Gay Rights & Megalomania: Marriage Fail

A trial in error

By Kevin Eggleston

illustration of a judge by Crystal White

The battle for gay marriage is likely headed for the Supreme Court. Not that you asked (because it would be illegal to tell), but this lowly gay rights soldier is pissed.

Theodore Olson, George W. Bush’s first Solicitor General, is a brave and talented man. Like a true World War I hero of the trenches, he’s an expert at defending barren terrain; he rescued President Reagan from the Iran-Contra battlefield and successfully argued Bush into the White House in Bush v. Gore. But now this renegade conservative soldier has found something substantial to fight for, and he’s planning to ambush the enemy.

Throughout January, Olson led an attack on California’s gay marriage-banning Proposition 8 in the epic showdown of Perry v. Schwarzenegger at the U.S. District Court in San Francisco. Olson’s team argued for comprehensive gay marriage rights, harkening back to the evolution-versus-creationism faceoff in the famous Scopes Monkey Trial of 1926.

A decision has yet to be announced as of press time but, District Court Judge Vaughn Walker is expected to overturn Prop 8, and opponents will likely appeal to the Supreme Court. Advocates hope the case could become a modern Loving v. Virginia, which legalized interracial marriage in 1967.

I’m not exactly over the rainbow about the prospects.

I have no qualms about conservative Olson arguing for the “liberal” position; gay marriage is not a “liberal” position, and I believe his intentions are honorable. But in cultural battles such as this, planning, organizing, and strategizing are vital. Legal-empire-building Olson marching gay marriage to this conservative Supreme Court is reminiscent of a heady Napoleon rushing into a wintry Russia. As in Nap’s case, ego conquered logic, and I fear ABBA may just crash Ted Olson’s victory party with a rendition of “Waterloo.”

The winner is largely up to Justice Anthony Kennedy, the Court’s latest indecisive, geriatric swing-vote. Although Kennedy has expressed pro-gay rights positions in the past — notably in the 2003 Texas consensual sodomy decision Lawrence v. Texas — he was also appointed by Ronald Reagan.

Instead of diving in head-first, I wish Olson had taken a more incremental path with baby steps such as in Gill v. Office of Personnel Management, which focuses on elements of the Defense of Marriage Act. Brown v. Board of Education desegregated public schools only after smaller victories primed the justices for sweeping change.

I used to have a “damn the torpedoes, full speed ahead!” standpoint on gay rights, but I’ve come to recognize the importance of strategy in ensuring long-term success. Though it seems there’s no stopping Olson, there is also no need to anoint him a hero of the gay rights movement. This man’s heart is in the right place, but his ego is out to make history. He’s gambling with millions of peoples’ futures before an antagonistic Court.

An ambush on the justices was a move of passion, but it lacked sweet reason, and may be headed for a cold, bitter end.

Illustration by Crystal White