Why Ted Olson Supports Marriage Equality

Jim Burroway

August 19th, 2009

Theodore B. Olson (Justin Maxon/The New York Times)

Theodore B. Olson (Justin Maxon/The New York Times)

The New York Times has an in-depth profile of Ted Olsen, the conservative half of the Conservative/Liberal doppelganger legal team challenging California’s Proposition 8 banning same-sex marriage. When Ted Olson announced that he was joining the effort to overturn the ban in federal court, it came as an unimaginably shock to those who knew his work. After all, this is lawyer who had worked to dismantle affirmative action and worked in George W. Bush’s administration where he argued for the expansion of the president’s wartime powers to combat terrorism. This new crusade left his compatriots baffled:

“For conservatives who don\’t like what I\’m doing, it\’s, ‘If he just had someone in his family we\’d forgive him,\’ ” Mr. Olson said. “For liberals it\’s such a freakish thing that it\’s, ‘He must have someone in his family, otherwise a conservative couldn\’t possibly have these views.\’ It\’s frustrating that people won\’t take it on face value.”

But Olson sees his position as perfectly logical and consistent with his anti-affirmative action positions: He believes that California’s Prop 8 represents governmental-mandated discrimination. And he intends to use Justice Antonin Scalia’s blistering dissent in Lawrence v. Texas as an argument for overturning the ban. Scalia acknowledged in his dissent that the majority in Lawrence had indeed opened the door to same-sex marriage. Already, the Justice Department, in a separate case, cited Scalia’s dissent in declaring that the Defense of Marriage Act has nothing to do with promoting procreation. That argument will certainly be an important component of this case as well. In a twist of delicious irony, his angry dissent may turn out the be a huge gift to the LGBT community.

Meanwhile, the parties in Perry v. Schwarzenegger will appear before Judge Vaughn Walker in U.S. District Court in San Francisco today to discuss who will be arguing the case. One issue is whether the ACLU, Lambda Legal, the National Center for Lesbian Rights, the City of San Francisco, or the Campaign for California Families will be allowed to intervene and become parties to the lawsuit. The first three groups sought to intervene despite earlier opposing the lawsuit. Olson’s legal team opposes the move, citing the LGBT coalition’s earlier opposition to the lawsuit. Chris Geidner has a good rundown on today’s hearing.

Olson is a veteran of fifty-five Supreme court cases, having won forty-four of them in his career.

Regan DuCasse

August 19th, 2009

And hopefully this case won’t be the 12th that he loses.

Ben in Oakland

August 19th, 2009

I’ve said this a number of itmes– the failure– nay, REFUSAL– of the no on 8 campaign to address the issues of prejudice, religion, and children was the major reason we lost. Good for Olson and Boies to go irght to the meat of the matter


August 19th, 2009

If anyone still doubts Olson’s sincerity, read this article. It’s filled with vignettes of Olson being a much more independent thinker behind Republican lines than one might expect.

He expects to win, and no one can predict the outcome better than he can.


August 19th, 2009

Win or lose, I have confidence he’s putting all he’s got into this, and that has to shake up the debate in a good way at the very least. These are serious legal arguments that deserve to heard. It’ll be nice to hear this issue discussed seriously on a national scale and not just boiled down into soundbytes like frequently is done during referendum campaigns.

Timothy Kincaid

August 19th, 2009

It’s nice to know that the naked bigotry and the scare tactics may come back to bite the Prop 8 folk in the butt.

It will be fascinating to hear the anti-gays answer the question: “why, exactly, did you use the language ‘Removing the definition of marriage means it’s open to whatever anyone thinks it is, and that includes extreme stuff like polygamy, man-boy love, and multiple partners’?”

Priya Lynn

August 19th, 2009

To be the devil’s advocate Timothy, the answer would probably be “because polygamy, man-boy love, and multiple partners are bad things”.


August 19th, 2009

I don’t think that would necessarily be terribly damaging, Timothy. Different folks have different opinions on the validity of various slippery slope arguments, but I don’t think a judge would see such an argument as proof of bigotry.

No, the stuff they should be more worried about is internal campaign emails… one low-level fundie nut-job staffer writing to another about what the “fags” are up to, etc.


August 19th, 2009

Good luck.

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