A Conservative’s Road to Same-Sex Marriage Advocacy

Today, to the dismay of a number of national gay rights organizations, Judge Vaughn R. Walker of the U.S. District Court in San Francisco denied the request of the "Our Family Coalition;" Lavender Seniors of the East Bay; and Parents, Families, and Friends of Lesbians and Gays (PFLAG) to join Perry v. Schwarzenegger, the federal lawsuit challenging California's Proposition 8 as requested by the plaintiffs' counsel. Meanwhile, the Washington Post has a lengthy profile article on Ted Olson's conversion to a gay rights advocate. Based on a literal reading of the U. S. Constitution and a recognition that "one man and one women" marriage is NOT the all time universal standard the Christianists claim, the "conversion" of Olson and Boises is not hard to understand. Personally, I believe that their argument is right on point and should prevail provided the judges/justices set aside their own religious based prejudices. Here are some highlights from the WP article:

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[I]n a war room down the hall, where Mr. Olson is preparing for what he believes could be the most important case of his career, the binders stuffed with briefs, case law and notes offer a different take on a man many liberals love to hate. They are filled with arguments Mr. Olson hopes will lead to a Supreme Court decision with the potential to reshape the legal and social landscape along the lines of cases like Brown v. Board of Education and Roe v. Wade: the legalization of same-sex marriage nationwide.

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Practicing his opening argument recently, Mr. Olson declared that California’s ban is “utterly without justification” and stigmatizes gay men and lesbians as “second-class and unworthy.” “This case,” he said afterward, “could involve the rights and happiness and equal treatment of millions of people.”

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The lawsuit comes as societal views on same-sex marriage are rapidly evolving. Six states have now authorized gay couples to marry, and the politics of the issue increasingly defy convention. President Obama, for example, has said he opposes same-sex marriage, while former Vice President Dick Cheney, whose daughter is a lesbian, supports it.

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Even so, Mr. Olson’s involvement stands out. As one of the leading Supreme Court advocates of his generation, he commands wide respect in the legal community, and his views carry considerable weight with the justices, according to Steven G. Calabresi, a law professor at Northwestern University and a leader with Mr. Olson in the Federalist Society, a hothouse for conservative legal theory. “While some will think that this is an unpardonable error and rethink their views on Ted,” Mr. Calabresi said, “I think it will cause others to take a second look at the argument he is making.”

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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.’ ”

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Mr. Olson explained that voters cannot impose mandates that violate constitutionally protected rights. The lawsuit, filed in May, he asserted that Proposition 8 had done just that.

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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.

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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.”

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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.
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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.

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Mr. Olson is confident. Paul Katami, one of the plaintiffs recruited for the lawsuit, recalled Mr. Olson’s words shortly before it was announced: “He put his arm around me and said, ‘We’re going to plan your wedding in a couple of years — this is going to happen.’ ”