In his Newsweek article, Ted Olson argued that the California Marriage Amendment is an example of unjust discrimination that goes against the US Constitution.
However, he acknowledged that marriage has a special status in our society and in our laws:
It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state's support and benefits. The California Supreme Court described marriage as a "union unreservedly approved and favored by the community." Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.
Clearly society discriminates between marriage and other types of relationships and arrangements that are not marriage. Simply put: Marital status is withheld from nonmarriage.
The CA Supreme Court offered a vague description of marriage. [More on that later.] The state court's majority pro-SSM opinion failed to put a finger on the special reason that justifies the special status of marriage. Without that, this status does not make much sense and it becomes exceedingly hard, if not impossible, to justify it in the first place.
Supporters of gay union (aka 'same-sex marriage' or SSM) skip attempts to justify the special status of marriage. Many deny that marriage is special. But Olson clearly said that marriage gets special treatment. He is among those who make a very feeble "Why not me too?" type of complaint.
Instead of Olson's preferred question, 'why not treat gay union as marriage?' the baseline question is 'why treat marriage as special?'
[Click here to read the rest of this blogpost.]
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What's So Special About Marriage?
That is to say, why does this special status exist? From what does it arise? What big problem(s) does it attempt to solve for society? Why is this type of relationship privileged and respected and entitled to support and benefits? What is the societal significance of the relationship for which official sanction is merited? Would it still be special even if the government was not in the business of licensing it?
What are the powerful social justifications for this preferential status we have accorded this thing called marriage?
Olson does not explain how marriage is different from other stuff -- before the government gets involved. He merely asserts that the government's involvement is the place to start. He is wrong.
Where to Start?
The place to start is with the essentials of marriage itself. It has a core meaning and it is this core which differentiates marriage from other stuff. If that core has great societal significance, then, it may merit special attention from government -- on behalf of society. [See footnote.]
But Olson is typical of those who argue for SSM. He assumes that the license and the special status that follows that license self-justify. They exist and therefore they ought to exist. He assumes, in argument, that it is the license that makes marriage special; that it is the government's privileges and benefits that give marriage its reason for existing.
However, during opening arguments in the Prop-8 trial Olson conceded that one valid solution is for government to abolish marital status. He further conceded that society would probably not permit government to do that.
But these concessions, in his own words, place his stated standard (as quoted above) on a magic carpet, hovering in the air, without any visible means of support.
What Is So Special About Gay Union?
Since Olson is asserting that gay union is 1) gay and 2) a type of relationship, then, it is up to him to provide the powerful justifications for giving it a special status of any sort. It is up to him to show how those justifications, if they exist, set gay union apart from the broad range of relationship types and arrangements that exist within the large nonmarriage category. Until he does that, gay union can not be seen as different from the rest of nonmarriage.
That category is different from marriage. The license merely makes that official so as to clarify who has and has not entered the social institution.
Olson insists that nonmarriage is also different from gay union because, he asserts, gay union is the same as marriage. He has to prove this. He has to be able to show that what makes gay union different from other stuff is the same thing that makes marriage different from other stuff. And that marriage is not different from gay union.
Olson assumes, for his argument, that marriage includes gay union -- as a subset of marriage -- and that the CA marriage amendment has withdrawn access to the institution on the basis of sexual orientation.
More on that shortly.
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The core meaning of marriage is 1) sex integration (see the man-woman legal requirement), 2) provision for responsible procreation (see the legal marital presumption of paternity), and 3) these two items, at least, combined as a coherent whole (i.e. a foundational social institution of civil society).
For more on this core meaning see the tags on the rightmost column of our homepage.
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