There are two exchanges between Ted Olson, and Fox News’ Chris Wallace from Olson’s Fox News Sunday appearance that get to the heart of the marriage equality/Proposition 8 issue for me. Here’s the first statement from Olson:
If we didn’t have a separation of powers, if we didn’t have a Bill of Rights, then 7 million Californians could take away your rights, or my rights or the rights of these citizens in California. But we do have a Bill of Rights, and it’s intended to protect us. The 14th Amendment was the result that — the 14th Amendment that guarantees due process and equal protection to all citizens, to all persons, was the result of a civil war intended to enforce the promise of our Constitution that all men and women are created equal.
Here’s the second:
WALLACE: Here’s where some people see a comparison to the battle over abortion. The political process in the case of same-sex marriage was working. Five states and Washington, D.C. have legalized same-sex marriage.
Now, instead of letting this be decided on a state-by-state basis, you are, in effect, pushing the courts to pre-empt the argument, which is exactly what they did in Roe vs. Wade.
OLSON: Well, would you like your right to free speech — would you like Fox’s right to free press put up to a vote and say, “Well, if five states have approved it, let’s wait till the other 45 states do?” These are fundamental constitutional rights.
The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the Constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law is a violation of our fundamental rights.
Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I am very, very pleased about that, because it is extraordinarily damaging to our citizens, our family members, our brothers, our sisters, our co- workers and our neighbors when they are labeled second-class citizens.
On some level, what we’re dealing with Prop. 8 (and all the other attempts to make same-sex marriage rights subject to a show of hands) is the fact that most people can’t imagine their rights being taken away by a show of hands. That’s why the Constitution protects those rights.
Obviously one’s view of marriage is influenced by the relationship between your own parents. My parents met in the 1950s when they were teenagers in a small town in upstate New York. They married in their early 20s, and went on to raise two kids. In many ways they are the embodiment of Ross Douthat‘s religiously-inspired [LINK: ideal] of heterosexual marriage. Except that for the first decade or so of their relationship, it would have been illegal in many parts of this country for them to get married, because my father is white and my mother is black. I don’t know what it’s like to be gay and not be able to marry one’s partner, but knowing that my parents, who are more in love with each other than any two people I’ve ever known, could have been legally prevented from getting married within their lifetime because they are not the same race has always framed the issue of marriage equality for me. It’s heartbreaking for me to think of my parents not being able to be married for no other reason than because of longstanding cultural taboos against miscegenation, not because I wouldn’t have existed but because that kind of love is so rare that denying it implicates the state in an indefensible act of cruelty.
I can’t help but think about my own parents when I think about how many people are denied that experience, simply because they happen to share the same gender. It’s hard for me to understand how anyone could see that as any kind of justice.
