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Olson surprises many conservatives by seeking to overturn gay-marriage ban

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By Robert Barnes
Washington Post Staff Writer
Monday, June 14, 2010

Cocktails had been served on the terrace, the ubiquitous Washington buffet of tenderloin and salmon consumed, and the gay law students settled in to hear from the famed legal mind who is leading the battle to make sure they have the right to marry whomever they want, wherever in the United States of America they live.

But first, an introduction: The assembled were reminded of Theodore B. Olson's sterling conservative credentials; about his loyal service in President Ronald Reagan's Justice Department; that he was President George W. Bush's solicitor general; that perhaps the crowning achievement in his gaudy career as a Supreme Court advocate was persuading five justices to stop the vote counting in Florida in the 2000 election and acknowledge that Bush had won.

So far, so quiet.

But then Olson took the microphone, and began to describe his crusade to overturn California's Proposition 8 and establish a constitutional right for same-sex marriage. The two gay families he represents are "the nicest people on the planet." He believes to his core that discrimination because of sexual orientation "is wrong and it's hurtful, and I never could understand it." He knows some worry that the lawsuit is premature, "but civil rights are not won by people saying, 'Wait until the right time.' "

This fight, Olson told the law students gathered on a spring evening in the luxe D.C. offices of his firm, Gibson, Dunn and Cruthcher, "is the most compelling, emotionally moving, important case that I have been involved in in my entire life."

Standing O. Another jury persuaded.

Olson will try to repeat the performance Wednesday in a federal courthouse in San Francisco. He will present closing arguments in a potentially groundbreaking trial in which Olson and his political odd-couple partner David Boies -- his Democratic rival in Bush v. Gore -- are asking a federal judge to overturn Prop 8, with which California voters limited marriage to a man and a woman. The suit says that violates the U.S. Constitution's due process and equal protection clauses.

It is the first stop in what is likely to be a years-long, historic journey to the Supreme Court, the Brown v. Board of Education for the gay rights movement. Some critics wonder if it is a bit of an ego trip as well, whether Olson's belief in his own skills could lead to a debilitating loss at the high court.

The case has prodigious legal talent on all sides. Washington lawyer Charles J. Cooper, a star in the same conservative orbit that Olson usually inhabits, is counsel for the California group that sponsored Proposition 8. Chief Judge Vaughn R. Walker of the U.S. District Court for the Northern District of California, first nominated by Reagan and finally confirmed under President George H.W. Bush, drew the lot to hear the case. (He also picked up the San Francisco Chronicle one morning after the trial to see a column reporting that he is gay, an issue about which he has never publicly spoken.)

But no one has attracted as much attention as Olson, a tall and lanky man who is approaching 70 but still wears his strawberry-blond hair in bangs. That the man who was a loyal Reagan lieutenant and defended Bush's anti-terrorism policies is now championing gay rights has been too much for some conservatives. M. Edward Whelan III, whose National Review column is influential in conservative legal circles, called the lawsuit "a betrayal of everything that Ted Olson has purported to stand for."

Paul D. Clement, who was Olson's deputy as solicitor general and then took over the job, said conservatives have "come to terms" with Olson's decision, "but those who never understood it are still scratching their heads."

Olson said people continue to look for a reason -- for instance, there is no family member who influenced his thinking, he said -- because "I'm a mossback conservative and thus not supposed to have these views." But he said that while in the Bush administration, he opposed an attempt to amend the Constitution to define marriage.


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