Monday, January 11, 2010

Marriage Argued

In the context of a new legal challenge to California's proposition 8, Ted Olson has written "the conservative case for gay marriage," which reads with a forehead-smacking clarity:

The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.
If you need more than that passage to accept Olson's argument, there is plenty more at the source. It is eloquent, straightforward, twaddle-free, and in every respect the sort of thing that could, if modeled and applied to public policy questions beyond gay marriage, almost restore the name of conservatism from its louder, more numerous contemporary exponents. Almost.

Counter-arguments, suitably dressed up in legalese, are inevitable, and the smart money says the federal courts will uphold the 2010's version of "separate-but-equal" and keep gay people drinking from their own fountains. I wince even thinking of the needle-threading legal, moral, and political casuistry that may establish lasting precedents against equality in marriage, but I sincerely hope the smart money is wrong.


Michael Ejercito said...

Currently, U.S. constitutional case law is silent on the issue of whether or not same-sex couples are entitled to any benefits that married couples have.

Separate but equal (which means that same-sex couples have the same legal benefits as married couples and states reserve the power to create a separate, albeit nominal, classification for same-sex couples) would actually give more legal protection to same-sex couples than what they currently have.

Dale said...

Michael E, if you're making the point that states vary in the legal goods they're willing to grant to same-sex unions, you're right. Nearly all of the states won't let them call it marriage, and not many more will allow them to enter into something like a civil union.

This page has a map outlining the various state-level protections:

If you're making the further point that it would be great for the federal courts to insist that all states grant full legal equality to everyone, even the gay ones the majority tends to consider icky, then I agree.

My dread -- alas, my realistic expectation -- is that the federal courts as they exist today will eventually land in a bad place. That is, they'll decide that it's Constitutional for states to treat same-sex unions as inherently lesser, deserving of fewer protections or indeed none.