The Olson-Boies Gay Marriage Stunt

By using the word "stunt" in my title, I do not mean to imply that this is not a serious matter. Federal Courts are for serious matters, and gay marriage is no trivial affair. But this trial is a stunt in the sense that it has been designed by plaintiffs' counsel to gain the maximum in attention, both inside and outside the court system. In that regard, Perry v Schwarzenegger resembles the Scopes trial. The Economist article I earlier posted to facebook gives the essentials of the case.

For those who haven't heard, the nominal plaintiffs in Perry v Schwarzenegger are two gay couples who are arguing that they have been deprived of their right to marry, in violation of the U.S. Constitution. The real plaintiffs are the attorneys David Boies and Ted Olson. Olson is a former Solicitor General of the United States, appointed by George W. Bush, and has been on every conservative short list for the Supreme Court for years. To add to his impeccable conservative credentials, Mr. Olson has even suffered from foreign terrorism; his wife, Barbara, was aboard the airplane that was crashed into the Pentagon on September 11, 2001. David Boies is a well-known liberal attorney; he and Mr. Olson were on opposing sides in Bush v Gore, the 2000 election case from which Mr. Bush emerged as President of the United States.

So, a conservative and a liberal have joined forces, and they have identified the perfect plaintiffs - handsome well-spoken people who can talk sincerely about family values. (Ms. Perry and her partner are raising four children.) They have a good venue, San Francisco, they know legal strategy and tactics inside and out, and they are funded to take this all the way to the Supreme Court. (The Supreme Court has already intervened in this case, barring its broadcast on You Tube at the request of the defense, which feared it would appear idiotic.)

My personal take on gay marriage is that it is unnecessary, but it isn't a major issue in any case. Virtually all of the rights any two (or more) people gain from being married to one another can be established by a well-written contract. Ownership, inheritance, child custody, and disposition of property upon death or divorce can all be put into a civil contract. The only thing is that marriage is a civil contract which takes care of these issues in accordance with pre-existing state law. In other words, marriage is a short-cut for achieving the determination of rights which could be established by one or a series of individual contracts. And to the degree that marriage is a contract determining property rights, I don't have any problem with same-sex couples partaking of the institution.

Of course, marriage is also a sacrament. The religious 70% among us believe that God ordained marriage, and many of them believe that God said that marriage should involve one man and one woman. (I would advise them to read the book of Genesis for the record of Jacob's family history: two wives, two concubines (described as his wives' servants), resulting in twelve sons and one daughter with four mothers. Gen. 35:22-26.) Okay, but these are parallel institutions, neither of which is necessary for the other. That is, one can be married and have all the privileges of marriage without the blessing of a church, and a church can perform its marriage ceremony without the formality of a marriage license (as long as the bride and groom can tolerate a certain amount of legal uncertainty).

The government should not be in the business of telling people whom they can or can not marry. I think that a marriage license and ceremony should be available to any couple who are of legal age, of sound mind, and not already married. On the other hand, I do think that churches have a perfect right to set their own rules for the use of their buildings and personnel, and if they don't want to perform marriages for same-sex couples, they are within their rights.