Ted Olson obviously is a very good lawyer. In the past, that very good lawyer — and his allegiance to conservative values — has been viewed by liberals as the devil incarnate because of his role in winning Bush v. Gore.
Now that very good lawyer, along with David Boies, has pulled off a major coup in obtaining a ruling from a Judge who did not need much convincing, that there is a federal constitutional right to gay marriage, thereby invalidating California Prop. 8.
The video of Olson being interviewed by Chris Wallace (embedded below) has brought cheers for Olson because of lines such as “Well, would you like your right to free speech — would you like Fox’s right to free press put up to a vote ….”
There is a logical flaw, however, in Olson’s primary legal argument that the Judge merely followed Supreme Court precedent on the issue of marriage (emphasis mine):
As a matter of fact, since 1888 the United States Supreme Court has 14 times decided and articulated that the right to marriage is a fundamental right. We’re not talking about a new right here.
We’re talking about whether a fundamental right, something that the Supreme Court has characterized as the most fundamental relationship we have in this country, can be deprived of certain individuals because of the color of their skin or because of their sexual orientation.
The problem with this argument is that the marriages the Supreme Court has addressed in the past were marriages between one man and one woman, which the Court — in Olson’s characterization — has deemed “the most fundamental relationship we have in this country….”
On that, the supporters of Prop. 8 could agree. The traditional marriage has been recognized as being of fundamental importance to society, unlike other relationships, such as polygamy, which also have a historical and religious basis, but as to which society has made a value judgment.
By focusing on the fundamental right to marry, but ignoring that that right arose on the basis of the Supreme Court recognizing the fundamental role in society of traditional marriage, I think the legal team opposing Prop. 8 has set itself up for failure.
Olson’s argument is something of a circular firing squad. In order to prove that society has no constitutionally rational basis for making a value judgment in favor of traditional marriage, Olson needs to prove that traditional marriage is not the most fundamental relationship in society. But, according to Olson, on 14 occasions the Supreme Court has said otherwise.
[Note: The last paragraph was added after the original post.]