Althouse: "I thought, why wouldn’t I take this case? Because someone at the Federalist Society thinks I’d be making bad law? I wouldn’t be making bad law."

August 19, 2009

"I thought, why wouldn’t I take this case? Because someone at the Federalist Society thinks I’d be making bad law? I wouldn’t be making bad law."

Ted Olson.

44 comments:

Chase said...: Ted Olsen is a good man.

On this issue, he's just plain wrong.; 8/19/09, 10:03 AM
Triangle Man said...: Ted Olsen is a good man. I'm glad to see he's arguing the right side of this issue.; 8/19/09, 10:06 AM
The Dude said...: What about Ted Olson?; 8/19/09, 10:11 AM
Chase said...: Triangle, good to see we agree on Ted Olsen's character.

But he is arguing the "left" side of the issue.; 8/19/09, 10:11 AM
Scott M said...: I. Don't. Care.

Please take the above statement with the following caveat:

If they are going to allow same-sex marriage, they have to allow three-member marriage or give a reasoned argument on why a man/woman, man/man, woman/woman "marriage" has any more reason to be protected than a man/woman/woman, or woman/man/man, etc.

Frankly, I hope the wheels come off the religious right's control of the conservative movement. There's something to be said for drawing a line in the sand, but in this country, you have to be able to defend that line with more than just sectarian philosophy.; 8/19/09, 10:15 AM
Triangle Man said...: Chase, I'm glad to see we both misspelled his name!; 8/19/09, 10:16 AM
Chase said...: Scott M,

I never argue anyone's religious perspective on this issue. The Federal Courts need to leave it to the states. On that point, many gay leaders actually agree with me.; 8/19/09, 10:18 AM
Chase said...: Triangle Man,

Oooops! (Blush); 8/19/09, 10:19 AM
Triangle Man said...: Chase, States should be able to do whatever they want as long as they do not violate constitutionally protected rights.; 8/19/09, 10:23 AM
Fred4Pres said...: Just because the results are something he thinks are good, does not make this good law. Civics 101 I learned laws are made in legislatures. The trend is for greater expansion and recognition of gay marriage. Ted needs to chill and let democracy happen.; 8/19/09, 10:29 AM
Salamandyr said...: I read it until they got to the "he came up in the Republican party BEFORE those scary religious types took over". This is that the point where the New York Times tries make the "I like blacks, but I hate n****rs" argument in regards to Republicans. It's a bullshit argument.; 8/19/09, 10:35 AM
Triangle Man said...: read it until they got to the "he came up in the Republican party BEFORE those scary religious types took over".

You missed the best part then. His legal theory comes on the next page.; 8/19/09, 10:41 AM
john said...: As opposed to those who think recognizing gays will lead to even more Dore Alley debauchery, I am happy to see a staunch conservative (and a libertarian to boot!) take this on. It is just right.

wv: Jourba. That Irish guy, Quinn, sure could play a Greek, couldn't he?; 8/19/09, 10:45 AM
Joe said...: That article is a prime example of why newspapers are shutting down; it's not the content, but the dreadfully bad writing and sloppy editing. The article meanders all over, using the ostensible subject of the article to grandstand on everything but.; 8/19/09, 10:51 AM
Anonymous said...: Scott,

Couldn't one argue that extending the right to marry -- to enter into a state-sanctioned contract that recognizes and supports an exclusive personal commitment between two people -- might possibly strengthen the institution of marriage, and the secular arguments for supporting it?

I know that the conservative reflex (and this is not necessarily a bad reflex) is to imagine that any change potentially sanctions -- and possibly invites -- all changes. But this doesn't seem to be required. (Did extending marriage rights to mixed race couples require us to redraw the lines against polygamy or incest?) Perhaps extending civil equality reaffirms the nature and the principled limits of that equality.

Of course cultures change in unpredictable ways, and it is understandable to worry about those changes. Perhaps polygamy will gain acceptance. And perhaps, in the past, people worried about the disappearance of polygamy. Still, from a legal point of view, conservatism should worry about equality before the law, regardless of "culture."

"We live in a free society, and freedom means freedom for everybody." -- Dick Cheney; 8/19/09, 10:55 AM
Anonymous said...: The anti-gay side seems to be fueled by hatred and a thirst for violence.

There is no hatred like that on the pro-gay side. Rather there is acceptance.

Hatred and violence are wrong. It's that simple. This doesn't mean that gay marriage should be "legalized", but I do think the deep-seeded hatred should be identified as the prime public motivation behind anti-gay politics.

Oh, you say I over-dramatize?

I was accosted this last weekend, while walking on a public sidewalk listening to my iPod and minding my own business, and called a "fag" and "dick-lover".

And I'm not even gay.

I cringe when considering how much harassment real gay people have to endure.

The thing is, whether you like it or not, the harassment is encouraged by public actors portraying gays to be an "other", a group of people who must be "tolerated" but who will never be "real Americans" like the rest of us.; 8/19/09, 10:57 AM
Invisible Man said...: Triangle, good to see we agree on Ted Olsen's character.

But he is arguing the "left" side of the issue.

That's a mighty revealing statement right there. I mean, we can't have someone arguing the "left" side of an issue. Ideological purity must be enforced.; 8/19/09, 10:59 AM
Scott M said...: @Peter S.

You're assuming that I believe having two wives would somehow weaken the institution of marriage. I do not.

That has nothing to do with my original, unanswered (lo these many years of blogging) point. You cannot call one-man/one-woman arbitrary and bigoted against gays while advocating against polygamy. The only thing different between same-sex/two-sex marriage and polygamy is an arbitrary reaction against the numbers involved that are greater than 2.; 8/19/09, 11:01 AM
chuck b. said...: "The only thing different between same-sex/two-sex marriage and polygamy is an arbitrary reaction against the numbers involved that are greater than 2."

Huh? Polygamy is *better* than same-sex marriage because polygamists can make babies. Isn't marriage supposed to be about making babies?; 8/19/09, 11:15 AM
NotWhoIUsedtoBe said...: DOMA seems unconstitutional to me. It seems to me that this is a state law issue. But what do I know?; 8/19/09, 11:16 AM
David said...: So why does the same reasoning not justify Roe v. Wade.

Answer: it does justify Roe, which is more about the competing powers of the judicial and legislative branches than anything else.

Let the people decide--except when the result is "obvious" to judges and elite lawyers.; 8/19/09, 11:23 AM
BJK said...: The anti-gay side seems to be fueled by hatred and a thirst for violence.

There is no hatred like that on the pro-gay side. Rather there is acceptance.

Apparently, there's also a good deal of condescention on your side. Well, that and the assumption that 'anti-gay' people are full of hatred and violence.

My bottom line is that, absent the biological imperative (actively involved, 2-parent families being the generall-accepted best way to raise the next generation of Americans), there's scant justification for conferring government-derived benefits to non-heterosexual couplings.

There's no hatred or violence attached to this argument (although I will punch you in the jeans if you disagree with me...that's just out of principle).

The issue, as I see it, is that people ascribe the benefits of a religious marriage (an affirmation and validation of one's relationship with their spouse in the eyes of God) with the tangible benefits of legal marriage.

Government doesn't/shouldn't care about 'love.' Its interest in the marriage benefits are limited to subsidizing future generations, and placing them in a position to be successful. Given the collapse of the family structure in many urban communities....it can actually be argued that we are not doing enough to preference heterosexual marriage (relative to the Welfare state).

For that reason alone, I understand why gay marriage is championed by secular conservatives, as well as the majority of the left. If you don't believe in a higher power, the distinction between religious and legal marriage is lost on you.

wv: strandoe -- what deer hunters try to do every November.; 8/19/09, 11:25 AM
Dust Bunny Queen said...: I was accosted this last weekend, while walking on a public sidewalk listening to my iPod and minding my own business, and called a "fag" and "dick-lover".

And I'm not even gay

You must walk funny then. Sorry....couldn't help it. :-D

Seriously, what about the millions of people in California who voted to enact the law? Does Democracy not count? I mean if the law was unconstitutional to begin with, why was it allowed on the ballot? How many times do the people have to voice their desires without having the laws that they voted on overturned by activist courts?

Personally, I have no objection to same sex marriage. I do have objections to the Courts overturning the will of the people.
LOL word verification " pipto " what JRiordin was doing on the street.; 8/19/09, 11:28 AM
Scott M said...: @chuck b.

Huh? Polygamy is *better* than same-sex marriage because polygamists can make babies. Isn't marriage supposed to be about making babies?

I admit that I'm not the brightest bulb in the box, but you lost me...; 8/19/09, 11:28 AM
Joe M. said...: Chase said:
Triangle, good to see we agree on Ted Olsen's character.

But he is arguing the "left" side of the issue.

Invisible Man said:
That's a mighty revealing statement right there. I mean, we can't have someone arguing the "left" side of an issue. Ideological purity must be enforced.

Invisible Man, Chase was making a right/left joke based on this that Triangle Man said:
Ted Olsen is a good man. I'm glad to see he's arguing the right side of this issue. (emphasis added); 8/19/09, 11:48 AM
Anonymous said...: @ Scott:

"You cannot call one-man/one-woman arbitrary and bigoted against gays while advocating against polygamy. The only thing different between same-sex/two-sex marriage and polygamy is an arbitrary reaction against the numbers involved that are greater than 2."

Well put.

I assumed that you were using the slippery-slope argument that, If we call Rule A arbitrary, then we will lose our ability to call Rules B, C, and D non-arbitrary; therefore, we must hold fast to Rule A.

But you seem to be saying that the anti-polygamy rule is already suspect -- can already be challenged and requires a defense. Perhaps it is already, prima facie, arbitrary and potentially unfair. Or at least there is no clear argument out there why we shouldn't allow it. (Am I getting you right?)

If that is the case, however, then the issue of same-sex marriage (the question of gender) has little bearing on the issue of multiple-partner marriage (the question of number). If our rules against polygamy are arbitrary and bigoted, then they are so regardless of where we stand on gay marriage.

Therefore, accepting gay marriage does not force the issue of polygamous marriage in any substantive way. The issue, as you seem to note, can already be forced.

So here's how I see it. At the very least, allowing equality for same-sex marriage does not require you to accept polygamous marriage. But it doesn't save you from having to answer the question of why polygamous marriages are forbidden.

At the same time, however, being against same-sex marriage doesn't save you from the polygamy question either. If laws against polygamy require a non-arbitrary defense, then that defense is required even if gay marriage is everywhere and always illegal.

The two are conceptually -- and, I think, practically - separable.

... or maybe the government should just get out of the entire marriage business.

Best, Peter; 8/19/09, 11:49 AM
Joe M. said...: This comment has been removed by the author.; 8/19/09, 11:58 AM
Dave said...: 'Isn't marriage supposed to be about making babies?"

Well, no. Marriages are an expression of love and commitment between two people. Babies may or may not be involved in that expression. Are Ann and Meade going to have babies?

"Seriously, what about the millions of people in California who voted to enact the law? Does Democracy not count? I mean if the law was unconstitutional to begin with, why was it allowed on the ballot? "

Whether a law (or initiative) is unconstitutional is something that gets decided in the court system.; 8/19/09, 12:10 PM
chuck b. said...: My 11:15 was a ham-handed, ineffective use of irony to attack the frequently stated position that marriage is for procreation. If that position was correct, then people who aren't going to have children should have no use for marriage. There is a difference between same-sex marriage and polygamy (assuming it possesses some component of heterosexuality): one can procreate on its own, the other cannot. So if marriage is for procreation, polygamy is more defensible than SSM.; 8/19/09, 12:47 PM
Ann Althouse said...: "DOMA seems unconstitutional to me. It seems to me that this is a state law issue. But what do I know?"

DOMA defines marriage for federal purposes, like the tax laws and it empowers states to apply their own laws without recognizing same-sex marriages from other states. The latter is the federal role in protecting the states control of a state law issue. The former is constitutional for the same reason that tax and other federal programs are constitutional -- as far as providing an enumerated power for Congress. It's a separate question whether rights are violated -- notably equal protection.; 8/19/09, 2:00 PM
Anonymous said...: I assumed that you were using the slippery-slope argument that, If we call Rule A arbitrary, then we will lose our ability to call Rules B, C, and D non-arbitrary; therefore, we must hold fast to Rule A.

You haven't quite got it. Try: Principle Z, which implies that Rule A is arbitrary, also implies that rules B, C, and D are arbitrary. Since we know full well (the argument goes) that B, C, and D are not arbitary, there must be something wrong with Principle Z-- leaving you (for the moment at least) without an argument for the arbitrariness of Rule A.; 8/19/09, 3:08 PM
Scott M said...: @Peter S.

But you seem to be saying that the anti-polygamy rule is already suspect -- can already be challenged and requires a defense. Perhaps it is already, prima facie, arbitrary and potentially unfair. Or at least there is no clear argument out there why we shouldn't allow it. (Am I getting you right?)

That is correct. I personally believe that the best arrangement for a family, and by extension society, is to have a mother/father/kids. I know that this is not always true, but the statistics bear out that this is the best arrangement we currently have to predict the success or failure of raising children to adulthood within the civilization we’ve built for ourselves. But that’s merely one man’s opinion, no matter how awesome an unimpeachably correct I personally think I am (lol!).

In the arena of public policy and law, however, you are correct. It is as suspect that there are rules against polygamy as there are against same-sex marriage, at least in terms of the rules being arbitrary. They are. My real problem stems from the intellectual dishonesty of someone that says that our current legal definition of marriage should be opened up to same-sex relationships, but remained closed to polygamists. There is absolutely no good reason for that other than bigotry.

If that is the case, however, then the issue of same-sex marriage (the question of gender) has little bearing on the issue of multiple-partner marriage (the question of number). If our rules against polygamy are arbitrary and bigoted, then they are so regardless of where we stand on gay marriage.

I’m not sure how you can come to this conclusion as neither of the currently verboten arrangements (same-sex/polygamy) exist in a vacuum. In the context of this debate, they are intrinsically intertwined by the mere fact that they are both currently disallowed. Making the argument for one to be allowed, while arguing that the other not. It doesn’t matter which your advocating for, in this case, because you’re shaky ground visa vi accusations of bigotry.

Therefore, accepting gay marriage does not force the issue of polygamous marriage in any substantive way. The issue, as you seem to note, can already be forced.

This issue must be forced if one is going to advocate same-sex marriage on the grounds of equal protection. There’s no reasonable argument why same-sex marriage is more deserving of legal embrace than polygamy.

The two are conceptually -- and, I think, practically - separable.

I don’t believe they can be due to the same point.

... or maybe the government should just get out of the entire marriage business.

EXACTLY! DING DING DING…tell him what he wins, Don Pardo!!!!! - I agree wholeheartedly. The purist libertarian in me just back-flipped.

The word “marriage” is what’s tripping everyone up. As a Lutheran, I’d be just fine with removing every last vestige of the word marriage from the law books and have civil society only be required to allow for civil unions of some capacity in a legal sense…ie, insurance, inheritance, property, custody, etc. If two straight girlfriends grow old into spinsterhood and want to have that union for the legal protection it provides, then great, go for it (just an obtuse example, mind you). However, marriage is a religious rite and always has been since long before men started making long documents telling us what we can and can’t do.; 8/19/09, 3:16 PM
Shanna said...: I have had a soft spot in my heart for Ted Olsen ever since after 9/11 I went to some luncheon that ended up being a memorial for his wife and he was there it was just so. Damn. Sad. I don’t care what he’s arguing, I just want Ted Olsen to have a happy life.; 8/19/09, 3:18 PM
michael farris said...: Scott M,

Your basic point has been addressed many times. Same sex marriage doesn't require any rewriting of existing marriage laws (except for specific references to gender).

Polygamy would require all kinds of rewriting to address issues of how the new partner is added, just who is married to who, how partners can leave the union, questions of seniority, inheritance etc etc etc. _And_ there's no evidence that there are lots of de facto polygamous households out there anyway.

I myself would like to see the traditional European (and LAtin American) custom of only civil weddings performed by the state as having legal status. Then couples could (if they wish) also have religious ceremonies (which would have no legal status).

Technically that's the current system except that as a courtesy the state allows religious figures to perform state civil ceremonies. But that is perhaps too awkward and problematic to continue. It saved on time but it creates too much confusion. Legally you're not married when the minister says "I now pronounce you..." you're married when s/he does the government paperwork.; 8/19/09, 5:07 PM
Ignorance is Bliss said...: Peter S.

I don't think it's a slippery slope from gay marriage to polygamy. I think it's a trap-door with the definition of marriage being the peg that holds it closed. If you pull out the peg to let gay marriage through, everything else will fall through as well.

... or maybe the government should just get out of the entire marriage business.

Works for me.; 8/19/09, 5:10 PM
John Althouse Cohen said...: If they are going to allow same-sex marriage, they have to allow three-member marriage or give a reasoned argument on why a man/woman, man/man, woman/woman "marriage" has any more reason to be protected than a man/woman/woman, or woman/man/man, etc.

Here's the reasoned argument.; 8/19/09, 5:25 PM
Bart DePalma said...: I could understand if Olsen took this case as a hired gun. Attorneys frequently argue law they personally disagree with as law or policy.

However, I share Judge Bork's utter bewilderment that an originalist like Olsen would claim that he personally believes in the legal merits of a position that has no authority in the text of the Constitution on the basis of awfully reasoned Kennedy decisions in Romer and Lawrence where the he rewrote the Constitution to suit his personal policy preferences.; 8/19/09, 5:38 PM
Ignorance is Bliss said...: John Althouse Cohen said...

Here's the reasoned argument.

That's a fine argument to make when the legislature is debating whether or not to legalize gay marriage or polygamy.

However, the Mass. supreme court, and many gay marriage advocates, state that marriage is such a fundamental right that trivial things such as the actual definition of marriage, cannot be allowed to stand it it's way.

If that's the case, then all the technical and legal issues related to polygamy need to get resolved, since any law that is standing in the way of a fundamental right must be unconstitutional.; 8/19/09, 5:41 PM
mccullough said...: The argument that banning same-sex marriage violates the equal protection clause is stronger than the equal protection argument that prevailed in Bush v. Gore.

But Bush v. Gore was wrong (even though Bush won the election and would have won anyway).

When 6 states allow same-sex marriage (5 by judicial fiat), it's tough to say that the Constitution forbids bans on it. Maybe when 40 states allow it (and most of those by laws enacted by legislatures and not declared by judges) the argument would be stronger.

I'm a proponent of same-sex marriage, but Olson's arguments are losers and adhere to a conservative judicial philosophy about as much as Bush v. Gore.; 8/19/09, 6:11 PM
Methadras said...: Ted Olsen is one of the good guys, who's decided to be on the wrong side of the issue. He's going to argue to have the state supreme court, or possibly the SCOTUS to overturn an amendment to the California Constitution which would in effect, in my opinion nullify it. The California State Consitution has been amended over 500 times and I wonder which any of these amendments have been overturned by any court? Anyone?

If the answer is zero, what makes Ted Olsen think that this long and deeply held precedent is going to be ignored in his favor?; 8/19/09, 7:08 PM
NotWhoIUsedtoBe said...: If a court can overturn a constitutional amendment, then what exactly is the check on the court? They can do anything they want.; 8/19/09, 8:54 PM
Anonymous said...: Ted Olson was supposedly on the short list to be on the Supreme Court for Bush pere and fils. It's a good thing he got passed up.; 8/19/09, 9:16 PM
Ignorance is Bliss said...: John Lynch said...

If a court can overturn a constitutional amendment, then what exactly is the check on the court? They can do anything they want.

I believe that he is arguing that the state constitutional amendment violates the federal constitution. That would give the federal courts the authority to overturn the state constitutional amendment.

The state supreme court could not overturn a state constitutional amendment, unless they concluded that the proper process for amending the constitution was not followed.; 8/19/09, 9:21 PM
Methadras said...: Ignorance is Bliss said...

I believe that he is arguing that the state constitutional amendment violates the federal constitution. That would give the federal courts the authority to overturn the state constitutional amendment.

The state supreme court could not overturn a state constitutional amendment, unless they concluded that the proper process for amending the constitution was not followed.

The problem with this is that any federal court will see that The California Supreme Court upheld prop. 8 and now Ted Olsen is going to argue to SCOTUS that they need to overturn it on the grounds that voters cannot impose mandates that violate constitutionally protected rights when none exists explicitly or implied for homosexuals in the California Constitution? Where is it? I've read it and I can't find it anywhere. Is he going to make a 14th amendment argument? Is he going to use Lawerance v. Texas? What? What could he possibly come up with that will compel SCOTUS to do that?

Well, either way I don't wish him luck and I hope he loses. Now we will see the impact of The Wise Latina on the bench.

WV = Mandi = Barry Manilow Song.; 8/20/09, 12:32 AM