Geof Stone on the Conservative Case for Same-Sex Marriage

The Conservative Case for Gay Marriage: Let Me Get This Straight
Geoffrey R. Stone
The Huffington Post
January 13, 2010

In the cover story of the most recent issue of Newsweek, Ted Olson, who along with David Boies is litigating a potentially landmark challenge to the constitutionality of California's Proposition 8, makes what he describes as "The Conservative Case for Gay Marriage." Olson makes an eloquent and compelling case against the constitutionality of state prohibitions of same-sex marriage.

Olson notes that his involvement in the litigation "has generated a certain degree of consternation among conservatives." He finds this puzzling. Indeed, he insists that the conservative opposition to same-sex marriage "does not make sense, because same-sex unions promote the values conservatives prize." Indeed, given their most fundamental values, he explains, conservatives should "celebrate" the desire of two individuals to form "a union based on shared aspirations." Moreover, legalizing same-sex marriage would further "basic American principles" and "represent the culmination of our nation's commitment to equal rights." Our historic dedication to the "principle of equality," he asserts, is central not only to Democrats and liberals, but also to Republicans and conservatives.

Olson is a brilliant lawyer. He offers a logically unimpeachable case for his position. But what he makes is the liberal case for gay marriage, or perhaps (as he suggests) the American case for gay marriage, but not -- unfortunately -- the conservative case for gay marriage. The plain and simple fact is that conservatives do not believe in what Olson identifies as our "bedrock" American values. And therein lies his problem.

Faculty: 
Geoffrey R. Stone

Comments

Olsen off base

I agree with Geoffrey Stone that Ted Olsen is totally off base in his argument that gay marriage is a constitutionally required freedom. Throughout American history marriage is always been created and governed by state law. Five states, mostly in New England, have passed statutes creating gay marriages. But in other states gay marriage is not recognized. These are state questions, not federal constitutional ones, which is also true of adoption law and many other family-oriented issues.

Roger C. Cramton, Stevens Professor of Law Emeritus, Cornell Law School; University of Chicago, Law School, J.D., 1955 and faculty member, 1958-1961.