Olson surprises many conservatives by seeking to overturn freedom to marry ban

June 14, 2010

Posted by Robert Barnes on washingtonpost.com:

"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.

... "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.

... "But among those who favor the freedom to marry, 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.

... "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."

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