Olson's Fallacy

If you watched Fox News Sunday with Chris Wallace yesterday, then you probably saw the segment with Ted Olson. Ted Olson is a conservative who has argued (55) cases before the Supreme Court and spoken out against judicial activism. Therefore, it was quite a shock to learn that it was he who successfully argued the case in California to overturn Prop 8's ban on same-sex marriage. A move which most conservatives would consider to be judicial activism or legislating from the bench.

It was a very interesting interview, and Olson made a compelling case. He stated that marriage is a constitutional right as determined by 14 Supreme Court rulings. He contends that if marriage is a right, then it should be applied equally under the law, which also makes sense. According to Olson, same-sex partners deserve the same "happiness" as everyone else.

Apparently it is Olson's opinion that overturning the Prop 8 ban was not an act of judicial activism, because voting on an issue does not automatically make it correct. He then cited cases where people voted to ban inter-racial marriages, and said that the Supreme Court was clearly correct in overturning such laws.

I must admit that Olson was very persuasive, and even found myself questioning whether or not I should reconsider my position on the matter. Apparently Chris Wallace was impressed as well. At the end of the segment, Wallace said that after Olson's appearance there, he couldn't understand how Olson lost any cases before the Supreme Court. If you didn't see it, you can watch the exchange here...

http://www.youtube.com/watch?v=EJwSprkiInE

But after further reflection on the subject, it suddenly occurred to me that there is one glaring fallacy in Olson's line of reasoning, that is, that discrimination on the basis of sexual orientation is equivalent to discrimination on the basis of race, ethnicity or gender. Obviously, that is not true.

Characteristics such as race, ethnicity and gender are traits acquired at birth, and over which a person has absolutely no choice. A person has no say about what gender or ethnicity he or she will become. They can only learn about it after they are born. Therefore, discrimination on the basis of race, ethnicity or gender is patently unfair, because the person being discriminated against had absolutely no choice in the matter of their birth. They are being discriminated against for something which is no fault of their own.

Not so for sexual orientation. Sexual orientation is ALL about choice. Sexual orientation is a conscious decision on the part of an individual to participate in one form of sexual behavior in favor of another. No one "forces" gays and lesbians to participate in that type of sexual behavior. Even if they are psychologically "predisposed" to it for some reason, they can still "choose" to refrain from doing so if they wish.

And for those who would suggest that homosexuality is rooted in genetics, that is a completely unsubstantiated claim. No scientist has yet found the "homosexual" gene, and I don't think they ever will. Sexual orientation is a "preference", and as such, it does not qualify for protected status on the same grounds as race, ethnicity or gender. [Trust me, very few African-Americans would consider the gay rights movement to be right up there with the civil rights movement.]

Allow me to go even further with some analogies. The mere existence of thieves who "prefer" to participate in the "behavior" of stealing, and who may derive much "happiness" from it, does not provide a sound legal argument for the legalizing of robbery. The mere existence of sadists who "prefer" to participate in the "behavior" of inflicting pain on others, and who may derive much "happiness" from it, does not provide a sound legal argument for the legalizing of torture. Likewise, the mere existence of gays and lesbians who "prefer" to participate in the "behavior" of homosexuality, and who may derive much "happiness" from it, does not provide a sound legal argument for the legalizing of same-sex marriage.