Straight Ally of the Day: Ted Olson

The libertarian wing of the GOP, which briefly wooed me into that party as the defenders of free speech during the politically correct 1990s, has seemed to be all but dead in the era of Bush-style statism for the rich. But conservative powerhouse Theodore Olson, one of the Right’s most respected constitutional lawyers, remembers that his movement once stood for something more than bailouts for dimwitted financiers.

An unlikely but very welcome ally, Olson is the lead counsel in the federal lawsuit to overturn Prop 8 on equal protection grounds, now pending in District Court in San Francisco. This New York Times profile describes his road to defending GLBT civil rights, and the flack he’s taking from his Republican compadres:

…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.

As he began honing the arguments, he sounded out a few confidants, including his wife, Lady.

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.

Ms. Olson, 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.

Since then, he and Mr. Cooper have been filing dueling briefs.

The Supreme Court has long recognized marriage between men and women as a right, most notably in a 1967 case overturning bans on interracial marriage. Since sexual orientation, unlike race, is not mentioned in the Constitution, the question is whether that right extends to gay men and lesbians.

The answer, in Mr. Cooper’s view, can be found in a 1970 case, in which the Supreme Court refused to hear an appeal of a lower court ruling that marriage could be limited to men and women. But Mr. Olson points to two more recent Supreme Court cases.

The first is a 1996 decision in which six of the nine justices, citing equal protection grounds, struck down an amendment to the Colorado Constitution that stripped gay residents of existing civil rights protections. This, Mr. Olson argues, is similar to Proposition 8’s negating the California Supreme Court decision that recognized the rights of gay couples to marry.

The second is the court’s 6-3 decision in Lawrence v. Texas, striking down laws criminalizing sodomy in 2003. Not only did the majority find that Texas had no rational basis to intrude into private sexual behavior protected by the Constitution’s due process clause, it also declared that gay men and lesbians should be free to enter into relationships in their homes and “still retain their dignity.”

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.

And that is if the state wanted to: Mr. Olson structured the lawsuit so the named defendants are two proponents of same-sex marriage, Gov. Arnold Schwarzenegger and Attorney General Jerry Brown. Both have filed helpful briefs questioning the constitutionality of Proposition 8.

Read the whole article here.

In other Prop 8 news, Bay Area indie newspaper East Bay Express last week broke the story that Oakland Bishop Salvatore Cordileone had been a chief mastermind of the referendum, organizing right-wing religious groups and large donors to raise millions behind the scenes. (One wonders whether this lobbying activity ought to endanger his church’s tax-exempt status.) Cordileone is chiefly known for his dedicated ministry to poor Mexican immigrants.

People are complex, and if our bad deeds cancelled our good ones, who could escape judgment? But still, if the bishop has the clout to raise six-figure contributions from the Knights of Columbus and wealthy businessmen, isn’t it a crime to spend it on taking away same-sex couples’ rights instead of feeding the poor? And if it’s easier to get these Christians to pony up for the former cause than the latter, what does that say about their comprehension of the gospel?