The aim of this particular blog is to show that, as do liberals and conservatives, even conservatives among themselves disagree on fundamental issues such as gay marriage. In both instances, the way out is not to demonize your opponent, talking of "moral surrender" or blasting someone as a “RINO”. Instead let’s engage in a “spirited conversation”, as of all people, President Clinton's nemesis Ken Starr does in this discussion on “gay marriage”; I couldn’t have said it better: “It's therefore not surprising that people of goodwill are going to come to contrary views on issues of law and constitutionality, and thus we find ourselves in litigation.”

How “conservative” is “traditional marriage”? If you ask Bush’s Solicitor General and member of the Federalist Society, Ted Olson: not much. If you ask GOProud, not much. If you ask Ayn Rand objectivists: not much. If you ask the Cato Institute: not much. Even the liberal basher on Conservative Rainbow thinks: not much.

As the defense of “traditional marriage” is generally understood to be the conservative, particularly social conservative position, I need not list all sources here. Suffice it to say, that some try to excommunicate adherents of same-sex marriage from conservatism - or at least CPAC-events - altogether.

On Monday, January 11th, a trial goes to court in San Francisco where California’s Proposition 8 banning gay marriage is being challenged by a relative newcomer to the scene, the American Foundation for Equal Rights (AFER). Together with his opponent in Bush v. Gore, David Boies, and a host of other lawyers, Olson represents the group before the United States District Court for the Northern District of California. With the judge allowing cameras in the court room, be prepared for a juicy piece of judicial theatrics to come. Update 1 on January 12: Yesterday, a few hours before the trial began, the Supreme Court stayed temporarily this decision by the judge;  opponents of gay marriage fear that witnesses might feel intimidated by the cameras. The stay holds until Wednesday, when the Supreme Court will look into the issue again. Update 2 on January 14: The Supreme Court, in a 5-4 decision extended the stay ppending a full appeal (h/t to Bruce Hausknecht on DriveThru)

Now, Olson after all is a lawyer, and AFER is supported among others by the champion of many liberal causes, Hollywood’s Rob Reiner. Furthermore, lawyers need not believe in their client’s causes, otherwise any criminal would have a hard time finding a lawyer. Surely, Olson won’t suffer financially and on the judicial front it might be a rewarding intellectual challenge. However, I find ample reason to believe that Olson’s engagement is out of genuine interest in the cause.

Chad Griffin, the Foundation’s Board President put it succinctly to Margaret Talbot, the author of the New Yorker article: “One’s fundamental constitutional rights should never be subject to a majority vote,” he said. “That’s what the Constitution is for. That’s what the courts are for.”

As a European, it took me some time to get accustomed to the free flowing input of non-legal aspects into the exercise of the law in the U.S. Thus, the theatrical antiques of the prosecution and defence seem to take precedence over the execution of justice, from the politicking about juror selection and dramatic staging of witnesses to the oratorial fireworks in closing arguments - fascinating stuff for film and television. Today, it doesn’t surprise me that in such trials politics seem to dominate all other considerations: Why did AFER hijack the issue? Why wouldn’t they allow other parties into the trial? What would happen if they lose this one? Whom to recruit as plaintiffs? and so on. Little space is devoted to the legal questions themselves.

And even then, gay marriage proponents seem to be divided as much as federalists on the question whether the issue should be tried in federal courts. I’d concede though that for the former it is mostly (though not exclusively) a tactical question while to federalists it is one of principle. Some of them think it is a federal matter – interestingly both people who oppose gay marriage (see also Adam's Thursday, March 18, 2004 entry on the Ex Parte blog at 2:06 pm) as well as those who defend it.

I know that many conservatives think that it is not the court’s business to override the will of the sovereign, in this case, the California voters who pronounced themselves in a constitutional decision last November. However, did not the outright homophobe Ayn Rand declare "Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual)?"

Also, was it not Ken Blackwell who wrote a few weeks ago in a townhall piece: "The place of the individual vis-à-vis the state is the root of commonality for all conservatives, and the basic disconnect between conservatives and collectivists" and “The common enemy of all conservatives is the centrality of the state instead of the individual in our political system?” What is the imposed definition of “traditional marriage” onto individuals other than the imposition of the state’s will onto an individual?

You might construe a differentiation between the “majority of the voters” and the “state” or the “government”, but to me that would be pure sophistry. Would you allow the majority of the poor to vote to dispossess all their more blessed sisters and brethren commanding a patrimony of say more than a million bucks? Of course not. Would you not expect a court to study the laws and the constitution and find that the majority had acted against constitutional provisions? Thus, wherein lies the difference to imposing traditional marriage?

I do agree though, that individual rights are not absolute - after all, where would the "socialist" in me come into play? Before you hang me for deviating from the Randian Shining Path: How many of you think that the First Amendment does not allow for peddling pornography to children? And how many of you think that habeas corpus should not extend to terrorists? I do have a differentiated opinions on both of those issues but my point is: the rights are not absolute. Thus, it all hinges on the notion of a compelling reason to limit my rights because of the infringement of other people rights or - more ominously - another "compelling interest" of the state (like an "interest" for the citizens to procreate, see below). The latter though is only required if "strict scrutiny" applies, a legal controversy that certainly will enter the argument in Perry v. Schwarzenegger. I won't go into detail here because if conservatives are the strict anti-collectivist Mr. Blackwell thinks they are, any lessening of the standard should evoke sheer conservative abhorrence. (I need not defend my "socialist" position here, all I do is to discuss whether or not "traditional marriage" is "conservative" by conservatives' own standards. Talbot discusses the details of scrutiny in somewhat more detail.)

Where does the constitution say that everybody has the right to marry? You are right, it doesn’t say so explicitly. I’d hold that it is implicit in the Ninth Amendment. This amendment holds that all non-enumerated natural rights hold, lest by the mere fact that they had not been expressly enumerated in the constitution, the state would feel free to encroach on the liberties of the individual. Most others construe it via the privacy venue. (The due process clause is brought in to extend to persons of the same sex this privacy or non-enumerated right .)

However, there is well established legal precedent for the right to marry:
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.” (Loving v. Virginia, 1967).

That of course, could be read as endorsing the procreational aspect of marriage and thus limiting “marriage” to a man and a woman. As Judge Walker in the Perry case made clear, relying on that argument could create some curious consequences:

"THE COURT: The last marriage that I performed, Mr. Cooper, involved a groom who was ninety-five, and the bride was eighty-three. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?
"MR. COOPER: No, your Honor, you weren’t. Of course, you didn’t.
"THE COURT: And I might say it was a very happy relationship.
"MR. COOPER: I rejoice to hear that.

There is also, I hasten to add, the US Supreme Court decision on Bowers v. Hardwick in 1986, upholding the constitutionality of a Georgia sodomy law, but that was overruled in 2003 by Lawrence v Texas (by a supposedly more conservative court) in 2003.Thus, in all probability you won't find a consistent, principled precedent neither on the gay nor on the gay marriage issue.

Now, some Ayn Rand objectivists would object to any privileges “conveyed by the state” for married couples be they of same or opposite sex. For them, a voluntary association of two (or more?) partners needs no sanction by the state. They resent the state muscling into a voluntary contract. But wouldn’t that be an even stronger assault on "traditional marriage"?

As a civil libertarian socialist, I do agree with this basic tenet of conservatism: “The Federalist Society for Law and Public Policy Studies … is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is,” yet – as I indicated above – I do not agree in all instances with the important caveat in the rest of the sentence “, not what it should be.” While I agree that it is not the courts’ business, to make new laws, there should be a constitutional court that checks acts of the executive, the legislative bodies and the sovereign itself as to their constitutionality. Again, the argument being that it is the duty of the law to defend the individual against unacceptable intrusions by the collective.

Socialist that I am – living in a “traditional marriage” for more than thirty-seven years – I am not only evil, I do have a “bleeding heart” for  gays, too – haven’t heard that term for a while, have you? And I hasten to add: I find it in my rational self-interest to defend gay rights. Who knows which other rights the well meaning zealots are going to vote away? On marriage, I do agree with David Boaz: “Privatize Marriage”! Or if you can’t do that; allow “civil unions” with all rights and obligations and no discrimination of same or opposite sex couples. If you want to marry, go to the church of your choosing. Each denomination is free to define “marriage” to their liking, no trademark given to any particular one.