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Lund:The Case Against Boies-Olson

Litigators Ted Olson (a Republican) and David Boies, (a Democrat) have joined together in a federal lawsuit challenging California's definition of marriage as a union between a man and a woman, and Professor Nelson Lund believes their position "has no support in Supreme Court case law, let alone in the Constitution."

"Their argument (in papers filed in court and in a recent op-ed signed by Mr. Boies in the Wall Street Journal) consist entirely of out-of-context snippets from Supreme Court opinions, nasty attacks on millions of American citizens, and astonishing assertions that an institution central to virtually every civilization in the history of the human race is patently irrational," says Lund.

"The fundamental purpose of marriage is to enable, encourage, and require biological parents, especially fathers, to take responsibility for their children," Lund explains. "Because this institution is a response to a phenomenon uniquely created by heterosexual intercourse, the very meaning and definition of marriage has always been inseparable from the problem it is meant to address."

The Boies-Olson position would redefine marriage, says Lund, replacing it with an institution whose purpose is entirely different.

The Case against Boies-Olson, National Review Online, September 24, 2009. By Nelson Lund.

"The notion that the fundamental features of an institution adopted by virtually every civilized society are based on nothing but moral opprobrium toward homosexuals is so weird that one wonders why serious people should even have to discuss it. Apparently, however, we’ve come a long way since the Supreme Court summarily dismissed such a claim in 1971. But here we are, so let’s point out the obvious.

"Only unions between men and women are capable of producing offspring, and every civilization has recognized that procreation is critical to its survival. The institution of marriage has been established in virtually every known human society, including our own, and officially recognized marriages have always been exclusively between men and women. This is not an accident or the result of some unreasoned prejudice. After the desire for self-preservation, sexual passion is perhaps the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally, and it does so only after a nine-month lapse. The result can be uncertainty about paternity or indifference to it by the father. If left unchecked, this would give many men little incentive to invest in the rearing of their offspring, and the ensuing irresponsibility would have made the development of civilization impossible."

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