Will Rationality Reign?

In a column in this week's Newsweek, Ted Olson, the conservative lawyer who, along with David Boies, is leading a suit brought in the federal court (ninth circuit) to overturn Proposition 8 on the grounds it violates the 14th Amendment to the Constitution.

In this piece, Boies does what few on either side of the issue have done: eliminate emotion and fear-mongering and name-calling and focus strictly on rationality and legal precedent. He even uses an argument that I have been pushing for years, comparing sexuality to handedness.Read the whole piece, but here are a few highlights:

"Subsequent laws and court decisions have made clear that equality under the law extends to persons of all races, religions, and places of origin. What better way to make this national aspiration complete than to apply the same protection to men and women who differ from others only on the basis of their sexual orientation? I cannot think of a single reason—and have not heard one since I undertook this venture—for continued discrimination against decent, hardworking members of our society on that basis."

"The second argument I often hear is that traditional marriage furthers the state's interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?" (This is another point I've made to opponents of marriage equality when they say, "every child deserves a mother and a father." I ask them, how does denying marriage equality increase or decrease the number of children growing up on mother/father homes? No one has had an answer -- because there isn't one.)

"(W)hile our Constitution guarantees the freedom to exercise our individual religious convictions, it equally prohibits us from forcing our beliefs on others. I do not believe that our society can ever live up to the promise of equality, and the fundamental rights to life, liberty, and the pursuit of happiness, until we stop invidious discrimination on the basis of sexual orientation."

"If all citizens have a constitutional right to marry, if state laws that withdraw legal protections of gays and lesbians as a class are unconstitutional, and if private, intimate sexual conduct between persons of the same sex is protected by the Constitution, there is very little left on which opponents of same-sex marriage can rely. As Justice Antonin Scalia, who dissented in the Lawrence case, pointed out, "[W]hat [remaining] justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution'?" He is right, of course. One might agree or not with these decisions, but even Justice Scalia has acknowledged that they lead in only one direction."

The case begins tomorrow. Let's hope the justices are as rational (and as committed to the Constitution's requirement for equal treatment under the law) as Mr. Olson is.