August 9, 2010 | by Joshua Lynsen
Why conservatives should support same-sex marriage

Ted Olson, the highly regarded conservative lawyer who’s helping wage the federal legal battle against Proposition 8, yesterday took his case to Fox News Sunday.

During the 14-minute interview with host Chris Wallace, Olson deftly explained why last week’s ruling by U.S. District Court Judge Vaughn Walker isn’t an instance of “judicial activism,” how the U.S. Constitution guarantees the right to same-sex marriage, and why conservatives should support Walker’s decision. The full interview is available here and embedded below.


In case you can’t see or hear the video, we’ve transcribed some of the highlights. On the matter of judicial activism, for example, Olson noted:

“It’s not judicial activism when judges do what the Constitution requires them to do and they follow the precedent of previous decisions of the Supreme Court. … It is not judicial activism. It is judicial responsibility in its classic sense.”

When asked to explain where the U.S. Constitution guarantees the right to same-sex marriage, Olson responded:

“Where’s the right to interracial marriage in the Constitution, Chris? The Supreme Court has said that marriage, the right to marry a person of your choice, is a part of liberty, privacy, association and spirituality guaranteed to each individual under the Constitution. When you say same-sex marriage, you’re saying a particular type of marriage. The Supreme Court has looked at marriage and has said that the right to marry is a fundamental right for all citizens. So you call it interracial marriage and then you could prohibit it? No. The Supreme Court has said no. The same thing here.”

On why Prop 8 should be declared unconstitutional, despite the majority support it received from California’s voters, Olson explained:

“If 7 million Californians were to decide that we should have separate but equal schools, or that we would send some of our citizens to separate drinking fountains, or have them be in the back of the bus, that would be unconstitutional. 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.”

In response to the suggestion that each state should decide the issue for itself, Olson said:

“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 until 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.”

And as to why political conservatives should support the case for same-sex marriage, Olson reasoned:

“We believe that a conservative value is stable relationships and a stable community and loving individuals coming together and forming a basis that is a building block of our society, which includes marriage. We believe that that is a conservative value. We also believe it’s an important conservative value to sustain the rights of liberty of our citizens, and to eliminate discrimination on invidious bases, whether it’s race or sex or sexual orientation. It should be a liberal and a conservative value. It is a fundamental American value: All men and all women are created equal under the law.”

There’s more worth seeing in the video, including Olson’s response to newly confirmed U.S. Supreme Court Justice Elena Kagan’s stance that “there is no federal constitutional right to same-sex marriage,” and his expectations for the case should it go before the Supreme Court. Take a few minutes to watch the full interview. It’s well worth your time.

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