Published January 15, 2010
This week a landmark civil rights court case began in California. The federal trial Perry v. Schwarzenegger challenges the constitutionality of California’s Proposition 8 ban on gay marriage. Two couples argue that they have a constitutional right to marry, and that California’s law denies them due process and equal protection under the 14th Amendment, relegating them second-class citizens.
You may think, “San Francisco liberals at it again! Hijacking the courts, inventing new constitutional rights!” Stop there. The lead counsel in the case is George W. Bush’s Solicitor General, who successfully argued Bush v. Gore before the Supreme Court in one of his fifty-five performances before the nation’s highest judicial body. He is Theodore “Ted” Olson, a founder of the Federalist Society, constitutional law expert, and one of the most respected conservatives in America.
Mr. Olson thinks constitutionally guaranteed rights ought to transcend left vs. right, Democrat vs. Republican divides (he even recruited legal opponent David Boies as co-counsel). I agree with him. And as a proud Republican representing a younger generation of conservatives that cherish individual freedom, I am honored to join the American Equal Right’s Foundation’s Advisory Board.
I encourage everyone, but especially Republicans, to consider Mr. Olson’s arguments on the merits, both in his opening statement and throughout the trial’s ensuing three weeks. The plaintiff’s counsel seeks to convince Judge Vaughn R. Walker that the Supreme Court has already decided in Loving v. Virginia, Turner v. Safely, and in Lawrence v. Texas among others, that the right to marry is a fundamental right currently denied to an entire class of American citizens. This is unconstitutional.
We Republicans have often found ourselves on the wrong side of civil rights struggles since the 1960s, but there was a reason that Martin Luther King, Jr.'s father is said to have supported Republicans.
Republicans were historically the party ever-expanding freedom to disenfranchised minorities, from newly liberated slaves to giving women the right to vote. Susan B. Anthony was a Republican. By supporting the AFER trial we have an opportunity to establish our historic credibility on civil rights issues once again. But we should support marriage equality because it is the right thing to do.
Gays and lesbians are our friends, neighbors, doctors, colleagues, sisters and brothers. Does it sit well with you that because of their sexual orientation, a factor outside one’s control, that they should have less rights and protections in the eyes of the law? While increasing acceptance of gays marks my generational experience—Ellen DeGeneres is welcomed into the living rooms of millions of Americans daily, an impossibility in even my childhood— many who are older than me fear that if gays and lesbians can marry, what’s next? They worry that homosexual marriage degrades the integrity of heterosexual marriage. They fear that their children might be exposed to alternative lifestyles that will impact them negatively, or argue that the purpose of marriage is procreation. If you are uncomfortable with gay marriage, I encourage you to pay attention to this trial, the plaintiffs, the defense and the spectrum of experts, historians, psychologists, economists, political scientists, who will testify as to the effects and detriment of Proposition 8. In the words of NAACP chairman Julian Bond, “The humanity of all Americans is diminished when any group is denied rights granted to others.”
Some Republicans support gay rights, but prefer progress through legislative action or majority rule at the ballot box, rather than judicial action. But what if a democratic election imposes mandates that violate a citizen’s constitutional freedom? In the event that majority rule insufficiently protects individual liberty, our system of checks and balances puts forth that it is the role of the courts, to guarantee and protect the rights to individual Americans.
That’s why the Supreme Court, in 1967 Loving v. Virginia, legalized interracial marriage –six years after our current president was born to an interracial couple. At that time 73% of the population opposed “miscegenation.” How long would it have taken to change popular opinion, for the minority to democratically win their constitutional rights? As Martin Luther King, Jr. famously asserted, “Justice delayed is justice denied.”
For those of you who would label me a "RINO" (Republican In Name Only) for taking this stand, I direct you to Vice President Cheney, whose conservative credentials are impeccable, and who answered a question on the topic before the National Press Club audience on June 1, 2009 by saying simply, “…freedom means freedom for everyone.”
Margaret Hoover is a conservative commentator and Fox News contributor.