Legal Commentary

Ted Olson?s Case for Gay Marriage

By Jonathan H. Adler

Ted Olson explains why he supports gay marriage and has joined with David Boies to file suit to support it.

Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one?s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

I agree with Olson on policy grounds ? as I agree with my co-blogger Dale Carpenter?s ?conservative? arguments for gay marriage ? but I remain deeply skeptical of the constitutional argument.  I am unconvinced the equal protection clause requires states to recognize same-sex marriages, though I believe the federal government should recognize any marriage recognized under state law.  I also think gay marriage will achieve wider acceptance if it is advanced through democratic processes rather than through the courts.  Litigation strategies are appealing, but they also risk a substantial backlash.

Full post as published by The Volokh Conspiracy on January 10, 2010 (boomark / email).