Here’s a quick quiz. Who said this?
“Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation’s commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.”
If you guessed this was part of a press release from HRC or Lambda, or a statement by a Democratic Congressman from a really safe district, you’d be wrong. This was from a recent Newsweek column penned by none other than Theodore Olsen, the very conservative former Solicitor General who was also the lead lawyer representing George W. Bush before the Supreme Court in Bush v. Gore.
As readers of this column undoubtedly know, Olsen has teamed with his erstwhile opponent in that lawsuit, David Boies, to challenge the constitutionality of Proposition 8.
When these two formed their unlikely team and announced their decision to challenge the constitutionality of bans on same-sex marriage, I’ll admit I was torn.
On the one hand, these are two of the pre-eminent lawyers in the country—not only can we have confidence that the legal and constitutional arguments will be made forcefully, thoroughly and competently, but there is tremendous value in the symbolism of having such established (and establishment), highly respected legal figures as proponents of equality for same-sex couples. On the other hand, this is a case that is intended to go all the way to the Supreme Court, where victory will be anything but assured and defeat would set back the cause of gay rights for a generation. Even a victory in the Supreme Court would undoubtedly bring backlash, and the predictable howls of the right-wing fringe about “imperial” courts and “unelected judges.”
So I was wary.
But the more I think about it, the less worried I am. First of all, as I have documented in past columns in these pages, the pace at which the culture is changing is breathtaking. It takes a long time for a case to work its way up to the Supreme Court—time during which those changes will continue, and the idea of same-sex marriage will seem less and less remarkable. Already, the popular culture is discounting the arguments against such marriages, particularly the allegation that permitting same-sex marriage will somehow harm “traditional” unions. As Olsen wrote,
“Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.”
Interestingly, pollster extraordinaire Nate Silver has crunched some numbers and come to a conclusion that undercuts assertions that same-sex marriage is detrimental to heterosexual marriage.
”Over the past decade or so, divorce has gradually become more uncommon in the United States. Since 2003, however, the decline in divorce rates has been largely confined to states which have not passed a state constitutional ban on gay marriage. These states saw their divorce rates decrease by an average of 8 percent between 2003 and 2008. States which had passed a same-sex marriage ban as of January 1, 2008, however, saw their divorce rates rise by about 1 percent over the same period.”
It takes time for the conventional wisdom to reflect such data. But if we doubt that conventional wisdom is now on the side of equality, we have one more bit of evidence from the Proposition 8 trial: The witnesses set to testify in defense of Proposition 8 have asked the Court to keep the media out. They claim they will be “endangered” if their identities are known. Really? These people base their defense of Proposition 8 on their assertion that tradition and morality and public opinion are on their side. If that is so, why not speak out publicly? Why not bask in the approval of the public? The only possible answer is: the public’s opinion has changed.
And that is cause for celebration. Hopefully, wedding celebrations.