******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Monday, August 9, 2010

Ted Olson May Be Too Smart By Half

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.]

Related Posts:
Deconstructing Marriage
Fed Judge Finds Calif. Prop. 8 Unconstitutional

Follow me on Twitter, Facebook, and YouTube
Bookmark and Share


  1. I listened to Mr. Olson's comments with some amazement. The tear-jerking "looking into their eyes" comments really seemed too emotional. I thought during the interview that one could make the same arguments for bigamous and plueral marriages as well as marriages where one or both partners are very young.

  2. I think that where Olson was going with his logic was that our understanding of "marriage" has changed over time. Yes, the Supreme Court cases giving the fundamental right to marriage were only about opposite-gender marriage, but the cases evolved our understanding of what marriage meant.

    In Loving v. Virgina - the idea that marriage must be kept within the bonds of your same race, was denied.

    In Turner v. Safley - the right of marriage was established to be not only for procreation.

    So in my humble opinion, not a legal scholar here at all - just an undergrad poly sci major - it seems as though your argument does not have much merit, since Olson, as well as the decision by Judge Walker, is saying that our cultures understanding of marriage has changed over time. Thus there is no reason for "marriage" to still be constrained to opposite-gender couples.

  3. "I think that where Olson was going with his logic was that our understanding of "marriage" has changed over time."

    "our" = that of left-wing activists and cultural elites.

    "our" <> majority of the American people.

  4. KyleJL - yes, please define "our"...if you are referring to the Unabridged Liberal Douche Dictionary, them perhaps I might agree.

    Actually, the understanding of "marriage" has NOT changed over time. It is merely those who perpetuate the myth, that such deviant behavior should be not only accepted but embraced by society, who WISH it changed.

    Not a legal scholar here - just a student of history - it seems I don't have a few hundred years of Supreme Court decisions to form my understanding of "deviant", only a few thousand years of human existance.

  5. Kyle - you point yourself right back at Prof. Jacobson's argument: these court decisions you refer to were evaluating the one man/one woman relationship. Read this again:
    "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."
    --Prof. Jacobson

    Based on your logic, polygamy and marriage between people and animals is/may be acceptable, because "our cultures (sic) understanding of marriage has changed over time." Prof. Jacobson's point is that Olson's assertion has not been proven, and thus Olson's side has set themselves up to fail at the appellate level. The pro-Prop. 8 team did not force this issue, but it should be caught at a higher level, if we are still a nation of laws (no sarcasm intended).

    The judge's ruling in this case was loaded with self-justifying explanations as to why he depended on biased witness testimony rather than legal precedent. The SCOTUS has ruled in many instances against polygamy and other "value judgment" definitions of marriage. This is ONE judge making the decision for CA and setting precedent for all 50 states who now have to address this issue and tremble at a single judge's power to dictate to us ALL what is acceptable in society. This is the ultimate form of judicial tyranny.

    The 9th circuit will not likely do anything; however, the SCOTUS will evaluate this fundamental flaw, IMHO, and overturn this activist judge's ruling.

  6. "I think that where Olson was going with his logic was that our understanding of "marriage" has changed over time."

    Nice try Kyle, but the definition of marriage is the very thing in contention. It should be noted that the redefinition of marriage has failed about 40 times when put to a vote, so "our" definition hasn't changed.

  7. The even bigger logical flaw in the argument is that gays are deprived of a right everyone else enjoys. This is false. They have exactly the same right as everyone else to marry someone of the opposite sex who is both willing and legally eligible to marry them.

    Note the qualifiers. No one has the right to marry anyone they want. They can only marry within certain limits. That some people don't want to be restricted to those limits does not mean their rights have been infringed. To the contrary, they want a right no one has ever had before.

    I'm pretty sure the Constitution doesn't protect non-existent rights.

  8. Also note that no one has the right to marry just any person(s), animal, or child they are sexually oriented towards. The right is very specific, as irvingprime said, to marry a person of the opposite sex.

    And it's interesting reading the judges ruling. The logic certainly doesn't rule out polygamous marriage. The opinion said the states interest in regulating marriage is in creating "stable" households. There's no reason a polygamous marriage couldn't be as stable as a homosexual marriage. The opinion continually says this new definition is limited to couples, but never explains why. Using the judges logic, it's probably for no better reason than to specifically disadvantage polygamous marriages.

  9. if the california constitutional amendment violates the u.s. Constitution, isn't the judge declaring that an amendment to the federal Constitution defining marriage as being between a man and a woman would also violate the federal constitution? or can a constitution violate itself?

  10. The comment about how the first amendment should not be up for a vote and for the same reason gay marriage shouldn’t be either is particularly risible, given Olson’s participation in McConnell v. FEC. That is the case where Olson successfully defended McCain-feingold against a facial challenge. That would be the same law struck down as violating the first amendment in Citizen’s United. I mean at least Kagan had the courtesy to lose in her attempt to subvert freedom of expression.

    To quote myself: “So basically he tried to justify a ruling not supported by the constitution by citing a principle actually written in the constitution that he personally worked to subvert.”


  11. op ed from law prof: Walker should have disqualified himself.