Ted Olson's Faulty Polygamy Argument

Okay, so I'm not a lawyer, much less a constitutional lawyer. Ted Olson is a lawyer -- an accomplished attorney with a fine mind and a capacity for facile argument. But he's dead wrong when he says the law can exclude polygamy or any other marriage arrangement though it recognizes the legal "right" of homosexuals to marry. Let's carefully consider Olson's oral argument in response to Justice Sotomayor's query about the plasticity of marriage should the institution be opened to homosexuals.

First, let's establish not a point of law, but a point of republican necessity.

When we citizens leave the law to barristers, academics (who teach the law), and the left, what do we get? We tend to get rulings that make putty of the Constitution by jurists who believe it's their mission to draw inferences and concoct broad opinions based on the spurious notion of "interpretation" and application of contemporary standards to the law, while largely omitting original intent, which is inconvenient because it impedes efforts to make the Constitution a "living" document (subject to quicker change by circumventing the checks and balances built into the document by the Founders).

We citizens have a right -- indeed, a duty -- to weigh in on the legal questions of the day that impact the society, culture, and ourselves. We're intended to be a nation of men subordinate to the law, but a nation as well of men required to influence and shape the laws we're under. When the law is left to experts (and those activist groups who would rather make the law nearly exclusively the domain of jurists and lawyers), we see impositions of unpopular and unworthy laws. We see abuses, via the Commerce Clause, for instance. We citizens have an obligation to take the law back from lawyers and jurists.


Now onto Olson's response to Justice Sotomayor's question about limits on marriage (or the lack thereof) should the institution be opened to homosexuals. Here's the Sotomayor-Olson exchange from a transcript provided by NPR:

JUSTICE SOTOMAYOR: Mr. Olson, the bottom line that you're being asked -- and -- and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?

MR. OLSON: Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.

It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different --

First, marriage is a "conduct." In societal terms, it's a contractual relationship between one man and one woman (traditionally). It requires an "entering into." Olson's contention that excluding homosexuals from the institution of marriage rests on a bias ("status") alludes to race-based laws during the times of slavery and Jim Crow when whites and blacks (freed blacks during slavery) were prohibited from intermarrying in states.

There's a critical difference between laws that prohibited marriage based on skin color versus barring marriages based on one's sex (marriage between two people of the same sex).

The critical difference is biology. A black woman and white man aren't incapable of procreation, nor an Asian man and Anglo woman, as examples. Homosexual couples can't procreate, unless they do so through surrogates (through the use of the opposite sex). Or if they don't procreate through surrogates, then they must adopt (if permitted).

Nonetheless, biology dictates. As I wrote last year for American Thinker:

Marriage and parenting aren't invented, but evolved institutions. They evolved from human nature, from millions of years of human (and before that hominid) adaptations to the environment. Heterosexual marriage and parenting are conformities to nature; they are time-tested as the most efficacious ways to nurture children to adulthood.

Mark Regnerus, a sociology professor at the University of Texas, whose research on same-sex parenting has broken new ground, challenges fashionable opinion, and, thus, sparked controversy (and who has taken plenty of flak for his assertions) finds that:

"[C]hildren appear most apt to succeed well as adults when they spend their entire childhood with their married mother and father, and especially when the parents remain married to the present day," he wrote.

So, again, marriage evolved due to the tyranny of biology and over thousands of years of adaption and learning that children are best reared to adulthood by the man and woman who procreated them (or opposite sex surrogates). Even in extended families (clans, etc.), children are better nurtured when male and female modeling are present, modeling that conforms to children's natures (about 97% of children are naturally heterosexual).

As to the argument advanced generally that if marriage is for the purposes of procreation, wouldn't that exclude infertile heterosexual couples and seniors from marriage?

The answer is that while marriage is an evolved institution, which has as its primary purpose the natural bringing forth of children and their rearing in general accord with nature, infertile heterosexual couples are not excluded from marriage because they're in harmony biologically. They have the capacity, if they choose, to raise children (via adoption) in a manner agreeable to nature. Older heterosexual couples as well.

Second, Olson's argument that the state's exclusion of polygamy and multiple marriages rests on questions of "exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody" is a red herring. Olson is arguing that polygamy and multiple marriages are more complex than a union exclusive to two people (again, traditionally a man and a woman). Hence, complexity is the basis for striking down efforts to legalize polygamy and multiple marriages? Just too complicated for the courts?

There are no concerns about "exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody" in divorce cases between a man and woman, many of which can be complicated or "messy?"

Since marriage (under the law) is contractual, and since polygamy is too complex for courts to unravel in terms of the aforementioned concerns raised by Olson, then any contract should be limited to two parties, because contracts entered into by multiple parties (say, businesses and organizations of any sort) may present complexities and complications far greater than a court can fairly adjudicate.

Courts routinely unravel disputes involving multiple parties in commerce, for example -- complex cases that beg no easy solutions. Courts are to dismiss laws that open up marriage to polygamists over concerns about complexity? If that reasoning underlies Olson's argument, in whole or part, it simply doesn't hold water. Polygamists can lawyer-up just like IBM and Microsoft. Courts can decide.

Olson is spouting nonsense -- nonsense that needs to be aggressively and vigorously challenged by every citizen who cares about America society, culture, marriage, and the family.

Don't leave the nation's future to the lawyers and courts to decide.