I am sad to report that Ted Olson is no longer worth listening to on legal matters or worth hiring by anyone who respects the Constitution. In his quest to legalize gay “marriage,” Olson is heading the challenge in court to California’s Proposition 8, passed in 2008 by the people of California to disallow state recognition of such “marriage.”
This is not an indictment of Olson as a person – he is an unfailingly nice and upstanding human being by all accounts. But, I cannot trust the legal judgment of a fellow who claims to be conservative and yet who clearly believes the Constitution should be used by the Judiciary to invalidate the will of the people based on a protection that does not exist in the Constitution. THAT is the definition of judicial activism – not what Mr. Olson weakly claimed on Fox News Sunday yesterday, that “most people use the term judicial activism to explain decisions that they don’t like.”
That simply is not true. At all. And it’s disingenuous for him to claim he is not advocating for judicial activism to achieve his preferred policy outcome.
There is absolutely zero evidence that the people who drafted and ratified the 13th, 14th and 15th Amendments to the Constitution intended to prohibit the people of the United States from being able to recognize though the democratic process what marriage is – a union of a man and a woman. To say otherwise is to advocate for the very kind of activism that conservatives have always rightly decried. But Olson continues, “[i]t’s not judicial activism when judges do what the Constitution requires them to do and they follow the precedent of previous decisions of the Supreme Court.”
For what issue could this not be a defense against judicial activism? Were not the 9 holier-than-thous on the Court “doing what the Constitution requires them to do” (in their minds) when they protected a supposed privacy right for women to “choose,” serving as the basis for the senseless murder of over 50 million babies since 1973?
But it’s worse than that. Olson employs the same kind of extra-constitutional rhetoric in his defense of gay “marriage” as that espoused by Justice Anthony Kennedy to justify the Court-created “right” to kill the unborn. Justice Antonin Scalia aptly ridiculed Kennedy when he described Kennedy’s “sweet-mysteries-of-life-passage” when it was seemingly invoked by the Court to tell Texas that sodomy also is a protected right. In a January op-ed advocating for gay “marriage,” Olson said a number of things like “[a]t its best, [marriage] is a stable bond between two individuals who work to create a loving household and a social and economic partnership.”
That is a true statement. But, so what? I don’t care if marriage is an absurd, archaic institution not worthy of furtherance – because, either way, it has nothing to do with the Constitution.
Olson claims that California “has no rational basis for continuing this discrimination.” Really? No rational basis? Who made you King, Mr. Olson? Because it seems to me that we human beings may well have more than a “rational basis” to recognize marriage as it has been recognized around the world for literally thousands of years – the union of a man and a woman. For reasons of pro-creation and parenthood, to start with, but also for reasons of faith and morality, for some of us, any marriage other than such a union can never be, whatever society says, a “marriage” at all.
Mr. Olson hides behind – as any good activist does – the issue of race to use the Constitution for a larger social purpose and to achieve own policy objective. Olson invokes Loving v. Virginia, which was the case ending racial discrimination in marriage laws, to say that gays should be allowed to marry. If you believe that, then you believe that the 14th Amendment means anything. The 13th, 14th, and 15th Amendments were specifically designed to deal with racism and the prohibition thereof. In Loving, the Court said that if any [discriminatory laws] “are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.” Right. The case had nothing to do with allowing homosexuals to marry.
Gay “marriage” is not the preferred policy choice of most Americans – and, even, a majority of Californians. Yet Olson wants some judges to use the Constitution to mandate a false notion of equality that will amount to the biggest breach of societal stability in the history of mankind.
Thank you, Mr. Olson for making clear that it often has been “conservatives” that have done as much damage to the Constitution as leftists over the years. After all, all 5 of the Justices who upheld the “right” to kill babies in Planned Parenthood v. Casey were appointed by Republicans.