Thanks, but no thanks

The biggest surprise of the week was the announcement by Ted Olson and David Boies that they will represent a lesbian couple who are challenging the State of California on the grounds that the separate-but-unequal institution of domestic partnership, instead of full marriage, violates equal protection and due process clauses of the Fourteenth Amendment, creating a class of second-class citizens.

The surprise is that Federalist Society member Ted Olson is arguably the most respected conservative lawyer in the country, having defended Reagen in the Iran-Contra scandal, and having argued and won Bush v Gore before the Supreme Court. The other part of the surprise is that David Boies was the opposing attorney in Bush v Gore. The old rivals have teamed up to push same-sex marriage in the federal courts and, presumably, to the Supreme Court.

Which has created great consternation among supporters of gay marriage. Because they fear that it will go to the Supreme Court and lose. As I wrote before, a favorable decision would require the four liberal judges (and we don't yet know about Sotomayor) plus Kennedy. And, although he wrote the opinions on the last two major gay-issue decisions (and, yes, let his feelings show in both; see my blog of May 28), there is no indication that he would decide in favor of gay marriage.

My thought is that it's too risky at this point, both for a negative decision which would set back the cause a decade, but also that going the legislative route is the better course. The momentum that we are seeing in the northeast states is mostly a legislative one, not judicial.

Even George Will said as much this morning on This Week With George Stephanopolis. He said it is working it's way through the state legislatures in an orderly fasion, and no one seems to care; if you shift it to the courts, it will only derail that orderly process and create a backlash if judges impose it.

That was the other big surprise. He didn't actually say he favored it, but his tone of approval at the way the states are approving gay marriage strongly suggests it. George Will? Another conservative voice for gay marriage?

Ralph