the case you are making truly does relate to constitutional issues, you would have been able to make it in short order, much like the constitution itself.

I trust you will rethink this. Your sense of right and wrong and your compassion should not only include gays, but should extend to the very system which insures that our basic rights are inviolate. Your approach will create an uneven, chaotic application of the law, having the practical effect of denying us the freedom and the protection the law affords us when it is evenly applied.

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