Ted Olson: Prohibiting Polygamy Not Like Prohibiting Same-Sex Marriage

March 26, 2013 - 4:37 PM

Ted Olsen

Ted Olsen (AP Photo)

(CNSNews.com) – One of President Barack Obama’s Supreme Court appointees was the one to ask a pointed question of Ted Olson, the attorney arguing in favor of overturning Proposition 8, the California law that reserves marriage for the union between one man and one woman.

“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?” Justice Sonia Sotomayor asked.

“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?” she asked.

“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,” Olson said. “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,” Olson said.

Olson said banning gay marriage was “picking out a group of individuals to deny them the freedom (the court) said is fundamental.”

Hollingsworth v. Perry concerns Proposition 8, a 2008 ballot initiative to amend the California constitution to define marriage as a union between one man and one woman.  Gay rights activists challenged the law, and an appellate court ruled it unconstitutional. When the state refused to defend the law, pro-family organizations and Prop 8 advocates asked the Supreme Court to hear the case.

On Wednesday, the high court will hear a challenge to the federal Defense of Marriage Act (DOMA), which was enacted in 1996 and defines marriage for federal purposes as the legal union of one man and one woman, and asserts that no U.S. state or political subdivision must recognize a same-sex marriage from another state.