Skip navigation

Ted Olson appeared on Fox News Sunday to talk about Perry. The fact that he had to BS his way through the Supreme Court cases on marriage is powerful evidence that he is blowing smoke:

CHRIS WALLACE: Mr. Olson, let’s start with the issue of judicial activism. Seven million Californians voted for Proposition 8. Seven million people voted to amend the state constitution to ban same-sex marriage. Now a single judge overrules all of them? 

TED OLSON, FORMER SOLICITOR GENERAL: Well, that’s why we have judges. That’s why we have an independent judiciary. We do not put the Bill of Rights to a vote. Forty-one states once prohibited interracial marriages, so that in Virginia when the Supreme Court finally struck that prohibition down, the president’s parents could not have been married. 

Our fundamental rights — part of our Constitution is a separation of powers and an independent judiciary. We ask judges to make sure that when we vote for something we’re not depriving minorities of their constitutional rights. And that’s what the judge did.

Where in the Bill of Rights does it say anything at all about gay marriage, or marriage at all? It doesn’t. So Olson is talking about the judge-created idea that marriage is a fundamental right. The Bill of Rights (meaning the first ten) is silent on the matter. Only when the courts started getting cute, and using the 14th amendment’s Due Process clause for things it was not meant for, did this new, judge made list of fundamental rights appear. (see Justice Thomas’s concurrence in Macdonald v. City of Chicago for a good outline of how the court got it wrong, and should have used the Privileges and Immunities clause of the 14th amendment to achieve virtually the same results. )

In every case where the court said marriage was a fundamental right, the definition of “marriage” was clear. The  word referred ONLY to a relationship between one man, and one woman. The court has never in the least intimated that “marriage” could be defined as anything but one man, one woman. Because the court has held one man, one woman marital relationships to be a fundamental right, you could say the constitutional definition of that word has become fixed.

In fact, the definition of that word has become VERY fixed, since the court has reaffirmed the idea that marriage is a fundamental right over and over again. You might say that definition has become a sort of “super-precedent” (remember that?) in terms of a constitutional definition.

So where does Olson, and his judge friend, come off redefining words that have been constitutionally fixed?

And if it were part of the Bill of Rights, how come the Court ruled against gay marriage in Baker v. Nelson in 1971? Remember, this issue has already been addressed by the court. If it was such an integral part of the Bill of Rights, or any other part of the Constitution, why did the Court dismiss the petition for cert there “for want of a substantial federal question.”?

(Where is the Greek chorus crying “Precedent! We must uphold the Baker precedent!” ? They seem to have slunk away.)

So, Olson was slinging BS a bit here.

WALLACE: But as a leading conservative lawyer, you have condemned such judicial activism in the past. Let’s take a look at what you said in 2007. “Judges have taken some of those decisions off the policy table, taking them away from the people, by constitutionalizing these issues.”

Question, isn’t that exactly what Judge Walker did in this case? 

OLSON: No. 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. 

And in every one of those instances, “marriage” was specifically defined as one man, one woman. It was not defined as some vague idea about whoever wants to live together can get married. That is about as far from the Constitutional definition of marriage as one can get.

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.

No one is denied the right to marry because of the color of their skin anymore. I think he misspoke.

We do not permit discrimination, inequality. That’s why we have a 14th Amendment that guarantees equal rights to all citizens. 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.

Good. So  following the previous decisions of the court would mean accepting the constitutional definition of marriage as one man, one woman.

WALLACE: But, Mr. Olson, you have also said this. Judges should, quote, “interpret the law, not make it up, not create new rights that weren’t there in the Constitution.” Where is the right to — you talk about the right to marriage. Where is the right to same- sex marriage in the Constitution? 

OLSON: Where is 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.

Again: In every case where the Supreme Court affirmed that marriage is a fundamental right, the term marriage was defined as one man, one woman. Nowhere has the court come close to intimating that marriage is something that occurs between anyone group of people who simply desires to live together.

Where is the right to interracial marriage? Well, that IS in the Constitution. In the 14th amendment, where it says that no one should be denied equal protection of the laws. It does not require a redefinition of a very clearly defined word to understand that race can never be a bar to marriage. To deny blacks the right to marry whites is clearly a problem under the 14th amendment, considering the whole purpose of that amendment was to stop discrimination against blacks. Interracial marriage was between one man, and one woman. No problemo. Clearly unconstitutional to prohibit it.

And now Olson says “spirituality” is part of the Constitution. Sweet mystery of life! The famous “spirituality clause” of the first amendment.

OLSON: 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.

And what was the definition of “marriage” in each of those cases?


Well, Ted has no real answers, so he’s got to throw dust in your face, to distract you. Remember, when you haven’t got anything to say, go back to racism:

WALLACE: So society doesn’t get to say that marriage should be between a man and a woman, even though society has said that for thousands of years. 

Seven million people in California don’t get to say that marriage is between a man and a woman, even though just November of 2008, 7 million Californians voted that they wanted to change their own state constitution to say just that. 

OLSON: In the 1960s, an equivalent number — it’s a smaller number, but — of Californians voted to change their constitution to say that you could discriminate on the basis of race in the sale of your home. The United States Supreme Court struck that down.

Well, yes, they did, because that was clearly racial discrimination and the equal protection clause, as well as several statutes, made that illegal.  So Ted’s point is…?

In order to get where Ted wants to go, you have to start changing the constitutional definitions of words. You have to start ignoring and twisting precedent, not following it.

If we are  going to redefine words that have been very clearly interpreted for decades, we can go about redefining lots of things. For example, abortion. Should the word “abortion” mean the destruction of an embryo that has been fertilized in vitro? Why not?  

Once you go down the road of redefining well known terms, you are in for a big surprise.

%d bloggers like this: