Bush's Solicitor Genral Goes to Court to Overturn Proposition 8

Newsweek has some major coverage of Ted Olson's role in seeking to strike down Proposition 8 . Indeed, one story is entitled "The Conscience of a Conservative" and looks at Olson's unlikely roll in what could turn out to be a truly landmark case if Olson (at left in photo) eventually convinces the U. S. Supreme Court that his analysis is correct. A second long article bears the title "The Conservative Case for Gay Marriage" and was written by Olson himself. I find the coverage amazing and interesting because (i) I am a news and political junkie and (ii) I have made somewhat similar arguments in briefs in a case before the Virginia Court of Appeals involving a gay state employee who was fired for being gay. Ted Olson's involvement has huge importance because he cannot be easily dismissed as some far left liberal and because he has the backing of one of California's mega law firms in the case. First, some highlights from Newsweek's story on Olson:
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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. . . . 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.
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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.
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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."
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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."
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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 . . . "There's a definite chance he'll win. That's what makes it all the more outrageous that he's pushing this."
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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."
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Next, here are highlights from Olson's own piece in Newsweek as to why he believes that gay marriage IS a right and why he believes Proposition 8 - and by extension, all state gay marriage bans - are unconstitutional under the U. S. Constitution:
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Together with my good friend and occasional courtroom adversary David Boies, I am attempting to persuade a federal court to invalidate California's Proposition 8—the voter-approved measure that overturned California's constitutional right to marry a person of the same sex.
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My involvement in this case has generated a certain degree of consternation among conservatives. How could a politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations, challenge the "traditional" definition of marriage and press for an "activist" interpretation of the Constitution to create another "new" constitutional right?
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My answer to this seeming conundrum rests on a lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, and on my rejection of what I see as superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights.
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Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities.
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Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation's commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.
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Sadly, our nation has taken a long time to live up to the promise of equality. In 1857, the Supreme Court held that an African-American could not be a citizen. During the ensuing Civil War, Abraham Lincoln eloquently reminded the nation of its found-ing principle: "our fathers brought forth on this continent, a new nation, conceived in liberty and dedicated to the proposition that all men are created equal."

At the end of the Civil War, to make the elusive promise of equality a reality, the 14th Amendment to the Constitution added the command that "no State shall deprive any person of life, liberty or property, without due process of law; nor deny to any person É the equal protection of the laws."
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Subsequent laws and court decisions have made clear that equality under the law extends to persons of all races, religions, and places of origin. What better way to make this national aspiration complete than to apply the same protection to men and women who differ from others only on the basis of their sexual orientation? I cannot think of a single reason—and have not heard one since I undertook this venture—for continued discrimination against decent, hardworking members of our society on that basis.
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The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.
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What, then, are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive. The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons.
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The second argument I often hear is that traditional marriage furthers the state's interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. . . . This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children.
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The simple fact is that there is no good reason why we should deny marriage to same-sex partners. On the other hand, there are many reasons why we should formally recognize these relationships and embrace the rights of gays and lesbians to marry and become full and equal members of our society.
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When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.
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I understand, but reject, certain religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural; and I take strong exception to those who argue that same-sex relationships should be discouraged by society and law. Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual. To a very large extent, these characteristics are immutable, like being left-handed. And, while our Constitution guarantees the freedom to exercise our individual religious convictions, it equally prohibits us from forcing our beliefs on others.
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We once tolerated laws throughout this nation that prohibited marriage between persons of different races. California's Supreme Court was the first to find that discrimination unconstitutional. The U.S. Supreme Court unanimously agreed 20 years later, in 1967, in a case called Loving v. Virginia. It seems inconceivable today that only 40 years ago there were places in this country where a black woman could not legally marry a white man. And it was only 50 years ago that 17 states mandated segregated public education—until the Supreme Court unanimously struck down that practice in Brown v. Board of Education.
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Reactions to our lawsuit have reinforced for me these essential truths. I have certainly heard anger, resentment, and hostility, and words like "betrayal" and other pointedly graphic criticism. But mostly I have been overwhelmed by expressions of gratitude and good will from persons in all walks of life, including, I might add, from many conservatives and libertarians whose names might surprise.. . . I have no doubt that we are on the right side of this battle, the right side of the law, and the right side of history.
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Some have suggested that we have brought this case too soon, and that neither the country nor the courts are "ready" to tackle this issue and remove this stigma. We disagree. . . . If all citizens have a constitutional right to marry, if state laws that withdraw legal protections of gays and lesbians as a class are unconstitutional, and if private, intimate sexual conduct between persons of the same sex is protected by the Constitution, there is very little left on which opponents of same-sex marriage can rely.
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Americans who believe in the words of the Declaration of Independence, in Lincoln's Gettysburg Address, in the 14th Amendment, and in the Constitution's guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues. This is not a conservative or liberal issue; it is an American one, and it is time that we, as Americans, embraced it.

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Olson is correct and all of us should wish him success. A victory would mean a death knell to much of the religious based discrimination against LGBT Americans still written into far to many state and federal laws.