Ted Olsen on Gay Marriage and Race

Ted Olsen was on NPR's Diane Rehm show today talking about his book and his legal crusade for gay "marriage."  I didn't get to catch the whole thing but I was struck by these two comments:

We studied what the Supreme Court had said. We sensed that the Supreme Court was ready to uphold the right of citizens. The other part of the history of the Supreme Court is to protect classes of individuals who have characteristics that are immutable. It might be race or it might be illegitimacy or something like that. To put them in a box and treat them differently, the Supreme court abhors that kind of thing. So we looked at these precedents.

Race is perhaps immutable (though Michael Jackson comes to mind as at least raising questions about its immutability), but homosexuality?  If that's true, then no homosexuals could become straight or vice versa.  Now, granted that the empirical evidence so far suggests that few homosexuals can become straight, nonetheless, some at least claim to have done so.  So homosexuality does not appear to be immutable.  But this is all beside the point and is really a red herring.  Even if homosexuality is immutable, that's irrelevant to whether the government should have an interest in recognizing "marriage" between homosexuals (which was the main point of the discussion at hand).

What they said over and over again, our opponent says, [marriage has] always been that way. But you could use that to deny people the right to marry someone of a different race. That's what the Supreme Court faced in 1967. Traditional definition of marriage, it's always been between a man and a woman. Traditional definition of marriage before the Civil War would not allow slaves to get married, would -- denied rights to women in a marital relationship. So the fundamental right is -- cannot be denied because it's always been that way.

There are two issues that Olsen runs together and confuses.  The one is about the definition of "marriage"--the issue of what marriage IS.  The second is about what legal rights have been and should be afforded to people.  It is just not true that anti-miscegenation laws which prohibited whites and blacks to marry, or laws which did not allow slaves to marry, and so forth had anything to do with the traditional DEFINITION of marriage.  In fact, such laws implicitly RECOGNIZED the traditional view since they acknowledged that black and whites, slaves, etc. could ENTER INTO MARRIAGE.  Those laws were enacted to try to discourage it and such laws gave certain people legal rights w/respect to marriage but not others.  But they did nothing to change the definition of marriage.  Proponents of such laws--as far as I'm aware--were not arguing that the government should not endorse such marriages because they weren't REALLY MARRIAGES in the first place.  Gay marriage opponents (at least some of them), however, are arguing (in part) that the government has no place in recognizing gay "marriages" because they are not really marriages; to recognize that they are is to discriminate against those who hold the traditional view and to revise what "marriage" means in public discourse (even if we're rarely told what it does mean by the revisionists).