Gay Marriage Makes Strange Bedfellows

Two former foes have combined forces in an unlikely alliance aimed at striking down Proposition 8 in California. Ted Olson and David Boies, who were on opposite sides of Bush v. Gore in 2000, which ultimately decided the outcome of the 2000 Presidential race, are challenging the California Supreme Court decision, which upheld the ban on gay marriage in California.

While some in the battle for marriage equality appear to be not only suspicious of Ted Olson's ulterior motives but also fear that pushing the case in federal court will harm gay marriage, others continue to scratch their heads at the unlikely pair, the Odd Couple of the Law.

Blanca has put on her legal cap, which really nothing more than a nightcap in the middle of the afternoon--here's to the three-martini lunch--and analyzed what is behind this legal tag team.

First, I do not believe that Ted Olson is interested in gay marriage, although I think he looks pretty gay, if you ask me, even if he is now on his fourth wife. On the contrary, I believe the conservative former Solicitor General is more interested in derailing gay marriage by pushing it through the federal courts, and ultimately the Supreme Court of the United States, before sufficient ground work has been placed, and before Obama has the chance to replace some of the more fossilized Supremes appointed under Ford and Reagan.

Second, I think those fearing the Supreme Court will ultimately uphold Proposition 8 do not understand how little damage this does to gay marriage. If the Justices agreed with the decision of the California Supreme Court, no state currently permitting gay marriage would be forced to then ban the practice. The decision would lie completely with the States, and the status quo would be maintained.

Third, there is no reason to believe the United States Supreme Court would even hear the case. The last time this issue was before the court was 1970, and the Court refused to even hear the case.

Fourth, even if the Court did decide to hear the case, there is little reason to believe that the outcome would vary much from Lawrence v. Texas, in which the court decided 6 to 3 to strike down sodomy laws. Of course three of the Justices hearing that case in 2003 will no longer be on the bench by the time an appeal of this case reaches the highest court in the land. O'Connor has already retired, replaced by Alito by President George W. Bush. Renquist died, and was replaced by Roberts, also by President George W. Bush. Souter is retiring, and presumably will be replaced by Sonja Sotomayor, whom President Barack Obama assures the left is just more of the same as Souter, who turned out to be a bit of a progressive after he was appointed by President George H. W. Bush. But essentially the mix of the court will remain as it did under the sodomy case, with Kennedy being the swing vote.

Fifth, and most importantly, I believe in elaborate ruses. Granted the Right has been rudderless for several years, and even when we were stearing in one direction or the other, those at the helm were generally drunk with either power or enough near beer to knock out an elephant. But this may ultimately be just an orchestrated way to place the matter of gay marriage back in the hands of the Congress in the form of a federal gay marriage ban.

President Obama has pledged to overhaul or weaken The Defense of Marriage Act (DOMA), even though he seems to no longer support a complete repeal. Even if DOMA remains, if the Court decides that state bans against gay marriage are unconstitutional, then the only recourse for conservatives will be a federal amendment to the United States Constitution banning same-sex marriage.

Suddenly there will be new life in the Conservative Movement, which lately has resembeled more of a bowel movement. But time is of the essence, and this simple fact shows why Ted Olson is bringing this case before the federal appeals courts at this time.

Put simply, old folks are dying out. Younger people support gay marriage much more than older people. And as the older folks bite the big one, and as more people live with the reality of gay marriage in states like Massachusetts, Maine, Vermont, Connecticut, and as more states move closer to legalizing the practice, such as New Hampshire, New York, New Jersey, Rhode Island, Maryland, Washington D.C., Hawaii, California and Illinois, there will be less fear of gay marriage, and therefore less support for a federal ban.

Pat Robertson is not getting any younger. Jerry Falwell is dead. That creepy dude who wants to shower naked with your son is now basically powerless. Cultural shifts and time are not on the side of those who would like to keep gay marriage illegal.

It really is just a matter of time. Just as merely 42 years ago Barack Obama's mother and father could not have been married in Virginia, 42 years from now Mary Cheney will be married to Heather Poe, and they two will be torturing people from an undisclosed location as Vice President and Second Lady of the United States.

Sphere: Related Content