Former United States Solicitor General and leading conservative attorney Ted Olson appeared on Fox News Sunday with Chris Wallace in the wake of the historic ruling by Judge Vaughn Walker which overturned California’s ban on same-sex marriage, commonly known as Proposition 8.

While Wallace’s line of questioning was aimed at striking a contrast between Olson’s record as a conservative and his work opposing Proposition 8 in court, Olson stood firm on the core tenet that marriage, and in this matter, same-sex marriage, was a fundamental right grounded in the Constitution. Olson made it a point to recognize that the Supreme Court has, when it deemed necessary, overturned actions by states.  For example, he cited a case where, by popular referendum, California established a right to discriminate in the sale of real estate. He also cited Loving v. Virginia, which struck down bans on interracial marriage.

Wallace brought up the argument articulated by many opponents of marriage equality, that because certain states were moving forward legislatively the courts should wait until the matter is resolved in that manner. Olson was quick to respond that:

Well, would you like your right to free speech? Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do? These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I’m very, very pleased about that. … We can’t wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated.

At the end of the interview, Wallace underscored Olson’s credentials for articulating a conservative case for marriage equality. “Mr. Olson, we want to thank you so much for joining us today. We’ll keep following your lawsuit. And I gotta say, after your appearance today, I don’t understand how you ever lost a case in the Supreme Court, sir,” he said.

While many expected Judge Vaughn Walker’s ruling in San Francisco invalidating California’s ban on same-sex marriage to cause an uproar between the political parties, it served more to underscore that the parties and candidates are focusing on economic issues instead of ‘wedge’ social issues.

At the Republican National Committee’s Summer Meeting, California Republican Party Chairman Ron Nehring told the New York Times, “This election needs to revolve around five issues: taxes, spending, the economy, jobs and debt.” The Indiana Republican Party Chairman went further, arguing that focusing on social issues might play in Democrats’ favor. “Can we declare a truce on some of the other issues unrelated to the economy?” he said.

Stereotypical roles seemed to be reversed as President Obama’s chief strategist, David Axelrod, reiterated White House opposition to marriage equality. This drew a quick response from Andrew Sullivan, a gay blogger on The Atlantic’s website, who said that “The whole point of this ruling is to contradict [Axelrod's] statement. If the president does not support my right to marry, then he does not support my equality, according to the ruling.”

The decision to stay away from marriage as a ‘wedge’ issue is one echoed by the national GOP, as RNC Political Director Gentry Collins remarked in an interview with Politico that “Every indicator that I have … generally speaking is that economic growth and job creation are the tandem issues that will be the principal drivers of voter decision at polls. What I’m encouraging candidates to do is go out and run on an economic platform, a jobs platform.”

Larry Sabato, also in Politico, put it simply: “A modern party does not want a campaign that’s built around a crusade on gay rights. … it won’t work, for one thing, and for another, it’s so controversial that it would obscure the nonpartisan appeal of the economic issue.” He added, “I don’t think that moderates and independents get very excited about this.”

Dan Balz, in the Washington Post notes that:

At another time, the ruling overturning California’s ban on same-sex marriages might have been the political equivalent of an earthquake. Instead, the relatively restrained response underscores both the singular economic focus of this year’s elections and the shifting politics of one of the country’s major social issues.

Neither Democrats nor Republicans appear eager to try to turn the California decision into a November rallying cry. Many Democrats who otherwise strongly support gay rights are still reluctant to advocate for same-sex marriages, President Obama being the most prominent example. Many Republicans believe their conservative base is already well motivated. For now, they prefer to stay away from the kind of wedge-issue politics that were once a hallmark of their campaigns.

Political parties and elected leader’s attitudes towards same-sex marriage can be directly seen as a reflection of a populace that is much more accepting. In a May 25, 2010 Gallup poll, 52 percent of Americans voiced their support for same-sex relationships, with only 43 percent registering opposition. This is remarkably different than 2004, when 54 percent opposed that right.

Log Cabin Republicans member Ric Grenell opines in the Huffington Post about the dynamics at play and the role that Republicans like Judge Vaughn Walker, former Vice President Dick Cheney and Laura Bush are playing in advancing the case for marriage equality.

Immediately after the decision that California’s 2008 ballot initiative Proposition 8 was unconstitutional, the left started their partisan claims that electing liberal judges and Democratic politicians were the only sure ways to guarantee equal rights for gays and lesbians. The partisan group Equality California quickly warned Californians that they must elect Jerry Brown and San Francisco Attorney General Candidate Kamala Harris if they wanted greater equality. One by one, NPR hosts and MSNBC personalities speculated that the Republicans would surely use the ruling as a wedge issue in November, leading viewers and listeners to believe the issue splits down partisan lines. And gay groups trumpeted congratulatory claims from Democrats and warnings from some Republicans that the issue was not settled yet.

But what you didn’t hear from the political left and mainstream media is that U.S. District Chief Judge Vaughn R. Walker was appointed by a Republican president and that the lawyer, former Solicitor General Ted Olson, who successfully argued the case on behalf of gays and lesbians, is a Republican.

…

But the 2008 decision by California voters to pass Proposition 8 and deny marriage to gays and lesbians should have been a warning sign. California voters overwhelmingly voted for both Barack Obama and Prop 8. At best, this vote means California Democrats are ambivalent about gay marriage. So why do Democratic activists and their media allies continue to define the issue as a partisan divide? The issue is not as partisan as they would like you to believe.

Immediately following the ruling from Walker, Fox News conducted an online and unscientific poll asking people to vote whether or not they believed the Judge had made the right decision. With more than 225,000 votes, 63% of the respondents said “Yes, Prop 8 violates the Constitution.” And 32% said “No, Marriage is an institution between a man and a woman.”

Some people think the issue is merely generational and that as young people mature the opposition to gay marriage will dissipate. But Dick Cheney and Laura Bush are both seasoned Republicans who support gay marriage. Barack Obama and Hillary Clinton, both Democrats with enormous support from young people, are opposed to it. This week’s ruling by a Republican-appointed judge shows that the current stereotypes promulgated by gay civil rights leaders, their Democratic allies and the media are outdated and part of the reason the issue is destined to stay a political wedge.

Read more of Grenell’s piece at HuffingtonPost.com.

Victory for Marriage Equality! A Boston Judge ruled today that the 1996 DOMA is unconstitutional because it interferes with a state’s right to define marriage. U.S. District Judge Joseph Tauro handed down two influential rulings Thursday declaring DOMA unconstitutional.

 The first case was brought by the state of Massachusetts. Judge Tauro declared Congress violated the Tenth Amendment by originally passing DOMA. They took away the states decisions determining which couples can be considered married.

His second ruling was on Gill v. Office of Personnel Management. It was decided that DOMA violated equal protection embodied in the Due Process Clause of the Fifth Amendment. This case was argued by Gay & Lesbian Advocates & Defenders (GLAD), GLAD represented eight married couples and three widowers in the suit.

 Two other major equality court cases continue to develop in California, the Prop. 8 trial and Log Cabin Republicans trial against the “Don’t Ask, Don’t Tell” policy. The decision in Boston today is a great step toward equality for all Americans, regardless of their sexual orientation.

The following is a PostPartisan piece from the Washington Post opinion section by Jonathan Capehart. The upcoming decision from the California court on Prop. 8 will mean a lot in the battle for equal marriage rights in America. The judge’s decision to overturn Prop. 8 or not will have an echoing effect on the rest of our nation. The decision is expected to be seen sometime this summer.  

“Supporters of same-sex marriage are understandably giddy with excitement over the impending decision from U.S. District Judge Vaughn Walker. There’s pretty much universal agreement that the liberal-conservative tag team of David Boies and Ted Olson made an excellent and compelling argument for why the voter-approved Proposition 8 in California violates the U.S. Constitution’s guarantees of due process and equal protection. But the prospect of victory has me and more than a few others concerned about what may follow.

Perry v. Schwarzenegger is not the only marriage equality case out there. Folks have their eyes on one out of Massachusetts. But no matter how Judge Walker rules in the Prop 8 suit, which is expected sometime this summer, the case is certain to be appealed to the federal Ninth Circuit and then to the Supreme Court. And therein lies the danger. If the current ideological makeup of the court doesn’t change by then, the victory that could come at the hands of Judge Walker could turn into a defeat in the Roberts Court. And even if the justices put ideology aside, it might still be reluctant to impose its will on the country.

Jonathan Rauch wrote an excellent piece for the New York Times last Saturday that also expressed concern about same-sex marriage and the high court. The foundation of his argument was something Supreme Court nominee Elena Kagan said cast a spotlight on that latter point. “The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals,” she said. “But the court must also recognize the limits on itself and respect the choices made by the American people.”

To understand the importance of that last sentence we need to go back to the 1986 ruling in Bowers v. Hardwick. This case involved two consenting adult gay men who were arrested for violating Georgia’s anti-sodomy law. Michael Hardwick challenged the law’s constitutionality in federal court. When the case reached the Supreme Court, the question before it was whether consensual sodomy by homosexuals was a fundamental right guaranteed by the Constitution. The answer was no in a 5-4 decision written by Justice Byron R. White. This is a key paragraph in the majority opinion to file away for a moment.

Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

The constitutionality of sodomy laws returned 17 years later in Lawrence v. Texas. The question before the Supreme Court in 2003 was “the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.” The 6-3 decision, which overturned Bowers v. Hardwick and invalidated anti-sodomy laws across the country, was written by Justice Anthony Kennedy. His majority opinion remains heralded as the most pro-gay decision to come from the high court. In a key rebuttal to Bowers, Kennedy wrote:

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

The historical trend between the two cases is obvious. In addition to recognizing the violation of equal protection and due process guaranteed under the Fourteenth Amendment, the Court in the Lawrence case also noted that society was moving away from criminalizing the consensual intimate relationships of same-sex couples. Unfortunately, the same cannot be said of society’s acceptance of marriage equality.

Yes, there has been progress, much of it within the last 10 years. Same-sex couples are able to legally wed in five states (Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire) and, most recently, the District of Columbia. Maryland, Rhode Island and New York legally recognize marriages performed in other jurisdictions. But in that same period, 30 states passed constitutional amendments or statutes that define marriage as being between one man and one woman. In fact, the Wisconsin Supreme Court ruled unanimously on June 30 to uphold that state’s constitutional ban on same-sex marriage and civil unions. Remember what Kagan said about the court recognizing the limits on itself and respecting “the choices made by the American people”? Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

Here’s something else to consider. The Massachusetts Supreme Judicial Court ruling that ushered in marriage equality there in 2004 also kicked off a push to enshrine discrimination in the Constitution through an amendment banning same-sex marriage. It went nowhere then. I’m not so sure today. Two-thirds of the states — 38 — are needed to amend the U.S. Constitution. As I just mentioned 30 states have already done it on their own. Or look at it this way, 45 of the 50 states currently do not permit same-sex marriage.

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.” -Jonathan Capehart