Old Politics, New Bedfellows: The Olson/Boies Challenge to Prop. 8

Every now and then, gay politics makes strange bedfellows.

Conservative attorney Ted Olson and liberal attorney David Boies (last seen arguing against each other before the Supreme Court in Bush v. Gore) have joined forces to file a lawsuit opposing California’s ban on gay marriage. This whodathunkit romance is supposed to illustrate a point: that the issue of same-sex marriage transcends the familiar categories of liberalism and conservatism. In a recent op-ed in the Wall Street Journal, Boies asserts:

We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution’s guarantee of equal protection and due process to all citizens.

That sounds sweet and all. But there is a problem with the gauzy, feel-good sentiment that Boies embraces. It’s wrong.

The issue of gay marriage does not transcend ideology. Rather, it is precisely about ideology. It rather neatly encapsulates the contrast of how liberals and conservatives tend to see the world and approach public policy. On one side we have civil libertarians who don’t give a whit what people do in their romantic lives as long as it’s between consenting adults. On the other side we have conservative traditionalists who want their preferred social arrangements (often derived from cherry-picked biblical strictures) to be legally binding. It’s the live-and-let-livers against the live-as-I-sayers.

This fundamental divide is a major part of what our nation’s politics has been about for the last generation. Anyone who has failed to notice an entire movement of right-wingers dedicated to regulating people’s private behavior (from sodomy to birth control to pornography) simply hasn’t been paying attention. The effort to beat back this movement is, to some extent, what progressive politics has become. It’s not some supra-political matter, even if the occasional conservative like Olson decides to jump ship on one issue or another.

Even Boies’ suggestion that people of all political persuasions can agree on following the Constitution sounds quaint today. Has he not noticed that virtually the entire political class in Washington DC is against enforcing anti-torture laws if it means investigating top officials from the Bush administration? Has he not heard members of that administration repeatedly channel Richard Nixon’s infamous contention that “when the president does it, that means that it is not illegal”? Those who favor the rule of law have been tagged as radical leftists, not as mainstream Americans who have risen above the political fray.

Indeed, numerous issue areas that are supposed to be above politics have instead become knee-deep in the stuff. Take the humble idea that schools should teach science in the classroom. Or that sex education should convey facts. Or that our government “shall make no law respecting an establishment of religion.” Or, heck, that financial policy should be based on real-life numbers rather than the numbers that banks would like to pretend are real. We are at a point where it’s no longer clear that a large, vibrant conservative movement exists outside of policy areas that are supposed transcend conventional political divides. The constellation of interests that now define conservatism include being anti-science, anti-privacy, anti-Constitution, anti-transparency, and anti-equality-before-the-law.

Consider the various wings of the conservative movement; or, as Mitt Romney liked to call them when he was running for president, the three legs of the conservative stool. (Please, no scatological humor.) We’ve got the moral crusaders, who are the ones trying to keep the queers apart. Then we’ve got the kill-’em-allers—the foreign policy neocons who haven’t the slightest interest in Constitutional or statutory limits to executive power. And finally there’s the gimme-gimme-gimme crowd, which ostensibly stands for fiscal restraint (a genuinely conservative principle), but recently has been more interested in keeping the public from knowing what financial institutions are doing with the trillions of dollars we’re giving them.

So what exactly does it mean to suggest that gay marriage, or any number of other issues of the day, are beyond politics? It is, I submit, an absurdity. For the debate between the real and the surreal now dominates our political discourse. To neglect that fact is to be blind to one of the great political narratives of our era; and, crucially, to ignore the high level of organizing and firepower that progressives will need to defeat conservatism today.

To be sure, there are cleavages within the conservative movement. Some cultural conservatives are willing to support contraception and comprehensive sex-ed in the name of reducing the need for abortion. Some hawks who supported the Iraq war nevertheless oppose torture and executive secrecy. And many fiscal conservatives are as disgusted with the lack of transparency in our financial policies as liberals are. Reaching out to such conservatives is essential for the progressive movement to build broad coalitions and to win the policy changes that will make this world a more humane, egalitarian, and free place. If Ted Olson wants to join liberals on the gay marriage issue, that’s certainly better than if he doesn’t.

And of course, that’s likely the real reason Boies and Olson are joining forces: to give permission to anti-gay conservatives to change their mind and pro-gay conservatives to, um, come out of the closet. That’s a worthy effort. But along the way, we need not pretend that the skewed and surreal nature of our current political divide doesn’t exist. We cannot afford the luxury of thinking that merely claiming to be above politics will make it so.

Rather, we must engage the political debate head-on, recognizing that the future of America and the world will depend in large measure on the kind of politics that our fellow citizens embrace. Will it be a politics of tolerance, of compassion, of truth, of empowerment? Or will it be a politics of bigotry, of imposition, of imperialism in all of its protean guises? These are the questions of politics today. And politics, ultimately, is about choices.

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