Ted Olson's article has sparked an extended debate over at The Volokh Conspiracy. Orin Kerr pushes back against the pessimists in the most recent post:
For those in favor of same-sex marriage, I’m not sure that a hypothetical Supreme Court decision concluding there is no right to same-sex marriage would do much to set back that cause. It seems to me that the cause of same-sex marriage has been advancing in recent years with the background understanding that federal courts are not likely to recognize such a right anytime soon. A decision rejecting the right would maintain that status quo. Some would argue that a decision rejecting the right in the near-term would delay or block a future decision coming out the other way. Whatever the Court does, however, my guess is that an early decision rejecting the right wouldn’t have a great deal of impact on later litigation.
But if you believe, as I do, that the case is extremely strong, then airing it in a controlled and rational court room in which all the arguments can be thrashed out in public is inherently good. Anything that can expose more people to the core arguments of this issue is, in my judgment, good for the cause. Because our arguments are so vastly superior to what passes for theirs' and the animus toward gays as a whole so clear from their literature and backgrounds that it will force this ugliness to the surface. I believe in sunlight on this issue. I believe that even if we lose in this process, we educate and inform. And the more we educate and inform the sooner our equality will come.
The Dish 