Same-Sex Marriage Litigation

Many state and local governments have taken steps to expand rights for those of us who are lesbian, gay, bisexual or transgender (LGBT) in recent years. These have included legislative actions and court decisions.

The federal Supreme Court rendered the so-called sodomy laws unconstitutional in 2003, as I described here. But no branch of the federal government has made a similarly sweeping move on the issue of discrimination against LGBT people in employment and other areas of life. And on another of the big issues, same-sex marriage, the political branches moved in the other direction. In 1996, entrenched in their heterosexual bunker, they held off the barbarian LGBT hordes, by passing the Defense of Marriage Act, which was signed by then-President Bill Clinton.

A few states, through judicial or legislative action, or some combination thereof, have legalized either same-sex marriage or civil unions.

Now, a case is making its way through the federal courts, that could give the U.S. Supreme Court a basis for striking down state and federal restrictions on same-sex marriage.

One of the most talked-about aspects of the case is that Ted Olson, who was U.S. solicitor general in George W. Bush's administration, is one of the lawyers advocating the pro-same-sex-marriage viewpoint. Some LGBT activists, who question the tactical wisdom of pursuing this litigation at this time, have even accused Olson of deliberately trying to sabotage the cause.

But it seems as though Olson is a genuine supporter of LGBT rights.

That all ties into the confusing ways in which the American body politic uses the word "conservative". (I started writing about that here, and then got distracted.) Religious-right defenders of the traditional concept of marriage are lumped together with libertarians, whose concept of allowing rights as long as they don't harm the interests of others fits in very well with support for same-sex marriage. (See the New York Times article to which I've linked, above, regarding the inability of even the strongest opponents of same-sex marriage to cite any potential harm to others.)

Another interesting angle to the suit is that David Boies, who was Olson's adversary in state and federal Supreme Court arguments about the 2000 Florida dispute between Bush and Al Gore, is working with Olson on the marriage case.

Further evidence, if any were needed, of how mainstream the LGBT rights position has become. Even if the Pentagon doesn't ask, go ahead and tell them.