The Unlikely Lawyer Who’s Defending Gay Marriage

Supreme Court Justice Antonin Scalia had an interesting exchange yesterday with gay marriage defender Ted Olson on when homosexual marriage was outlawed. Olson could not answer the question.

Who is Ted Olson, and why is he defending gay marriage before the highest court in the land?

Olson wrote the cover story for the now defunct Newsweek magazine with the title “The Conservative Case for Gay Marriage.” You may remember Ted Olson as an Assistant Attorney General (Office of Legal Counsel) in the Reagan administration. While serving in the Reagan administration, Olson defended the President during the Iran-Contra affair. Olson successfully represented George W. Bush in the Supreme Court case Bush v. Gore in the highly contested 2000 Presidential election.

He was married to fellow-conservative author Barbara Olson who was a passenger on the hijacked American Airlines Flight 77 that crashed into the Pentagon on September 11, 2001.

In 2009, Olson joined with David Boies to bring the federal lawsuit Perry v. Schwarzenegger in an attempt to overturn Proposition 8, the California state constitutional amendment that bans same-sex marriage. Boies was Olson’s adversary in Bush v. Gore. So with all his conservative credentials, Olson is using his legal talents to push for homosexual marriage. He claims that his support “rests on a lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, and on [his] rejection of what [he sees] as superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights.”

Olson’s system of morality is based on observing what people do. If enough people engage in certain behavior, then that behavior is determined to be normative.

I would love to hear a Supreme Justice ask someone like Olson this question: “What makes something right or wrong, moral or immoral in the ultimate sense?”

Because Olson does not have a moral place to stand outside himself and his observations of what people do, he has succumbed to the belief that what people do in concert has moral legitimacy.

Olson tipped his hand a few years ago when he defended “under God” in the Pledge of Allegiance by declaring that the phrase has no religious meaning. “Olson argued that the phrase is viewed as an ‘acknowledgment’ of religion’s role in the lives of America’s founders.”1 It’s not that our nation is actually under the sovereign rule of God, but only that people once believed that it was. Olson’s argument is common:

Many pledge proponents offer secular justifications to fit Supreme Court rulings. They claim “under God” isn’t any sort of religious exercise or prayer but simply a factual acknowledgment of the nation’s past heritage of faith, for patriotic rather than religious reasons.2

If this is true, then why not have the Pledge read, “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, which people used to believe was one nation under God, indivisible, with liberty and justice for all.” As we’ll see, Olson wants to keep God out of the picture when evaluating sexual behavior.

Olson builds his case for homosexual marriage by an appeal to the Declaration of Independence:

“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.”

Olson wants the right of homosexuals to “pursue happiness” but without the moral restrictions of the Creator who sets the limits of what a person chooses that makes him happy. All types of behaviors make people happy. Just because a person pursues that happy behavior does not make that behavior morally acceptable in the sight of God.

In the same Declaration, God is said to be “the Supreme Judge of the World.” He is not a judge in the abstract. The signers believed that God judged in particular ways. They understood that you can’t have “unalienable rights” without a Creator, and you can’t make a moral statement against civil tyranny without a Supreme Judge. The same is true of other behaviors.

Olson objects to any appeal to religion as a prohibition against homosexual marriage. “I understand, but reject, certain religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural; and I take strong exception to those who argue that same-sex relationships should be discouraged by society and law.” There you have it. Once you get rid of “religious teachings,” as Arthur Leff has stated, “everything is up for grabs.”3

  1. Richard Willing, “High court grills Pledge plaintiff,” USA Today (March 25, 2004), 3A []
  2. Richard N. Ostling, “Pledge ‘under God’ battle makes for unusual alliances,” The Atlanta Journal-Constitution (March 13, 2004), B5. []
  3. Arthur Allen Leff, “Unspeakable Ethics, Unnatural Law,” Duke Law Journal, 1979:6 (December 1979), 1249. []