The Catholic Thing
The Odd Couple: Dick Cheney and Ted Olson Print E-mail
By Hadley Arkes   
Monday, 08 June 2009

Within the space of a week, two notable figures on the conservative side in our politics have come out in favor of same-sex marriage. In the case of Dick Cheney, the former vice-president, his daughter Mary had long been known as a lesbian, and Cheney was free now, out of office, to speak words on the side of his daughter.

The bigger jolt came with the announcement of Theodore Olson, the former Solicitor General under Bush II. Olson is one of the premier figures in the conservative legal establishment, an icon of the Federalist Society – and my own political friend. But with a public flourish Olson accepted a commission to challenge yet again Proposition 8 in California, this time in the venue that he calls home: the federal courts.

One important gay activist, William Eskridge at Yale, has argued that Olson’s sudden appearance on this side is improvident: A premature push to the Supreme Court runs the risk of seeing same-sex marriage rejected and the cause set back. But Eskridge may be missing the larger gain for his side in Olson’s move. When Olson is added to Dick Cheney, it becomes clear that an important segment of the Republicans is prepared to lead the party into an acceptance of gay marriage.

Olson’s defection marks the most serious split, the beginning of a fissure in the Federalist Society. For there are many of us in the Society who will not be led in this way. Olson’s sally makes all too clear the libertarian strain that has always been there, even dominant, in the circles that do “conservative jurisprudence.” And it may reveal, more showily now, the little secret that has been decorously set aside – namely, that this “conservative jurisprudence” has not quite been able to explain the moral ground of its jurisprudence or even its position on “federalism.”

When it comes to abortion, this jurisprudence does not take as it central concern the killing of 1.2 million innocent lives. It takes, rather, as its prime concern the removal of this subject from the voters in the states. In Ted Olson’s construction now, the denial of marriage to couples of the same sex would seem to be a matter far more urgent, which truly deserves the protection of the Constitution in the way that the killing of children in the womb does not.

Olson’s move into a federal court breaks away then from the most common mantra among the Federalists: “Activist judges” have been all too quick to drape the liberal agenda with the mantle of “constitutional rights.” In that way, they remove questions of moral consequence from the political arena, where ordinary people make laws for themselves. The people in California have amended their constitution in order to preserve marriage as the union of a man and a woman. And Ted Olson is willing to move into a federal court to argue that this understanding of marriage, as old as the laws themselves, denies the “equal protection of the laws” to couples of the same sex who love one another.

By that “explanation,” of course, there would be a denial of Equal Protection when the law refuses to honor the marriage of a mother and son, father and daughter – or for that matter now, father and son, who wish to marry, to say nothing of the polygamous, who are staging a comeback in parts of the Southwest. What exactly is the principle that denies marriage to these people who profess their love? That is something that Mr. Olson, with his considerable wit, will explain later with reasoning more refined.

But Olson has now rejected the most important argument offered by people in the Federalist Society who have opposed a Federal Marriage Amendment to protect traditional marriage. They have insisted, in the spirit of federalism, that marriage is a traditional responsibility of local law and should be left in the domain of the states. That was the position taken now by Dick Cheney. Does that mean that he would block out the intervention of the federal courts, striking down the laws of marriage in the states?

But in a trick of the eye, people somehow forget that the federal courts are part of the federal government. It was the intervention of the federal courts that converted abortion into a constitutional right and made abortion into a central, poisonous issue in our national politics. Ted Olson, asked about Cheney, remarked that he had been speaking as a political man, without a firm sense of the constitutional dimensions of the issue. In Olson’s construal, Cheney could not have fully understood what he was saying, for there is no way that the issue of marriage can be confined now to the states. Anyone who goes into a federal court to challenge the laws on marriage will take the matter out of the jurisdiction of the states.

Without quite planning it, Olson has rejected, as untenable, the favorite argument offered by the libertarian Federalists. He has made it clear, as Robert George, Robert Bork, and I have argued, that marriage can be preserved only with a federal constitutional amendment. Olson and we are now agreed on the cast of the problem. What remains is to argue about the substance of the issue – just which understanding of marriage must be protected now by the fundamental law?

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

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Comments (8)Add Comment
Judicial Morality?
written by Willie, June 09, 2009
My! What next? I am sure both of these men have their reasons for raising same sex unions to the dignity of marriage. These unions once relegated to the category of sodomy are now in these times to be held sacred? Same sex unions of some sort have existed since the beginning of time, but never was procreation, one of the clear reasons for marriage, ever possible in a same sex union. So what is the reason for disagreement with these two fine men? The Creator, no longer a part of jurisprudence.
written by W.W., June 09, 2009
To be frank, the ground was prepared for this course of events just as much by Bush's relentless emphasis on "freedom" as the preeminent American value, as it was by anything the Democratic party has done. Somewhat suprisingly, therefore, it would not be out of the question to suggest that, at least in some ways, the Republican Party is just as radically modern as the Democratic Party.
Libertarian? Not so!
written by Keith Toepfer, June 09, 2009
I must respecfully disagree with Prof. Arkes' characterization of support of same-sex marriage as "libertarian." It is only so if one has decided that marriage is a civil right, which I would assert it is not. Marriage is pre-political. Marriage is a privilege. The confusion arises from the actions of government to inaptly conflate civil benefits (tax laws, etc.) with marital status. Remove the conflation and the argument in favor of same-sex marriage evaporates.
The Teacher
written by Linda Wolpert Smith, June 09, 2009
Would Prof. Arkes consider a tutorial for non-philosophers who must confront those who in all good faith believe that freedom requires that two men or two women may marry? I have tried the argument from common sense; also from that of public health concerns regarding both heterosexual promiscuity and homosexual practices. These have been rejected.
written by Jonathan, June 09, 2009
W.W., freedom is a wonderful thing. Just because some people have defined it wrongly does not mean that those who have spoken in favor of it are in the wrong. You might as well say that George Washington and Abraham Lincoln paved the way for same-sex "marriage." And it would be unwise to make that concession so quickly and willingly.
written by Jennifer Morse, June 10, 2009
Linda Wolpert Smith. come visit us at the Ruth Institute, we work on this very question all the time. True, many are not persuaded, but good arguments do exist. Be not afraid!
written by John Fouad Hanna, June 12, 2009
I too dissent from the view that same-sex marriage (SSM) is libertarian. Marriage as it is reasonably and historically defined does not impinge on anyone's conduct. SSM takes what are now relationships outside the purview of government authority and interference and demands the state's regulation and involvement. SSM further seeks approval of personal conduct through legislation, along with the state's enforcement of such approval. Such demands are not libertarian.
father of eight
written by Dave Brandt, June 29, 2009
Thank you for this commentary. It well defines both the legal dilemna, and the likely impact of Ted Olson's involvement on the wrong side of this moral/legal issue. What will soon be more evident is the seriously compromised position of much of the church of Jesus Christ

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