A Conservative Argument For Equal Access To A Conservative Institution: Marriage

The lifelong Republican who argued Bush v. Gore before the Supreme Court—and won—goes to court this week to overturn California's ban on gay marriage. Huh?

By Eve Conant for NEWSWEEK:

Ted Olson would seem the unlikeliest champion of gay marriage. Now 69 years old, he is one of the more prominent Republicans in Washington, and among the most formidable conservative lawyers in the country. As head of the Office of Legal Counsel under Ronald Reagan, he argued for ending racial preferences in schools and hiring, which he saw—and still sees—as a violation of the Constitution's guarantee of equal protection under the law. Years later, he advised Republicans in their efforts to impeach President Clinton. In 2000 he took the "Bush" side in Bush v. Gore, out-arguing his adversary (and friend) David Boies before the Supreme Court and ushering George W. Bush into the White House. As solicitor general under Bush, he defended the president's claims of expanded wartime powers. (Olson's wife at the time, Barbara, died on American Airlines Flight 77, which was crashed into the Pentagon on September 11, 2001.) Olson has won three quarters of the 56 cases he has argued before the high court. Feather quills commemorating each case, and signed thank-you photos from presidents, cover the walls of his Washington office.


The Conscience of a Conservative
Now once again in private practice, Olson has the time to take on causes that matter most to him. One of them has surprised, dismayed, and outraged many of his conservative friends and colleagues. This week, after months of preparation, he will argue on behalf of two gay couples in Perry v. Schwarzenegger, a federal case challenging Proposition 8, the California ballot initiative that outlawed same-sex marriage in the state.

Olson's brief against Prop 8 is straightforward: laws banning gay marriage not only make no sense, they are unconstitutional. As a conservative, he says he believes in individual liberty and freedom from government interference in the private lives of citizens. Discriminating against people because of sexual orientation is a violation of both. "This case could change the way people think about one another," says Olson. "We are forever putting people into this box or that box, instead of just seeing each other as human beings."

He took on the case last fall, after he received a call from Chad Griffin, a gay activist in California who was part of a team looking for a lawyer to challenge Prop 8. A former in-law of Olson's suggested they reach out to Olson. Griffin was skeptical. "He was the conservative enemy," he recalls thinking. Griffin was surprised to find that Olson was anything but hostile. The two men talked for hours. Olson spent the next several weeks consulting with friends, fellow lawyers, and family, starting with his wife and political sparring partner, Lady Booth Olson, herself an attorney and a Democrat. He put the same question to all of them: why shouldn't gay people have the right to marry? "I asked them to give me their best argument. They had all sorts of intangible instincts and feelings about what's 'right,'" he says. "But I didn't hear any persuasive response."


Still, Olson knew he would need help in preparing a sturdy case. Even if he prevails, defendant intervenors will almost certainly appeal; ultimately the case may wind up before the Supreme Court—a possibility Olson clearly relishes. He had no doubt whom he wanted beside him at the plaintiff's table: Boies, his old liberal courtroom adversary and biking buddy. A fearsome litigator, Boies didn't hesitate to take on such a high-profile case. "The current administration has been decidedly halfway on this issue," he says, "and I think the specter of having George Bush's lawyer out in front of a Democratic president is something that, shall we say, might stimulate people to rethink their positions."

It has done that already, not all of it favorable to Olson. Some conservatives have accused him of apostasy, and of trying to bend the Constitution to fit clandestine liberal views. Ed Whelan, a lawyer who worked with Olson in the Bush administration, says his first reaction was "surprise, followed by disgust that Ted would abandon the legal principles he's purported to stand for, like originalism and judicial restraint." But Whelan also knows that Olson—who arrives at work each morning by 6:30 and reads centuries-old law texts in his spare time—is a formidable adversary. "There's a definite chance he'll win. That's what makes it all the more outrageous that he's pushing this."


Many gay activists weren't any happier at first, believing an incremental approach was safer than betting everything on one big case. They feared a loss would be a massive setback. "Racial segregation, for example, didn't take just one case; there were a series of strategic steps," says Molly McKay of Marriage Equality USA. Others sensed conspiracy, speculating that Olson took the case only to throw it. He has since convinced them he is genuine in his conviction that gay marriage is a civil-rights issue.

In fact, Olson is surprisingly emotional about the case, and his eyes mist up repeatedly when he talks about the hundreds of letters—positive and negative—that he's received. "We should be welcoming our gay colleagues and friends as equals," he says. Kristin Perry, one of the plaintiffs in the case, says that whenever Ted sees her and her partner, Sandy Stier, "he tells us, 'I think about you two every day. This is the reason I've taken this case.'" Some conservatives, still trying to figure out what happened to their old friend, have asked him when he decided he was for gay marriage. Olson seems puzzled by the question. "I don't know that I was ever against it."

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Gay Marriage and the Constitution

Why Ted Olson and I are working to overturn California's Proposition 8.

By DAVID BOIES for the Wall Street Journal:

When I got married in California in 1959 there were almost 20 states where marriage was limited to two people of different sexes and the same race. Eight years later the Supreme Court unanimously declared state bans on interracial marriage unconstitutional.


Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California's Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, "decisions of this Court confirm that the right to marry is of fundamental importance for all individuals." In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.

There were legitimate state policies that supported the Wisconsin and Missouri restrictions held unconstitutional. By contrast, there is no legitimate state policy underlying Proposition 8. The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion. It is difficult to the point of impossibility to envision two love-struck heterosexuals contemplating marriage to decide against it because gays and lesbians also have the right to marry; it is equally hard to envision a couple whose marriage is troubled basing the decision of whether to divorce on whether their gay neighbors are married or living in a domestic partnership. And even if depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex, it is impossible to see how that could be thought to be as likely to lead to a stable, loving relationship as a marriage to the person they do love.

Moreover, there is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation. Even if there was, the attempt would be constitutionally defective. But, in fact, the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters. It is also a condition that, like race, has historically been subject to abusive and often violent discrimination. It is precisely where a minority's basic human rights are abridged that our Constitution's promise of due process and equal protection is most vital.


Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect -- except the increase in human happiness and social stability that comes from permitting people to marry for love. Several states -- including Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont -- have individually repealed their bans on same-sex marriage as inconsistent with a decent respect for human rights and a rational view of the communal value of marriage for all individuals. But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.

The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. As Justice Anthony Kennedy elegantly wrote rejecting the notion that a history of discrimination might trump constitutional rights, "Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

Gays and lesbians are our brothers and sisters, our teachers and doctors, our friends and neighbors, our parents and children. It is time, indeed past time, that we accord them the basic human right to marry the person they love. It is time, indeed past time, that our Constitution fulfill its promise of equal protection and due process for all citizens by now eliminating the last remnant of centuries of misguided state discrimination against gays and lesbians.

The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.

Mr. Boies is the chairman of Boies, Schiller & Flexner LLP.