The American Spectator has a point by point reply to Ted Olson’s unpaid advertisement in last week’s Newsweek. Many of Jeffrey Lord’s arguments use the analogy with polygamy. Every argument made today for removing the gendered requirement for marriage can be used tomorrow to remove the “two persons” requirement for marriage. His bottom line argument is one that we don’t hear often enough: the analogy with abortion, and the political convulsions Roe v Wade has caused.
Quite aside from the issue of judicial activism, Olson is ironically doing damage to his cause — not helping it. If the abortion issue has taught anything, it is that judicial fiats do not “settle” an issue. The very fact that abortion is still the divisive hot button issue it is — almost forty years after Roe v. Wade — is nothing if not testament to the inability of “pro-choice” activists to convince their fellow citizens and reach consensus on the issue. Indeed, Brown v. Board of Education was in fact about undoing the judicial activism that was Plessey v. Ferguson, a piece of judicial activism that in fact sought to undo if not override the essence of the post-Civil War 13th, 14th, and 15th amendments, not to mention the civil rights laws that immediately followed. All of which were passed by the will of the American people through the legislative process of the federal and state governments. Indeed, the landmark civil rights laws of 1964 and 1965 succeeded as they did because, contrary to the Olson strategy on gay marriage, they were the result of legislative, political, and popular consensus.
If you think the Roe v Wade controversies are bad, you ain’t seen nuttin’ yet. Just wait until the courts try to impose a redefinition of marriage, and everything that comes along with it.