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The Supreme Gamble Gay Marriage Advocates Are Taking

By: Devona Walker (Add to your loop)

Gay marriage, or at least California's controversial ban on gay marriage, Proposition 8, is headed towards the Supreme Court. It will be litigated by byTed Olson, a staunch conservative and likely one of the most powerful litigators in the free world and David Boise, a former adversary. It's an intriguing narrative. But it is also a "supreme" gamble.

Last November, the whole nation was swept up by change. College kids were voting. Blacks and Latinos, even in South Los Angeles, were getting along. Middle-aged white ladies were crying tears usually reserved for Kennedies every time Barack Obama opened his mouth. It was an exciting time. But in the last year: Gay marriage failed in California and Maine and a tea-bagging Republican, Scott Brownwon Ted Kennedy's Massachusetts Senate seat. And on Thursday, the Supreme Court rolled back campaign finance reform laws. It should be blatantly clear by now that this is not Libertopia. This is America, the same place that elected George W. Bush twice (regardless of the nonexistent weapons of mass destruction and Abu Graib).

In the hands of the court, not the people

I understand the logic. Gay marriage advocates have tried to take their case to voters and have lost. Gay marriage is a civil rights issue and historically the courts are where this country has made such strides. The majority should not, simply by virtue of being the majority, be able to deny freedoms to the minority. The merits of the case appear sound. Olson and Boise are formidable allies, and they have formulated an impressive conservative case for gay marriage.

“Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize... At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership,” said Olson, explaining why he took the Prop 8 case.

“We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities.”

All that's missing is the baseball and apple pie. It’s enough to make a guy like Andrew Sullivan cry, I’m sure.

But here’s the thing: We all now know Barack Obama is no magic negro. Guess what? Ted Olson is no Superman neither. Olson and Boise will still have to argue this case before the most staunchly conservative-dominated Supreme court in recent history, and as he freely admits his “fellow conservatives” have an almost knee-jerk hostility to gay marriage.

The conservative majority on the court

George W. Bush appointed uber conservatives John G. Roberts and Samuel Alito. His father appointed the even more conservative Clarence Thomas. Ronald Reagan appointed Anthony M. Kennedy and Justice Antonin Scalia, the remaining two of this conservative judicial majority.

Anthony Kennedy is the only one of the five even remotely open to the notion of gay rights, and he’s already shown his hand. In 1996, he ruled against denying gays the right to bring local discrimination claims in Colorado. He ruled against criminalizing “homosexual sodomy” in Texas. But even as he did it, he noted that it did not require the government to formally recognize gay relationships. Then, later, he sided with the conservative judges upholding The Boys Scouts of America’s ban on gay scoutmasters.

The "conservative five" ruled against partial-birth abortions, against bussing and against student free speech -- ironic since it was on the basis of free speech they just opened the door for rampant corporate influence peddling in the election process. They obliterated every challenge to President Bush’s faith-based social services initiative, effectively raping the coffers of real social service and prevention groups. They sided with developers over environmentalists, with employers over employees in terms of discrimination claims (Lilly Ledbetter case). They have consistently limited the rights of prisoners in death penalty appeals. They have limited the ability of prisoners to have DNA tests conducted, even if those tests could exonerate the prisoner.

"It is intolerable for the judicial system to treat people this way," wrote Justice David H. Souter to John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, referring to a lawsuit thrown out by the “conservative five” because legal papers were filed late, the result of a judge’s error.

What are the chances an unfavorable ruling on gay marriage will be re-litigated or that the issue will ever see the light of day again in our lifetimes? Consider this: Roe V. Wade was in 1973. Since, pro-lifers have killed abortion doctors, bombed clinics, assaulted women. They have lobbied. They have pollsters. What don't they have? The slightest chance of overturning Roe. V. Wade.

There is a very real finality about the Supreme Court. There is a very scary reality when it comes to “judicial precedence.”

Devona Walker is's senior financial/political reporter and blogger. She can be reached at [email protected].