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Olson surprises many conservatives by seeking to overturn gay-marriage ban
Opponents of same-sex marriage point out that the court let stand a decision in which lower courts found constitutional a state's right to limit marriage to a man and a woman. Olson said that was 40 years ago.
Andy Pugno, general counsel for Yes on 8, said Olson's arguments ignore simple facts.
"There is no federally protected right to same-sex marriage, and it was perfectly rational for voters to adhere to a traditional definition of marriage and to decline to experiment with other kinds of marriage," he said.
Olson argues that "tradition" would have meant that it was illegal for Obama's parents to marry. Pamela Karlan, an opponent of Prop 8 and co-director of the Supreme Court Litigation Clinic at Stanford Law School, is not as confident in the court as Olson.
"I wouldn't want to be up in front of this Supreme Court" to ask for a constitutional right to same-sex marriage, Karlan said. "My own hope is that the voters of California will vote to repeal [Prop 8] before this case ever reaches" that stage.
Five states and the District of Columbia allow same-sex marriage, most because of court decisions. Thirty states have constitutional provisions that limit marriage to a man and a woman; others have statutory restrictions on same-sex marriage.
Olson said he sees no conflict between his conservative beliefs in democracy and his efforts now to have the courts overturn a referendum approved by voters.
"Whenever minority rights are put to a popular vote, the minority loses," he said. California's situation is especially complex, because 18,000 same-sex couples married during the period when the state supreme court allowed it and voters amended the state constitution to forbid it.
Olson, who has argued 56 cases before the Supreme Court, said it is "inevitable" that the court will decide the issue, and told the law students that the case he and Boies are preparing represents the best chance to win.
Asked by one student at the dinner whether he had suffered for taking the case, Olson told his own small story of discrimination.
As a form of protest, he said some conservatives have urged others to withhold money from the Republican National Committee, which has hired Olson for the latest challenge to campaign finance laws. But he took note of his audience's political views and added that that is "something that most of you probably would not mind."