12:00am

Mon December 6, 2010
Law

Ted Olson, Gay Marriage's Unlikely Legal Warrior

This is one of two stories on ongoing efforts to overturn California's Proposition 8. A companion story from Karen Grigsby Bates looks at how the legal battle has evolved so far, and two supporters who are literally praying to keep the ban in place.

Ted Olson's role as gay marriage advocate has raised eyebrows on both the right and the left.

On Monday, Olson will be in federal court representing those seeking to overturn California's ban on gay marriage, known as Proposition 8. The hearing could be the last stop before the case goes to the U.S. Supreme Court.

A decade ago, Olson was a rock star in conservative legal circles after he represented George W.  Bush in the famous Supreme Court case Bush v. Gore, and won.

A year later, on Sept. 11, 2001, as Olson sat in his office at the Justice Department, he would hear his wife Barbara's voice for the last time. She was calling on her cell phone from American Airlines Flight 77, just moments before her plane struck the Pentagon.

By then, Olson was the Bush administration's solicitor general, a job he nearly didn't get.

Democrats fiercely opposed Olson's nomination because of his prominent role in a shadowy multimillion-dollar effort to find damaging information about Bill Clinton. He was narrowly confirmed and went on to become the government's chief advocate in the Supreme Court. In that role, he defended, among other things, the Bush administration's anti-terrorism policies, though internally he warned -- accurately, as it turned out -- that some of those policies would not win approval from the Supreme Court.

Last month, as a private lawyer, he argued his 57th Supreme Court case. His clients have been varied, and on occasion he has argued contrary positions. In 2003, as the government's lawyer, he successfully defended the McCain-Feingold campaign finance law, disproving reformers' suspicions that he might pull his punches. Then, last year, representing the other side, he persuaded the court to eviscerate much of the same law.

Ironically, it was a former Clinton White House aide who was the original go-between in arranging a meeting between Olson and those interested in challenging California's Proposition 8 -- most prominently, Hollywood producer and Democratic activist Rob Reiner and his wife, Michele.

Olson immediately recruited as co-counsel his one-time adversary David Boies, the powerhouse lawyer who represented former Vice President Al Gore in the Bush v. Gore case. The two legal gladiators have become fast friends over the past decade, and Olson never misses an opportunity to credit Boies for much of the work in this case.

Seeing Conservative Values In Gay Marriage

Olson says that for him, the case was a natural, and as he talked about it, his eyes repeatedly filled with tears.

"We're talking about an effect upon millions of people and the way they live their everyday life and the way they're treated in their neighborhood, in their schools, in their jobs," Olson said. "If you are a conservative, how could you be against a relationship in which people who love one another want to publicly state their vows ... and engage in a household in which they are committed to one another and become part of the community and accepted like other people?"

Tears have come often as the case has progressed. At his law firm late one night, Olson recalls, he was walking through the library when a young woman who's now a young partner in his firm approached him. "[She] said, 'We haven't worked much together, and you don't know me very well, but I'm a lesbian. My partner and I have two children, and I can't thank you enough for what you're doing for me.' " And then, said Olson, "We both sort of dissolved in tears."

Olson likens the discrimination faced by gays and lesbians to that experienced by racial minorities. As a college debater traveling in the South, he witnessed such treatment firsthand when restaurants refused to serve his team because one member was African-American. Decades later, Olson calls it a "searing memory."

Homosexuality, Olson maintains, is much like race. It is not a matter of choice. "We are what we are," he says. Indeed, he likens the Proposition 8 case to Loving v. Virginia, the 1967 case in which the Supreme Court unanimously struck down a law that made interracial marriage a crime.

"President Obama's parents could not have been married in Virginia when he was born," Olson points out. "They would have been committing a felony. These days, we think it's incredible that we could have prevented people from a different racial background from getting married, and that's only 40 years ago."

Alienating Old Allies

But some of Olson's old conservative allies see a very different Ted Olson.

Ed Whelan, president of the Ethics and Public Policy Center, a conservative think tank, says that Olson has "burned a lot of bridges with folks" because of his "misrepresentation of what's going on in this case, and also just by his abandonment of the legal principles that he had previously professed to hold."

Whelan says that Olson's role in the Proposition 8 case "invites a rethinking of his public career, and the question of whether Ted has just been all about Ted for most of his career naturally arises."

Not all of Olson's fellow conservatives are so harsh. Chuck Cooper, the lawyer on the other side in the Proposition 8 case, calls Olson a "dear friend." Indeed, Cooper succeeded Olson as assistant attorney general for the Office of Legal Counsel in the Reagan administration.

"I would not have predicted that Ted would be on the side of this case that he's on, but by the same token, I know he believes deeply in his side of this case, and in the cause that he's advancing, and I respect that," Cooper says.

As for gay rights advocates, after an initial hesitation, they largely have welcomed Olson's help, but some do question his strategy.

"I think there are lots of people who are nervous or skeptical about whether this is the right time to be litigating in federal court," says Stanford Law professor Pam Karlan, noting that the current Supreme Court "might turn out to be hesitant or outright hostile about marriage equality."

For Olson, A Question Of Rights Deprived

Olson, however, says nobody knows when it's the right time to bring a case like this, and he points to the Rev. Martin Luther King Jr. as his example.

"[King] talked about how civil rights are not won by people who are afraid of losing," Olson says. "You have to push the frontier. You have to demand your rights."

Karlan, however, notes that King was talking about a grass-roots movement, not court actions per se. Ironically, Karlan's observation mirrors, to some degree, the point made by Olson's conservative critics, who argue that if gays and lesbians want marriage, they should get state legislatures to approve it.

But Olson contends that minorities can't wait for an election to win equality. "Almost by definition, if you're an unpopular group, if you're a minority group, you have less influence in the electoral process ... and we have an independent judiciary, so that if you are not in the majority, you have some place to go when your rights are being deprived."

Olson at age 70 is no stranger to controversy or tragedy. Still, an observer can't help but notice how raw he is about this case. He says he has no relatives who are gay, though certainly he has friends. So why is he so emotional?

"It seems to me that my answer to that," he says, "is what would be the matter with me if I wasn't?" Copyright 2011 National Public Radio. To see more, visit http://www.npr.org/.