The news that shook the country, and the gay community in particular, on Aug. 3, was that a California U.S. Circuit Court judge overturned Proposition 8, which banned same-sex marriage there. Last week, I asked Ted Olson, the co-lead attorney of the team that successfully challenged Prop 8, what motivated him to pursue the case, and he eloquently and movingly replied, “I agreed to participate because I believed that Proposition 8 perpetrated unnecessary, destructive, cruel and unlawful discrimination against gay men and lesbians. I invited David Boies to join so that our legal team would have his talent, expertise and creativity, and to demonstrate that this cause was neither conservative nor liberal, but an issue of human rights, human decency and equality.”
I could not agree more. And there is an inconvenient truth in this for the gay left: conservatives have taken the leadership role in achieving marriage equality and have achieved the most important success so far as they are the most willing and most able to take the case to the Supreme Court.
Olson is a Republican and was the former Solicitor General for President George W. Bush. The judge who ruled against Prop 8 is Vaughn Walker, who was nominated by President Ronald Reagan. Walker’s nomination stalled because 24 House Democrats, led by Nancy Pelosi, deemed him anti-gay and hostile to the poor. Walker’s nomination was re-submitted by President George H. W. Bush and he was confirmed in1989.
I support Olson’s desire to make marriage equality a non-partisan issue. And I wish that the leader of the Democratic Party, President Obama, along with Vice President Biden, would drop their opposition to marriage equality. How much longer can they hold onto that position and remain credible, and why are they doing that at all?
On the Sunday morning news shows the weekend after the Prop 8 ruling the White House rolled out David Axelrod to explain Obama’s position on the issue. Axe twisted into a pretzel. Rachel Maddow summed up Obama’s “impossibly tortured logic” best: “So the line from the administration is that Barack Obama does not want gay people to be allowed to be married, but when gay people can be married and other people are trying to take away that right like in California, he doesn’t want the right to be taken away. But, he’s not in favor of that right in the first place. You got it? The president is against gay marriage but he is also against constitutional amendments to ban gay marriage, which means that he’d apparently prefer that gay marriage be banned through flimsier tactical means? That’s the president’s position. Clear as mud.”
For a conservative perspective on marriage equality, I interviewed Margaret Hoover. She is a straight conservative who serves on the American Foundation for Equal Rights, which supports marriage equality and gay rights in general and has been a key supporter of the fight against Prop 8. She is also a Fox News contributor.
Washington Blade: As a straight, self-declared conservative Republican, why do you support marriage equality?
Margaret Hoover: “Discrimination is deeply un-American. When the government sanctions discrimination against a group of citizens, it gives permission for other citizens to do the same. This isn’t a partisan issue.
“As a conservative, I identify with the tradition of American Individualism, the notion that individuals, not the government, are the most important units of our society and culture. The proper role for government is to protect individual freedom and liberty, through the Bill of Rights and our Constitution. There’s never been any question to me that gays and lesbians are individuals that deserved the same rights and freedoms that I enjoy. The fact that gays and lesbians don’t benefit from the same freedoms that I enjoy is unjust and bothers me deeply.
“Our country is better than this discrimination, and our laws are supposed to protect the freedoms of every individual, not deny those freedoms to a minority that is different in some unimportant way.
“I don’t have a gay sibling or relative. I have lots of gay friends. But I can’t say that I came to this issue because of a family member whose bout with discrimination I’ve seen up close. It’s just always struck me that this is fully consistent with the conservatism that I value — one that champions individual freedom. This is the brand of conservatism to which I subscribe.”
Blade: Many conservatives decry what they call judicial activism and call Judge Walker’s ruling just that. What is your response?
Hoover: “Judicial activism is a real problem. There are judges who use their position on the bench to sculpt public policy decisions that reflect their own worldview, rather than interpreting and deciding the law as it’s written. I favor judicial restraint, when judges go to great ends to interpret and rule on the law as it is written. My view is that judges ought to rule narrowly, informed by existing laws and guidance from higher courts on constitutional issues.
“Roe for example, is the classic example of judicial activism whereby the Supreme Court created a right to privacy that doesn’t exist in the Constitution. My understanding is that Justice Blackmun, who wrote the majority opinion, saw himself as a change agent on women’s reproductive freedom.
“Perry v Schwarzenegger, on the other hand, is a straightforward example of interpreting the law as it is. Judge Walker has not invented new rights out of thin air. Since 1888, the court has ruled 14 times that marriage is a fundamental right — just as freedom of speech, freedom of the press, freedom of assembly are also fundamental rights. Judge Walker didn’t create a new “right,” but rather reviewed the evidence in the case and ruled that indeed gays and lesbians are being discriminated against for no good reason, and as a result the laws make them second-class citizens, and that this law denies them their constitutional rights to marry.”
Blade: Do you think that gays are better off as Republicans or Democrats?
Hoover: “Well, I’m biased because I think that when Republicans are acting like Republicans should — being true to their principles of fiscal discipline and individual freedom — all individuals regardless of their sexuality or ethnicity are better off as Republicans. Of course we can debate whether the Republican Party in its current incarnation actually represents these principles.
To people who might say gays and lesbians are marginally better off with Democrats, they should think twice. Clinton passed DOMA and signed DADT.
I think the reason gays support Democrats over Republicans by about 70 to 30 percent is that Democrats pander to us and want our money and votes by telling us what we want to hear. Yes, there are many anti-gay Republicans who should never get a gay vote and I fully oppose them.”
But when you look beyond the rhetoric and examine the anti-gay legislation that has passed, there is only one administration that looks really bad, and it is Clinton’s. And Obama is not looking very good right now as he refuses to support marriage equality. And let’s admit, with all of the money that we throw into expensive dinners and fundraisers to gay organizations, isn’t it ironic that this unfunded group from the outside has had more impact than the organizations to which we donate?