Social & Domestic Issues

If Ted Olson and David Boies are so right, why does the Justice Department disagree with them?

For the better part of a decade, the arguments made by proponents of same-sex "marriage" have relied on linguistic twists borrowed liberally from the terminology of the Civil Rights Movement.   Usually, this is seen via the attempt to equate the fight to fabricate same-sex marriage with the struggles black citizens faced in receiving the constitutional privileges and protections rightly extended to all citizens of the United States.   This includes shameful but increasing attempts to equate most Americans’ fidelity to marriage as akin to historic opposition to interracial marriage.

Those that take this approach, such as anti-Proposition 8 attorneys Ted Olson and David Boies, routinely cite the Supreme Court’s decision in Loving v. Virginia (1967), which struck down Virginia’s ban on interracial marriage, in a weak attempt to support their cause.   However, the problem for men like Olson and Boies is that while they’re using Loving as a would-be trump card, the Justice Department doesn’t seem to agree.   After all, in explaining why it would no longer defend the Federal Defense of Marriage Act (DOMA), the Justice Department hasn’t even hinted that Loving may be instructive.

Consider Attorney General Eric Holder’s Feb. 23   "Statement … on Litigation Involving the Defense of Marriage Act," a nearly 700-word writ that specified the Justice Department’s intention to quit defending DOMA on the grounds that it was viewed with "suspicion by the courts."   Holder contends that this is so because DOMA, and laws like it, target so-called "minority groups with a history of discrimination."   (In this context, "minority groups" is simply leftist-speak for those who engage in homosexual behavior.)   Interestingly, however, he doesn’t make any reference-vague or otherwise-to Loving.  

Even if we consider Holder’s Feb. 23 letter to Congress, wherein he went into greater detail to explain why the administration would longer defend DOMA, Loving is not referenced at all, expressly or implicitly.   Holder’s letter is, of course, littered with citations to court decisions, but no reference to Loving.   This is not accidental.

Juxtapose this with arguments Olson and Boies make for same-sex marriage, and it becomes clear that Holder is operating from a different playbook.   For example, as a special guest on “Fox News Sunday,” Olson was quick to make Loving a central theme of his argument when he ardently equated same-sex marriage with interracial marriage.   The interview was characterized by Chris Wallace asking questions such as, "Where is the right to same-sex marriage in the Constitution?" and Olson shooting back answers such as, "Where is the right to interracial marriage in the Constitution, Chris?"

Olson went on to explain that the Supreme Court "has looked at marriage and has said that the right to marry is a fundamental right for all citizens"-the implication being that if it’s unconstitutional to deny marriage to interracial couples, because they are part of "all citizens," then it’s also unconstitutional to deny marriage to members of the same sex, because they are part of "all citizens" too.   But in relying on this unstated premise, Olson ignores that the opposite-sex requirement for marriage is closely bound to the institution’s core purpose of increasing the likelihood that children will be born to and raised by both their mother and their father.   In contrast, racial restrictions on marriage not only failed to serve this purpose, but sadly kept the mothers and fathers of interracial children from entering that binding and stabilizing institution.  

So why isn’t the Justice Department echoing the arguments that tie same-sex "marriage" to interracial marriage via the 1960s law in Virginia, or explicitly via the mention of Loving?   Beyond the administration’s desire not to ostracize black voters who take offense at the hijacking of the civil rights rhetoric, the Department of Justice perhaps understands that Loving has nothing to do with same-sex "marriage," and that there’s no sensible way to mold it into the supportive role Olson, Boies and others are trying to force on it.

The issue in 1967 was whether whites could marry persons of color.   The issue in 2011 is whether people of the same sex can marry each other.   As stated by one scholar, the invocation of Loving by some is just another example of "an illegitimate attempt to appropriate a valuable cultural icon for political purposes."   And while the Justice Department is immensely wrong to refuse to defend the federal DOMA, at least it isn’t misusing the entirety of our country’s civil rights history to promote same-sex "marriage."

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