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A New Head Scratcher: GOP Luminary Ted Olson Advocates for Marriage Equality

by Kilian Melloy
Thursday May 28, 2009

With the California Supreme Court having upheld a ballot initiative that banned marriage equality in that state, two famously opposed lawyers have now joined their legal expertise to tackle the issue of equality for gay and lesbian families in federal court--and they're willing to take the case all the way to the Supreme Court.

It's a surprising new chapter in a legal and civil rights saga that has been full of twists and unforeseen developments, characterized by quantum leaps forward and shocking setbacks for full family parity for America's gay and lesbian citizens and their loved ones.

In 2000, David Boies represented Democratic presidential nominee Al Gore; Theodore B. Olson represented Republican candidate George W. Bush. The case dealt with a close, and contested, election, and at stake was the leadership of the free world.

Olson's side won, with Bush ascending to the presidency for the next eight years and Olson going on to serve for three years as the United States Solicitor General during the first George W. Bush administration.

But the loss of marriage rights in California for all gay and lesbian families (excepting the 18,000 families who had already married while equal access to matrimony was available to them) has brought the two lawyers, once high-profile opponents, into accord with one another.

Last November, after a bruising a divisive campaign, California voters narrowly approved Proposition 8, which changed the California constitution to eradicate the right of gay and lesbian couples to wed.

That outcome was challenged on the theory that the ballot initiative went too far and revised, rather than amended, the state's constitution.

But the California Supreme Court, which had earlier struck down anti-gay law banning same-sex marriage as unconstitutional, found in a May 26 decision that the ballot initiative did not go too far. With only one justice dissenting, the court upheld Proposition 8, but angered religious and social conservatives by also upholding the marriages that gay and lesbian families had entered into during the six month window when marriage equality was legal in the state.

Even though the California Supreme Court saw no contradiction to one constitutional provision guaranteeing equality to California citizens, while another passage denies rights to a single demographic that all others enjoy, Olson and Boies are willing to stake the future of marriage equality across the nation on the premise that the nation's Supreme Court will find Proposition 8--and, by extension, the amendments in 29 other state constitutions that restrict marriage to heterosexual couples--violates the federal Constitution's guarantees of equal protection under the law and due process, reported a May 27 article in The New York Times.

For the two lawyers, the suit they filed in federal court is about nothing less than fully equal treatment before the law, according to Boies, who was quoted in the New York Times article as saying that, "this is not something that is a partisan issue. This is something that is a civil rights issue."

Olson's involvement in the case came as a shock to conservatives, not only because Olson had served under George W. Bush--who promoted an federal amendment to the U.S. Constitution to bar marriage equality anywhere in the United States--but also because Olson had been married to Barbara Olson, a conservative media host who worked for Fox News, who died in the terrorist attacks of September 11, 2001.

Ms. Olson was a passenger on American Airlines Flight 77, which terrorists crashed into the Pentagon.

But Olson made it plain that for him, the case was about treating families fairly.

As quoted in the New York Times article, Olson said, "If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally."

Olson indicated that in his view the case was a natural for the U.S. Supreme Court, which makes decisions about constitutional law. "Creating a second class of citizens is discrimination, plain and simple," Olson explained.

"The Constitution of Thomas Jefferson, James Madison and Abraham Lincoln does not permit it."

GLBT equality leaders were not shy about expressing skepticism and even alarm at the idea that marriage equality on a national level might be decided by a right-of-center Supreme Court headed by a George W. Bush appointee.

Indeed, even if the Supreme Court were to hear the case and decide in favor of marriage equality, some envision a backlash from religious and social conservatives that could lend fresh momentum to the long-stalled push to add discriminatory language against gay and lesbian families to the U.S. Constitution.

Some even wonder if both lawyers are sincere, or whether a larger game plan might be unfolding that would pre-empt the state-by-state progress of marriage equality by ending in a national blanket ban on gay and lesbian family parity.

The New York Times quoted the American Civil Liberties Union (ACLU)'s Matt Coles as saying that a federal suit in response to the California Supreme Court's finding was "not something that didn't occur to us."

Coles, who directs the ACLU's LGBT project, added sarcastically, "Federal court? Wow. Never thought of that."

While GLBT equality leaders may have considered the idea, they mostly seem to have rejected it as too risky, favoring a go-slow approach that focuses on state laws and that has, so far, led to marriage equality in six states--five, now that Californians have eradicated marriage rights for some families through a popular vote.

More promising still, the most recent two states to grant marriage equality, Vermont and Maine, did so through legislative action, rather than through court challenges to anti-gay laws that were found to be unconstitutional.

But a pressing counter-argument to the patchwork approach is the fact that the California Supreme Court's ruling upholds the precedent that minority rights can be rescinded through popular vote, which some fear will lead to a national trend targeting not just gays and lesbians, but racial, ethnic, and religious minorities as well.

A U.S. Supreme Court defeat for Proposition 8 on the grounds that the measure violates federal guarantees of due process and equality could have the effect of discouraging such legislative attacks on minorities.

Moreover, with thirty states having amended their constitutions to deny legal parity to gay and lesbian families, a state-by-state approach will inevitably be lengthy--and expensive.

As the divisive Proposition 8 campaign proved, both sides are willing to pour tens of millions of dollars into a single state in the course of a single ballot initiative over the question of who should be granted which rights, and who should be selectively denied them.

Multiplied by all fifty states, assuming at least one more such campaign per state, that might mean that over time the so-called "culture war" against gay families ends up costing as much in monetary terms as some actual military engagements.

More expensive still--and more disheartening--is the prospect that a back-and-forth could begin that sees the same civil rights and constitutional amendment questions put to voters repeatedly: already, GLBT equality organizations are preparing for an effort to put a ballot initiative before California voters that would re-amend the state constitution and repeal Proposition 8.

Still, in terms of the immediate future, GLBT leaders see a federal suit as courting disaster for gay and lesbian family rights.

The New York Times article quoted Lambda Legal's Jennifer C. Pizer as saying, "We think its risky and premature."

While a U.S. Supreme Court win could level the field for all couples everywhere in the Union, Pizer, who is director of the marriage project for the Los Angeles chapter of Lambda Legal, was cited as expressing concern that a loss at that level could set back GLBT equality by decades.

And decades have already been invested in the pursuit of gay and lesbian family equality, noted Pizer. "We have developed these strategies from working on these issues for decades.

"And our strategy grows from that work."

Harvard constitutional law scholar Lawrence H. Tribe noted that, "the fact that it's being advanced by people at both ends of the ideological spectrum gives it a certain profile," the article reported.

Tribe looked at the pros and cons of such a suit going before the current U.S. Supreme Court versus allowing marriage equality to pursue its current state-by-state strategy, saying, "There's a national trend which is obvious, with Vermont, Maine and Iowa.

"But pushing it right now in front of a conservative court is not necessarily the wisest thing to do."

Olson disagreed, citing precedent from the Court itself, though in years past. In 1996, a Colorado constitutional amendment, passed four years earlier, that would have made it impossible for gay and lesbian residents of that state to enjoy any legal protections, was struck down on the same grounds as Olson and Boies' challenge to Proposition 8.

Also, a 2003 case heard by the Court struck down a Texas ban on consensual sex between adults of the same gender--and overturned all other such state laws in the country in doing so.

In both cases, Justice Anthony M. Kennedy was on the bench; Justice Kennedy wrote the majority opinion in the case of the Colorado anti-gay amendment, and was joined in the ruling by still-active Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens.

Souter is planning to retire at the end of the current Court session, however, and would not be on the bench by the time the case reached the Supreme Court, if ever.

Ginsberg may also no longer be on the bench by then, as she has had health problems that led to a recent hospitalization.

Justice Antonin Scalia also was a member of the court when the Colorado amendment was overturned, however, and, joined by Clarence Thomas and then-Chief Justice William H. Rehnquist, dissented with the majority opinion. Like Kennedy and the others cited above, Scalia and Thomas remain on the bench today, and it's an open question as to whether the current Court is more likely to take after Kennedy or Scalia.

The most recent members of the bench, Justice Samuel Alito and Chief Justice John G. Roberts, were appointed by George W. Bush. Roberts is a "constructionist" who bases his view on the supposed original intentions of the Constitution's authors. Alito is seen as more libertarian, though often is rulings reflect a conservative bent.

Ms. Pizer also seemed a touch befuddled by her starrier, more publicized colleagues' unexpected interest in issues she has spent her professional life arguing.

But Olson still seems to like the odds. The article quoted him as saying, "We studied this very, very carefully."

Olson spoke to his own and Boies' familiarity with the Supreme Court, saying, "There will be many people who will think this is not the time to go to federal.

"Both David and I have studied the court for more years than probably either one of us would like to admit. We think we know what we are doing."

Indeed, Olson regards the framers of the Constitution as champions of individual liberties, the article said.

Though the two lawyers have formed close personal ties, their history in one of the nation's most celebrated--and reviled--court cases, in which Al Gore lost the presidency despite having garnered more votes than Mr. Bush, has earned them the label of "strange bedfellows" on the marriage equality issue.

That was the term used by NBC Philadelphia News in a May 28 article about the federal suit the pair filed.

Olson acknowledged as much, in a quote carried by that story. "We are two lawyers from opposite ends of the political spectrum who have come together to support one of the most important issues of our time."

Olson added that the case "is not about liberal or conservative, Democrat or Republican," and said of his own and Boies' involvement, "We're here in part to symbolize that."

But Olson also argued that the suit reflects traditional Republican values. "The constitution protects individuals' basic rights that cannot be taken away by a vote," he was quoted as saying.

"If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution.

"We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy," Olson continued, adding, "I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."

Said Boies, "Reasonable minds can differ, but when you have people being denied civil rights today, I think it is impossible as lawyers and as an American to say, 'No, you have to wait, now is not the right time.'

"I think if we had done that in prior civil rights battles, we would not be where we are," Boies added.

The article noted if the case went to the Supreme Court and Proposition 8 were struck down on Constitutional grounds, the 1996 "Defense of Marriage" Act, or DOMA, might also be invalidated.

DOMA, which Barack Obama spoke of wishing to see repealed during his presidential campaign, denies any federal level recognition for gay and lesbian families, which means that even when states grant marriage equality, certain rights and protections--such as tax benefits available to other families--are still denied.

Indeed, the 2010 census is not permitted under DOMA to count America's gay and lesbian families, which critics say will unfairly impact the distribution of federal funds.

The suit is scheduled to be heard in federal court in San Francisco on July 2, the article said.

But laptop pundits aren't waiting for a ruling.

At conservative chat site Free Republic.com , the usually heated discourse was more intense than usual, with users calling one another names in the course of the discussion, and some users questioning Olson's character and motives.

Wrote one participant, "Ted, you dishonor your conservative, FReeper wife's memory. How could you?"

Another spoke up for Olson. "Lawyers doing what lawyers do. Take cases. Did you all want to fund his living so he can only take cases with which conservatives agree?"

To that, another replied, "Yes, I suppose most people have fungible values these days."

Still another wrote, "I'm thinking Money over Morals as always with lawyers."

And this from someone else: "Once again proof it is all about the money when it comes to lawyers. God forgive him, for dishonoring his principles and his wife."

The money issue was shrugged off by some. "Ted Olsen doesn't want for money," wrote one participant.

"This is the kind of case an attorney takes because he or she believes in the cause. He obviously chose to be part of what will be a landmark case.

"It doesn't surprise me at all, the GOP is full of Country Clubber elitists who so desperately want to be part of the enlightened cocktail parties," the participant added.

Another chose to question Olson's sexuality. "Is Ted Olson a bisexual? I wish his wife was here ... maybe she could straighten him out."

Another user bit back with, "He doesn't have to be some kind of 'sexual deviant' to see what may be some sort of constitutional violation.

"Don't get me wrong, I don't think it is with in the right of any group to redefine terms and to essentially take away an institution from heterosexuals," the user added.

The issue of the ballot initiative's "direct democracy" and the "will of the people" that many conservatives argue from emerged with a post reading, "More madness from leftyfornia I am confused as to how a court can overturn the will of the voters?"

Another cited the California court's finding that the 18,000 gay and lesbian families who had already married would not be forcibly divorced by the state, writing that, "they did thumb their collective nose at the people by declaring those who had already been married would retain their status."

Others questioned whether marriage for gays and lesbians, or even heterosexuals, was a "right" at all.

Wrote one, "The fact that some people want to do something that no one is legally allowed to do does not change the fact that everyone has the same marriage rights.

"As to 'violates equal protection and due process clauses of the Fourteenth Amendment,'" the posting continued, "if true, it's because certain laws, rules, procedures, benefit those who are married.

"Those are the problem [sic] if there is a problem, not the laws about who can marry who. Most everybody is looking at the wrong part of this from an equal protection and due process point of view."

Agreed another, "If any inequality exists, it is between the government's treatment of married and non-married people, not its treatment of gay and straight (which is rightfully identical)."

Pointed out another, "There is no constitutional right to marriage at all, even for straights.

"Using morality on this issue is a dead loser from a PR point of view as well or long dead laws on homosexuality too," added the posting.

But while GLBT equality leaders were feeling uncertain about Olson and Boies' suit, some conservatives also had their doubts. "This is a big deal," wrote one.

"David Boies and Ted Olson are arguably the two finest litigators in the country. They would be a formidable pair any court, and they would be a dream team for any constitutional case."

At least one chat participant expressed a willingness to abide by the rule of law, should the Supreme Court of the United States overturn Proposition 8. "As a conservative who respects the constitution, Ted Olson and the conservative majority of SCOTUS if they over turn this ruling I will respect it.

"But right now, the legal neophyte I am however, I do not see where this case presents anything new that the federal courts have seen since DOMA relegated to the states the right to define marriage."

Another chat member posed the question, "Could be Olsen is preempting the homosexual lobby by filing a flawed argument in Federal court."

Suspicions of such duplicity, if they exist among GLBT leaders, were not voiced as a reason why equality advocates did not welcome the bipartisan teamwork offered by the former legal rivals.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


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