What Ted Olson Doesn’t Get About Marriage

[Valin]

First Things:

R.R. Reno

3/28/13

 

During his oral argument before the Supreme Court, Ted Olson observed that marriage is a “fundamental right.” This is a confused statement.

 

It’s true that marriage is very important, fundamental, in fact. It’s part of the DNA of society, and for most people the path in life most likely to bring stability and happiness. And so government should not have an unlimited capacity to muck around with marriage. It’s too important for politics, too fundamental for us to turn it into a policy that might or might not be implemented.

 

In other words, people have a “right” to live in a society in which marriage is a widely accessible, stable, functional institution.

 

But that’s not really what Olson and other proponents of “marriage equality” mean. They’re saying it’s more individualistic: each individual has a “right” to whatever definition of marriage suits him, which isn’t the same as our right to marriage as a stable, functional institution, and may in fact be at odds with it. That’s because to secure Olson’s sense of “fundamental right,” government must in fact muck around with marriage to make it plastic enough to guarantee that everyone can have the kind of marriage that suits him. In so doing, marriage changes. It’s no longer a pre-political institution the state protects and advances so as to secure our fundamental right to the possibility of marriage as a stable, functional institution. Instead marriage becomes a creature of politics, which means vulnerable to definition and re-definition (and therefore instability) as political circumstances vary.

 

(Snip)