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?
