Why Ted Olson is challenging Prop 8

by on August 19, 2009  •  In Uncategorized

From lengthy man-bites-dog story in the NY Times:

… Last November, [Rob] Reiner and his wife, Michele, invited two prominent Democratic consultants, Chad Griffin and Kristina Schake, to lunch at the Polo Lounge at the Beverly Hills Hotel. Ten days before, voters had passed Proposition 8, an amendment to the California Constitution negating a State Supreme Court decision that had briefly legalized same-sex marriage. Mr. Griffin, who had come out eight years earlier, said he felt like he had been gut-punched.

As the friends commiserated and discussed what to do next, an acquaintance named Kate Moulene stopped by. In a phone conversation later that afternoon, she suggested that Ms. Reiner contact her sister’s former husband, a leading constitutional lawyer. His name was Ted Olson, she said, and “knowing him as I do, I bet he’d be on your side of this.”

“Ted Olson?” Ms. Reiner recalls exclaiming. “Why on earth would I want to talk to him?”

Mr. Olson’s reputation, after all, went far beyond Bush v. Gore. As head of the Office of Legal Counsel at the Justice Department in the Reagan administration, Mr. Olson had been an architect of the president’s drive to ease government regulation and end race-based school busing and affirmative action set-asides in federal contracting. He later provided assistance to those seeking to impeach President Bill Clinton.

As Mr. Bush’s solicitor general, in charge of representing the government before the Supreme Court, Mr. Olson became identified with the administration’s broad interpretation of its wartime power in the wake of the Sept. 11 attacks, in which his wife, Barbara, a conservative commentator, was killed. (Mr. Olson nonetheless privately counseled that terrorism suspects be given certain basic legal rights, administration officials said, correctly predicting that failure to do so would lead to Supreme Court setbacks.)

Still, Mr. Reiner was intrigued. The tactician in him saw the wisdom of hiring a lawyer who had won 44 of the 55 Supreme Court cases he argued; the director grasped the dramatic impact of such a casting decision. He dispatched Mr. Griffin to consult with experts about the feasibility of a federal court challenge to Proposition 8 and to gauge Mr. Olson’s interest.

“I thought, if someone as conservative as Ted Olson were to get involved in this issue, it would go a long, long way in terms of presenting this in the right kind of light,” Mr. Reiner said.

In fact, Mr. Olson’s history was more complex than Mr. Reiner imagined.

Mr. Olson had become active in the Republican Party as a college and law student in California in the 1960s, long before the rise of the religious right and its focus on social issues. He gravitated toward a particularly Western brand of conservatism that valued small government and maximum individual liberty, becoming one of a few law students at the University of California, Berkeley to support Barry Goldwater’s 1964 presidential bid.

At the time, the South was riven by racial strife, and during a college debate trip to Texas, Mr. Olson got his first close-up view of blatant discrimination. Lady Booth Olson, a lawyer whom Mr. Olson married in 2006, said he still tears up when telling how a black teammate was turned away from a restaurant in Amarillo. Mr. Olson “tore into the owner,” insisting the team would not eat unless everyone was served, recalled the team’s coach, Paul Winters. “If he sees something that is wrong in his mind, he goes after it,” Mr. Winters said.

Years later, during the Reagan administration, when Mr. Olson was asked if the Justice Department could dismiss a prosecutor for being gay, he wrote that it was “improper to deny employment or to terminate anyone on the basis of sexual conduct.” In 1984, Mr. Olson returned to private practice and was succeeded by Mr. Cooper, his adversary in the marriage case. The switch eliminated “what was seen as a certain libertarian squishiness at the Office of Legal Counsel under Ted,” Mr. Calabresi said.

During the Bush administration, Mr. Olson was consulted on a plan to amend the Constitution to define marriage as between a man and a woman. “What were we thinking putting something like that in the Constitution?” he recalls telling the White House.

Around that time, state legislatures were debating alternatives to same-sex marriage like civil unions, but Mr. Olson said he saw them as political half-measures that continued to treat gay men and lesbians as separate and unequal. Over dinner at a Capitol Hill restaurant, he argued that marriage was an essential component of happiness that gay couples had every right to enjoy, recalled David Frum, a conservative author and former Bush speechwriter.

“I was really impressed and struck by how important the issue was to him,” Mr. Frum said. “The majority view at the table was on the other side, but his view was, ‘You have to make peace with this because it is sure to happen, and you will see it in your lifetime.’ ”

Mr. Olson signed on to the California case after a meeting at Mr. Reiner’s home last December, telling the group gathered there that he would not “just be some hired gun,” Ms. Schake recalled. In fact, he had already rebuffed a query about defending Proposition 8. Still, to allay suspicions on the left, he suggested bringing on his adversary in Bush v. Gore, David Boies, whom he had since befriended. Both lawyers agreed to waive part of their fees.

“I thought, why wouldn’t I take this case?” Mr. Olson said. “Because someone at the Federalist Society thinks I’d be making bad law? I wouldn’t be making bad law.”

In Mr. Olson’s analysis, the situation in California presents a favorable set of facts for an equal protection argument. Proposition 8 created three classes: straight couples who could marry, gay men and lesbians who had married in the brief period before the ban, and gay couples who wanted to marry but now could not….

One of those whose advice he sought was Robert McConnell, a friend from the Reagan Justice Department. Mr. McConnell, a practicing Catholic, said he told Mr. Olson that as a religious matter, he believed that marriage ought to be reserved for two people who can procreate. He said Mr. Olson replied that while he respected his convictions, he considered it a civil-rights issue.

Mr. Olson, who is not a regular churchgoer, began to elaborate on his view that religious beliefs were insufficient legal justification for government to refuse to recognize same-sex marriage, but soon paused. “You don’t agree with me, do you?” Mr. McConnell recalled him saying.

[Olson's wife], a Democrat, said she was thrilled that “on this case we’ll be on the same wavelength.” She said Mr. Olson’s mother, Yvonne, expressed some initial concern that a court decision overturning Proposition 8 would disenfranchise voters, but came around after Mr. Olson explained that voters cannot impose mandates that violate constitutionally protected rights. In the lawsuit, filed in May, he asserted that Proposition 8 had done just that….

[Olson is relying on Romer v. Evans and Lawrence v. Texas.] Mr. Cooper asserts that Mr. Olson is stretching the scope of the Lawrence decision, pointing out that it dealt with the criminalization of private sexual behavior, not a state’s duty to recognize a marriage. But Mr. Olson notes that no less a conservative than Justice Antonin Scalia argued in a blistering dissent that the majority in Lawrence had indeed opened the door to same-sex marriage.

Given that the Lawrence case established gay sex as a protected right, Mr. Olson argues, the state must demonstrate that it has a rational basis for discriminating against a class of citizens simply for engaging in that behavior.

He dismisses Mr. Cooper’s contention that the California ban is justified by that state’s interest in encouraging relationships that promote procreation and the raising of children by biological parents. If sexual orientation is not a choice — and Mr. Olson argues that it is not — then the ban is not going to encourage his clients to enter into heterosexual, child-producing marriages, he insists. Moreover, he says, California has waived the right to make that argument by recognizing domestic partnerships that bestow most benefits of marriage….

Last month, at a Federalist Society lunch, Mr. Olson delivered his annual roundup of the Supreme Court term. He was greeted warmly, but there was palpable discomfort over the marriage case. Not a single person mentioned it to him, save for an oblique ribbing by David Bossie, whom Mr. Olson is representing in a case involving his scathing documentary about Hillary Rodham Clinton. After pecking Ms. Olson on the cheek, Mr. Bossie told her husband, “I’m not going to kiss you, even though apparently you wouldn’t mind.”

William Bradford Reynolds, another Reagan-era colleague, said later that while Mr. Olson presented a thoughtful case, “He’s taking a more assertive view of how one should interpret the Constitution than you would normally expect Ted to take.”

Mr. Olson is confident. Paul Katami, one of the plaintiffs recruited for the lawsuit, recalled Mr. Olson’s words shortly before it was announced: “He put his arm around me and said, ‘We’re going to plan your wedding in a couple of years — this is going to happen.’ ”


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