So, the other day I wrote about the Supreme Court's decisions in cases about gay issues and tried to explain through those cases that the arguments for marriage equality do exist and that Perry v. Schwarzenegger, the Olson/Boies Prop. 8 case, has a very good chance of success - that it's not some rich lawyers with big egos trying to promote fringe issues. It's a very winnable civil rights case for us, and it's exciting.
I mentioned that John Roberts did pro bono work in the 1996 landmark gay rights case Romer v. Evans - which made it a lot harder to pass laws against a community based on animus toward that community. The majority opinion, written by conservative Justice Anthony Kennedy said a rational reason is required for a law beyond dislike (or hate) of a group.
Interestingly, Roberts was specifically recommended because he's a conservative and could help sway the conservative members of the court by fashioning arguments to appeal to them.
The lead plaintiffs' lawyer in the Romer case, Jean Dubofsky, said Thursday that she had sought out Roberts at the recommendation of Walter Dellinger, then a senior official in the Justice Department under President Bill Clinton.
Dubofsky, a former justice of the Colorado Supreme Court, said she had been specifically seeking a conservative who could help her to anticipate objections from some of the court's more conservative members, like Justice Antonin Scalia and Chief Justice William Rehnquist.
[...]
"He told me, 'You have to know how to count, and to get five votes, you're going to have to pick up the middle."'
He then proceeded to coach her and ask her questions about the case, giving her input on explicit answers she should give to convince them. He suggested that the lawyers should say that there's no need to overturn their previous ruling in Bowers v. Hardwick, from ten years earlier in 1986, in order to rule their way in the Romer case.
It turns out that the equality side won the Romer case, and it is considered one of the major victories for gay rights. The majority opinion was forcefully written by the conservative Justice Kennedy. Scalia wrote the dissent, with others joining, and said that gays are "a politically powerful minority" and opined on his idea of sexual morality.
Now, we have Ted Olson, a conservative lawyer who was in the Bush administration, involved in Perry v. Schwarzenegger, the Prop. 8 case. Olson has written before about why he's involved in this case and how he will try to convince conservatives of the legality of gay marriage.
He argues outright that conservatives almost violently oppose same sex marriage and it's irrational.
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. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. 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. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
In essence, his view is that marriage means gay acceptance of and conforming to conservative ideals to an extent. This is annoying, but realistically, to conservatives who are concerned with imposing their morality on others, this argument coming from conservatives could be pretty effective.
In his three-page op-ed, "The Conservative Case for Gay Marriage", he discusses all the arguments against gay marriage and explains why they're incorrect, from a conservative point of view.
When this case eventually reaches the Supreme Court, his involvement could be what gets some conservative votes.
