I’d heard the other day that one of the main lawyers involved in the court case to overturn the gay marriage ban in California was a conservative Republican.
Today, the Sydney Morning Herald has published an article by him. It is truly wonderful to see someone from the right wing of politics argue this way:
My involvement in a case to invalidate Proposition 8 – California’s voter-approved measure to overturn the right to marry a person of the same sex – has generated a certain degree of consternation among conservatives. How could a lifelong Republican, a veteran of the Ronald Reagan and George Bush jnr administrations, challenge the ”traditional” definition of marriage?
Many of my fellow conservatives have an almost knee-jerk hostility towards gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. At its best, marriage is a stable bond between two people who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make provide benefits to themselves, their families and communities. Marriage requires thinking beyond one’s own needs. It establishes a formal investment in the wellbeing of society. The fact individuals who happen to be gay want to share in this social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
The dream that became America began with words that are among the most noble and elegant ever written: ”We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
It has taken a long time to live up to the promise of equality. In 1857, the Supreme Court held that an African-American could not be a citizen. After the ensuing Civil War, to make the elusive promise of equality a reality, the 14th amendment to the constitution added the command that ”no state shall deprive any person of life, liberty or property, without due process of law; nor deny to any person the equal protection of the laws”.
What better way to make this national aspiration complete than to apply the same protection to men and women who differ from others only on the basis of their sexual orientation? I cannot think of one reason – and have not heard one since I undertook this venture – for continued discrimination against decent, hardworking members of our society on that basis.
Marriage is an expression of our desire to create a partnership, to live and share life’s joys and burdens with the person we love, and to form a lasting bond and a social identity. 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.
Traditionally, it has been regarded as a relationship exclusively between a man and a woman, but the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals. Marriage is a civil bond as well as, in some cases, a religious sacrament. It is a relationship recognised by governments as providing a privileged and respected status, entitled to the state’s support and benefits.
What, then, are the justifications for California’s decision to withdraw access to the institution of marriage for some citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.
The explanation mentioned most often is tradition. But just because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors’ prisons.
The second argument I often hear is that traditional marriage furthers the state’s interest in procreation – and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal.
But preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. It will not discourage heterosexuals from marrying a person of the opposite sex. We do not inquire whether heterosexual couples intend to bear children before allowing them to marry. And we would surely not accept a ban on marriage to discourage procreation. Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.
There is no good reason to deny marriage to same-sex partners, but many reasons to formally recognise these relationships.
No matter what you think of homosexuality, gays and lesbians are members of our families, clubs, and workplaces. They are our doctors, our teachers, our soldiers (whether we admit it or not), and our friends. They yearn for acceptance, stable relationships, and success in their lives, just like the rest of us.
When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also saying that their relationships are less worthy, less legitimate, less permanent, and less valued. I cannot imagine how that benefits society. And I take strong exception to those who argue that same-sex relationships should be discouraged by society and law. Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual.
Reactions to our lawsuit have reinforced for me these essential truths. I have certainly heard anger, resentment, and hostility, and words like ”betrayal” and other pointedly graphic criticism.
But mostly I have been overwhelmed by expressions of gratitude and goodwill from persons in all walks of life. I have no doubt that we are on the right side of this battle, the right side of the law, and the right side of history.
Some have suggested that we have brought this case too soon, and that neither the country nor the courts are ”ready” to tackle this issue and remove this stigma. Citizens who have been denied equality are invariably told to ”wait their turn” and to ”be patient.” Yet veterans of past civil rights battles found that it was the act of insisting on equal rights that ultimately sped acceptance of those rights.
Theodore Olson is the lead lawyer for the plaintiffs in Perry v Schwarzenegger, now being heard in a federal court in San Francisco. This is an edited extract of an essay that first appeared in Newsweek.