Gay Marriage on Trial: Dissecting 'Moral Disapproval'

NEWSWEEK correspondent Eve Conant is blogging this week from inside the California Supreme Court as it hears arguments on the constitutionality of same-sex marriage.


Theodore Olson, in his opening statement is arguing that the Supreme Court has described marriage as a basic civil right, one associated with the right to liberty and intimate choice. "In short, in the words of the highest court in the land, marriage is the most important relationship in life."

Judge Vaughn Walker is pressing Olson on what disabilities they operate under as domestic partners as opposed to being married. Olson promises to detail those in the coming days. Walker asks: "But are those difficulties because of society or the law?" Olson pauses, "They are so closely woven they cannot be extracted from one another," that by sanctioning marriage only as between a man and a woman, the state creates a societal atmosphere of nontolerance.

Walker continues to press Olson during his remarks. He says "all kinds of laws are based on some kind of moral understanding that is widely shared." Olson agrees but says that if moral understanding or disapproval is based on sex or religion, for example, it cannot be the basis of law. Many laws are based on moral disapproval, says Olson, "but when based on characteristics of an individual it is not constitutional."