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Theodore Olson has written a cover story for Newsweek magazine with the title “The Conservative Case for Gay Marriage.” You may remember Ted Olson as an Assistant Attorney General (Office of Legal Counsel) in the Reagan administration. While serving in the Reagan administration, Olson defended the President during the Iran-Contra affair. Olson successfully represented George W. Bush in the Supreme Court case Bush v. Gore in the highly contested 2000 Presidential election. He was married to fellow-conservative and author Barbara Olson who was a passenger on the hijacked American Airlines Flight 77 that crashed into the Pentagon on September 11, 2001.

In 2009, Olson joined with David Boies to bring the federal lawsuit Perry v. Schwarzenegger in an attempt to overturn Proposition 8, the California state constitutional amendment that bans same-sex marriage. Boies was Olson’s adversary in Bush v. Gore. So with all his conservative credentials, Olson is using his legal talents to push for homosexual marriage. He claims that his support “rests on a lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, and on [his] rejection of what [he sees] as superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights.”

Olson’s system of morality is based on observing what people do. If enough people engage in certain behavior, then that behavior is determined to be normative. Today’s defenders of homosexual behavior have, in the words of Daniel Patrick Moynihan, “defined deviancy down”[1] so that what was morally wrong thirty years ago is acceptable, or at least tolerated, behavior today. Robert Bork explains the phenomenon:

Emile Durkheim, a founder of sociology, posited that there is a limit to the amount of deviant behavior any community can “afford to recognize.” As behavior worsens, the community adjusts its standards so that conduct once thought reprehensible is no longer deemed so.[2]

At the same time, what was considered morally normal thirty years ago is now “portrayed as oppressive and shot through with pathologies. ‘As part of the vast social project of moral leveling.’ [Charles] Krauthammer wrote, ‘it is not enough for the deviant to be normalized. The normal must be found to be deviant.’ This situation is thoroughly perverse. Underclass values become increasingly acceptable to the middle class, especially their young, and middle-class values become increasingly contemptible to the cultural elites.’”[3]

Because Olson does not have a moral place to stand outside himself and his observations of what people do, he has succumbed to the belief that what people do in concert has moral legitimacy. Like many of the new conservatives, Olson takes the “radical individualism” approach to morality, law, and politics. “[T]he radical individualist fights against cultural institutions that try to regulate and constrain his behavior, such as the Church, the family, schools, and so on. These are institutions that have exerted control over society, and help to keep order in society by teaching proper behavior, and exerting social control.”[4]

Olson tipped his hand a few years ago when he defended “under God” in the Pledge of Allegiance by declaring that the phrase has no religious meaning. “Olson argued that the phrase is viewed as an ‘acknowledgment’ of religion’s role in the lives of America’s founders.”[5] It’s not that our nation is actually under the sovereign rule of God, but only that people once believed that it was. Olson’s argument is common:

Many pledge proponents offer secular justifications to fit Supreme Court rulings. They claim “under God” isn’t any sort of religious exercise or prayer but simply a factual acknowledgment of the nation’s past heritage of faith, for patriotic rather than religious reasons.[6]

If this is true, then why not have the Pledge read, “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, which people used to believe was one nation under God, indivisible, with liberty and justice for all.” As we’ll see, Olson wants to keep God out of the picture when evaluating sexual behavior.

Olson builds his case for homosexual marriage by an appeal to the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Olson wants the right of homosexuals to “pursue happiness” but without the moral restrictions of the Creator who sets the limits of what a person chooses that makes him happy. All types of behaviors make people happy. Just because a person pursues that happy behavior does not make that behavior morally acceptable in the sight of God, and in the end, only God’s sight matters. In that same Declaration that Olson appeals to, God is said to be “the Supreme Judge of the World.” He is not a judge in the abstract. The signers believed that God judged in particular ways. They understood that you can’t have “unalienable rights” without a Creator, and you can’t make a moral statement against civil tyranny without a Supreme Judge. The same is true of other behaviors.

Keep in mind that Olson is supporting homosexual marriage. Marriage is a creation ordinance (Gen. 2:20–25; Matt. 19:4–6) that must be protected by the State not redefined by the State. There is no such thing as marriage without God. Homosexuals want God’s blessing of their union, but they don’t want God’s definition of marriage. “The United States Supreme Court,” Olson argues, “has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution.” The Supreme Court may have said so, but the Constitution doesn’t say a word about marriage. In fact, there is little about morality in the document. You have to look elsewhere for it. The Constitutional framers assumed, wrongly in my opinion, that an outside body of law would define morality. Most of our founders adopted William Blackstone’s version of law. We see it the Declaration’s language of “the laws of Nature and of Nature’s God”:

Thus when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be.

* * * * *

This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are in validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by considering, what method will tend the most effectually to our own substantial happiness.

* * * * *

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered [permitted] to contradict these.[7]

Blackstone’s view was made obsolete by Charles Darwin and his theory of evolution. An evolving material universe inevitably results in an evolving morality. For Olson, marriage is now a “civil bond” to be defined exclusively by civil authorities. In a world that has accepted the tenets of evolution, the definition of marriage is as pliable as Silly-Putty: Three men? Three women? Two women and one man? Adult, consenting father and son? Adult, consenting father and daughter? Where does it end?

Olson objects to any appeal to religion as a prohibition against homosexual marriage. “I understand, but reject, certain religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural; and I take strong exception to those who argue that same-sex relationships should be discouraged by society and law.” There you have it. Once you get rid of “religious teachings,” as Arthur Leff has stated, “everything is up for grabs.”[8]

Olson compares homosexual marriage to past racial discrimination laws. “We once tolerated laws throughout this nation that prohibited marriage between persons of different races.” Yes we did. But racial identity is not the same as sexual behavior. Former Secretary of State Colin Powell stated that it is inappropriate to link homosexual behavior with the civil rights movement: “Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.”[9] Ken Hutcherson, a prominent and well-respected Black pastor from the Seattle area states it well: “It has been said loudly and proudly that gay marriage is a civil rights issue. If that’s the case, then gays would be the new African-Americans. I’m here to tell you now, and hopefully for the last time, that the gay community is not the new African-American community.” A majority of Blacks would state it like this: “Don’t compare your sin to my skin.”[10]

Olson equates homosexual behavior to heterosexual behavior. I dare him to try it in a public debate. I would like to see him stand up in a public setting and defend homosexual acts as equal to heterosexuality. When a man can get pregnant,[11] then give me a call, and I’ll change my view. Olson argues that “Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual. To a very large extent, these characteristics are immutable, like being left-handed.” If you believe the scientists, all sorts of diseases and behaviors are said to be genetically determined—from prostate cancer to rape (see here). Does that make them normative and morally acceptable? Then there is the new study that says behavior can affect our DNA.

Theodore Olson may have used dazzling legal arguments to save George W. Bush’s electoral bacon in 2000, but his arguments in support of homosexual marriage are less than persuasive unless you already agree with him. Actually, it’s embarrassing to watch a talented lawyer stumble so badly. Barbara would be disappointed.


[1] Daniel Patrick Moyniham, “Defining Deviancy Down,” American Scholar (Winter 1993).
[2] Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (New York: Regan Books, 1996), 3. [3] Bork, Slouching Towards Gomorrah, 3–4.**
[4]** John Eberhard, “The Culture Wars: Part 1: Introduction,” CommonSenseGovernment.com (April 28, 2005)
**[5]** Richard Willing, “High court grills Pledge plaintiff,” _USA Today_ (March 25, 2004), 3A.**
[6]** Richard N. Ostling, “Pledge ‘under God’ battle makes for unusual alliances,” _The Atlanta Journal-Constitution_ (March 13, 2004), B5.**
[7]** William Blackstone, _Commentaries on the Laws of England_, 4 vols. (Chicago: The University of Chicago Press, [1765–1769] 1979), 1:38, 41, 42. **[8]** Arthur Allen Leff, “Unspeakable Ethics, Unnatural Law,” _Duke Law Journal_, 1979:6 (December 1979), 1249. **[9]** Quoted in _World_ (September 26, 1992), 5. **[10]** Quoted in J. Matt. Barber, “Counterfeit Marriage and Its Counterfeit Movement” (November 17, 2008): http://www.cnsnews.com/news/article/39465
**[11]** The so-called pregnant man is really a woman. She didn’t get pregnant through homosexual sex, if you know what I mean.