Saturday, January 30, 2010

How Obama Just Nailed Ted Olson and Gay Rights to the Wall

In his State of the Union speech, President Obama openly criticized the Supreme Court for its recent First Amendment decision regarding corporate advertising. Such public bullying of the Court by the President is unthinkably crass, petulant, and small, especially given the venue and the event and given that the Court cannot publicly respond. It was also incredibly stupid given Obama's stated support of Gay Rights.

There is no doubt that several cases will reach the Court during the Obama administration that might have been on hold during a more conservative administration. One of those cases is the current Gay Marriage case being championed by big name attorney Theodore Olson in California. Olson is contending that Gay Marriage is a civil right and the case is sure to reach the Supreme Court.

It is fairly certain that there are four no votes on the Court: Scalia, Roberts, Thomas, and Alito. The yes votes are not as certain but probable: Ginsberg, Sotomayor, Beyer, & Stevens. The swing vote, the unknown, is Anthony Kennedy. If gay marriage is to have any chance before the nation's highest court, Kennedy's sympathies will need to be courted.

Obama's unthinkable, low class swipe at the Court in front of the whole nation and the world will not soon be forgotten by the Court. One Justice that will particularly remember Obama's insult is the author of the majority opinion in the case that Obama criticized: Justice Anthony Kennedy.

Regardless of Obama's personal opinion about the Court's ruling, the State of the Union speech was not the place to express it. The Court was officially present at the speech as a "guest" of Congress. It's like inviting friends to your party and then openly insulting them. This was a very bad move simply as a matter of professional manners. But it was a disastrous move for Olson and Gay Rights.

By the way, I'm going to anticipate that some who read this will focus more on the Court's opinion that they disagree with than the point of this post. The primary criticism of the ruling is that the Court has made corporations citizens. At least that's the talking point for the liberal press. What they fail to mention is that the Court has simply made businesses equal to Unions, since they already can do what businesses have been denied.

In any event, Obama's public claim that the ruling allows for foreign corporations to intrude on national politics is false. Right now it looks like the best thing going for Conservatives is Obama himself.

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