Michael Hannon offers a helpful interjection into the roiling same-sex marriage debate:
Think back to the embarrassing and obnoxious response your teacher used to give when a student would ask, “Can I go to the bathroom?” “I don’t know,” she would say, “Can you?” The child’s mistake lay in confusing “Can I?”—an interrogative dealing with possibility—with “May I?”—which pertains rather to permissibility. Instead of asking whether he was allowed to go to the bathroom, the confused pupil accidentally asked if he was capable of that feat at all. Yet childhood errors have a way of coming back to haunt us, and that is precisely what has happened in the debate over redefining marriage.
Olson, Boies, and their allies have systematically confused a debate about metaphysical possibility with one about political permissibility. They are arguing that our government ought to let same-sex couples marry, and they are convinced that their opponents are arguing over the same point, just on the other side of the issue.
But that is a gross mischaracterization of the disagreement. For our position is not that the government should refuse to let such couples marry, but rather that the government is utterly impotent with regard to this question. Our response to same-sex couples desirous of marriage is not “You may not,” but rather, “You cannot.” We do not seek to bar anyone from marriage; we just believe marriage is a union that is necessarily and by its very nature heterosexual. Maybe we are right, or maybe Olson and Boies are. But regardless, the question to be settled in this debate is not whether to bring a latent potency into actuality, but whether there is in fact any potency present in the first place.
Hannon also discusses Ted Olson and David Boies’ (unlikely) plan to win Scalia’s vote for same-sex marriage.