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

By Robert Barnes
Washington Post Staff Writer
Monday, June 14, 2010; A01

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.

"This is 'California Ted,' not 'Federalist Society Ted,' " said Lisa Blatt, an attorney who worked with Olson in the solicitor general's office, referring to his upbringing on the West Coast.

There was equal suspicion on the left, mixed with disbelief. As one blogger wrote on a gay Web site last year: "Ted Freaking Olson is now better on gay marriage than our president." President Obama has said he favors civil unions, not same-sex marriage.

But the man-bites-dog aspect of Olson's advocacy has brought a blizzard of publicity: profiles and television interviews and the chance for him this year to write a nearly 4,000-word cover story for Newsweek, "The Conservative Case for Gay Marriage."

"We believe we can change people's minds just by bringing this case," Olson said. "It will give us an audience."

Olson got involved when his former sister-in-law ran into liberal Hollywood activists Rob and Michele Reiner, who were lamenting Prop 8 shortly after its passage in November 2008 and were wondering about a legal challenge. The former sister-in-law suggested they call Olson because she thought he might be sympathetic.

Chad Griffin, a California consultant, was the original go-between for the Reiners and Olson. He had worked in the Clinton White House at a time when Olson was seen as a major cog in the "vast right-wing conspiracy" accused of miring the Clinton presidency in scandal and investigations.

"I never thought there was a single issue I could have agreed with Ted Olson about," Griffin said. "I really saw him as the enemy."

Now, he said, "Those who know him know that this is a man who both professionally and personally cares deeply about this issue."

But among those who favor same-sex marriage, the question remains: Is this the time to bring the issue before an increasingly conservative Supreme Court?

Olson waves away the worries with a combination of legal research and sound bites.

He describes the recognition of the right to marry as a natural progression of the court's precedents. Twelve times, "dating to 1888," the court has recognized marriage as a fundamental right, he said. Add to that the court's 1967 decision in Loving v. Virginia that state laws limiting marriage to people of the same race were unconstitutional.

In 1996, the court struck down a Colorado constitutional amendment that forbade laws offering anti-discrimination protection to gays. In 2003, it overruled a law that prohibited private homosexual acts.

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."

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