Ted Olson said the following in his Newseek piece about SSM:
It is true that marriage in this nation traditionally has been regarded as a relationship exclusively between a man and a woman, and many of our nation's multiple religions define marriage in precisely those terms. But while the Supreme Court has always previously considered marriage in that context, the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals.
When defenders of marriage use the phrase, "traditional marriage", they typically mean it as a rhetorical label in public discourse to distinguish marriage from so-called "same-sex marriage". The man-woman basis of marriage is not merely a tradition.
Certainly, there is a vast range of marriage traditions -- including cultural, ethnic, national, and religious traditions. That there are such traditions, and that these vary in time and place, does not negate the universality of a core that has remained the same. These traditions are variations on a common theme.
Also, tradition can and is used in constitutional argument because fundamental rights are deeply rooted in a society. Olson hints of that usage.
Olson attempts to set tradition at odds with the "underlying rights and liberties" accorded the social institution of marriage. However, marriage has a special status for special reason. The core meaning of this social institution is 1) sex integration and 2) responsible procreation 3) combined as a coherent whole. Government, on behalf of society, responds to the societal significance of that core meaning.
Olson would rather change the subject. He wants to use marriage as the means by which to force society to respond to homosexual orientation.
[Click here to read the rest of this blogpost.]
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Olson's Bait and Switch.
To that end, he would marginalize the core meaning of marriage and assert the moral approbation of homosexuality as a much higher priority. This is his way of ensuring special treatment. This ploy by Olson is an attempt to revive the old and disreputed 'tradition' of asserting the supremacy of identity politics.
Neither Olson nor the SSM campaign can claim that licensing of SSM and according it a special status are deeply rooted traditions. The rights and liberties he speaks of are not deeply rooted in the history of an idealized version of 'the homosexual relationship'. SSM barely rates as a new 'tradition' even within the relatively modern context of "gay culture" and "gay community". It is novelty within the openly gay population in which same-sex householding is a marginal practice.
So Olson executes his bait and switch.
His bait: Marriage embodies rights and liberties. His switch: the homosexuality of a subset of nonmarriage merits these underlying rights. Of course, his argumentation portrays SSM as a subset of marriage that is currently excluded on the basis of sexual orientation.
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Contrary to Olson, marriage law does not confine marriage to heterosexual persons -- there is no sexual orientation criterion for eligibility. In contrast, Olson assumes that his 'same-sex' classification is confined to homosexual people. Just showing up for a license to SSM means that the people who want the license are homosexually orientated. (I guess science can stop looking for a homosexual gene and rely on a license to SSM instead.) He assumes that homosexual feelings are the justification for the license and for special status.
He suggests that the Constitution requires public approbation on the basis of sexual orientation, even as he argues that government, on behalf of society, is barred from moral disapprobation on that very basis.
Olson further suggests that the purpose of the SSM-merger is to make Government treat the homosexual person as the equal of the heterosexual person.
Yet, the marriage law already does that.
What the marriage does not do is treat a subset of nonmarriage -- the subset that Olson favors is an idealized version of homosexual relationship -- as the practical, moral, and legal equivalent of marriage.
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The obvious reason for this: the marriage law is interested in marriage, not other stuff. Olson wants to lift SSM out of the nonmarriage category, with no more justification than some asserted government interest in homosexuality, and treat that subset as superior to the rest of that category.
He pointed to the rights and liberties of marriage, but then he switched to special treatment based on homosexuality and not based on that which marriage embodies.
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Previously in this series, "Answering Olson":
Answering Olson's pro-SSM argument."
Favortism is not Equal Treatment.
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Return to "Answering Ted Olson: Updates."
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