The Marrying Kind

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.


  1. Professor Kennedy,

    I agree that gay marriage is the last major civil rights milestone yet to be surpassed and I hope is this case if eventually decided by the U.S. Supreme Court gets a 5 to 4 decison to overturn Proposition 8 and not a 5-4 decision as in the case decided in Bush v Gore decided wrongfully against Vice President Gore!!

  2. Sheila,

    Where do you stand with respect to “Domestic Partner” affidavits–the Indiana University (your system?) offers Domestic Partner status for health care BUT restricts this status to only “same-sex” couples.

    How did “marriage” become a requirement for recognition of a life partner. I’ve been in a heterosexual relationship for 3 years (IU requires domestic partners to be in a committed union for 6 months). My partner and I are ambivalent about marriage as an institution but health care almost twists our arm into doing so.

    Because IU has a restrictive domestic partner policy (going so far as to require the applicants to pledge that they WOULD get married if only Indiana would allow it) I cannot get health insurance under my partner’s plan.

    It is an irony that this policy discriminates against us. We may be able to be married, but we choose not to. Why should this bar us from a legal recognition of our partnership?

    thanks for your thoughts!

  3. I understand your point of view–and your situation is yet another reason that we need national healthcare. Our ability to obtain health insurance should not depend upon our marital status. That said, IU and other institutions are trying to redress an injustice–a legal category that makes it impossible for gays and lesbians to provide health benefits to their partners in most situations. Hence the imposition of the “but for” test.

    When you come to the issue of “legal recognition,” it gets thornier. That’s what civil marriage IS–recognition by the state of your partnership, for the purpose of awarding certain legal benefits. The state does not and cannot sanctify a relationship; that’s left to churches, synagogues, mosques, etc. If Americans understood that “marriage” is an exclusively religious state, and that what we call legal marriage is essentially a civil union, or a recognition by the government of a contractual commitment, many of these issues would go away.

  4. Hi, Dr. Kennedy,

    Thanks for the response.

    Here’s where I see an apparent contradiction–the organization providing health benefits–be it IU or any other institution, corporation, society, etc.–is in a sense declaring the employer a “partner”–and enacting an economic union. Once declaring that the institution can decide to confer benefits of that partnership (I wanted to call it paternalism–but it’s less “loving” than that!) to the family of the partner. This is determining to become a kind of protectorate.

    How does the organization benefit from the further legal action of requiring marriage if it can just as easily determine via economic documents the reality of a domestic partnership?

    Finally, if it’s willing to offer this status to two individuals who are unmarried why is it not willing to offer it to other similar partnerships? It’s a CHOICE the university to keep this affidavit narrow. HOW does the choice to not extend the benefit to other partners prove beneficial?

    I worked at a large science society–notoriously and extremely republican and conservative to its core–their partner recognition was for ALL domestic partners–not just same sex. So that bastion of conservatism is more liberal than a liberal university system.

    Are there actions to take to influence a change–is a letter to the editor the best one could do?

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