Ted Olson, Keep Your Hands Off My Body

By Tracy Kronzak Jan 21, 2010

This week’s Newsweek article “The Conservative Case for Gay Marriage” is exactly what’s worried me since the mono-minded drive for same-sex marriage began. Yes, gay marriage has finally been co-opted as a "family value" in the worse connotation of the term. The article is written by ultra-conservative Ted Olson, the infamous Bush v. Gore attorney, and someone whom you may also be familiar with because of his support for the elimination of affirmative action and expansion of President George W. Bush’s wartime powers. Olson explains his apparently altruistic and genuinely conservative principles for litigating in support of same-sex marriage in California. This article is not, however, as Olson would like you to believe, the story of a conservative who looked deeply into his heart and reinterpreted his beliefs to majestically include same-sex marriage as a fundamental right. This is a strategic and calculated move by a conservative litigator to expand the legal system’s control over the body politic. Olson’s article makes the case for same-sex marriage wrapped up in the most flagrant trappings of patriotism and hardworking, tax-earning, God-fearing stereotypes, “Our lesbian clients are raising four fine children who could not ask for better parents,” he writes. It’s enough to make my eyes bleed. The rest of us, including Olson’s co-litigator, the liberal David Boies, are along for the ride. The article throws down the gauntlet to conservatives nationwide, but not to challenge homophobia. Instead it lays the groundwork for forever incorporating “family values” into our laws and demonstrates the utility of arguing for same-sex marriage as a means to greater ends. If, and it appears more likely when, the courts overturn the ban on same-sex marriage in California based on the legal arguments Olson and Boies are making, my bet is that we will see a slew of right-wing legal cases launched that:

1) Challenge affirmative action because it violates the tenants of legal equality set forth in the same-sex marriage decision. 2) Argue that life, like marriage, is fundamental to the family and therefore abortion should be made illegal again. 3) Determine that federal programs such as welfare are legally within the bounds to legislate family construction via marriage requirements.

Olson himself tips his hand as to the real motivation behind his involvement with overturning same-sex marriage while acknowledging the legal precedents that have already been accorded to marriage by the Supreme Court:

“Marriage requires thinking beyond one’s own needs… and in doing so establishes a formal investment in the well-being of society.”

The “well-being of society,” of course not defined by anything other than the most normative and dominant values held dear – in other words, a triumph for the status quo. It turns out that same-sex marriage really is the Holy Grail for legal equality in the United States. Be careful what you wish for, it may just come true.