A Conservative’s Road to Same-Sex Marriage Advocacy

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    Aug 19, 2009 2:36 PM GMT
    August 19, 2009
    A Conservative’s Road to Same-Sex Marriage Advocacy
    By JO BECKER

    Theodore B. Olson’s office is a testament to his iconic status in the conservative legal movement. A framed photograph of Ronald Reagan, the first of two Republican presidents Mr. Olson served, is warmly inscribed with “heartfelt thanks.” Fifty-five white quills commemorate each of his appearances before the Supreme Court, where he most famously argued the 2000 election case that put George W. Bush in the White House. On the bookshelf sits a Defense Department medal honoring his legal defense of Mr. Bush’s counterterrorism policies after Sept. 11.

    But in a war room down the hall, where Mr. Olson is preparing for what he believes could be the most important case of his career, the binders stuffed with briefs, case law and notes offer a different take on a man many liberals love to hate. They are filled with arguments Mr. Olson hopes will lead to a Supreme Court decision with the potential to reshape the legal and social landscape along the lines of cases like Brown v. Board of Education and Roe v. Wade: the legalization of same-sex marriage nationwide.

    Given the traditional battle lines on the issue, Mr. Olson’s decision to file a lawsuit challenging California’s recent ban on same-sex marriage has stirred up stereotype-rattled suspicion on both sides.

    “For conservatives who don’t like what I’m doing, it’s, ‘If he just had someone in his family we’d forgive him,’ ” Mr. Olson said. “For liberals it’s such a freakish thing that it’s, ‘He must have someone in his family, otherwise a conservative couldn’t possibly have these views.’ It’s frustrating that people won’t take it on face value.”

    While Mr. Olson came to the case by a serendipitous route that began late last year with Rob Reiner, a Hollywood director widely known for his Democratic activism, he said his support of same-sex marriage stemmed from longstanding personal and legal conviction. He sees nothing inconsistent with that stance and his devotion to conservative legal causes: The same antipathy toward government discrimination, he said, inspired him to take up another cause that many on the right applauded — a lengthy campaign to dismantle affirmative action programs.

    A hearing in the marriage case, filed on behalf of two gay couples, is scheduled for Wednesday in federal court in San Francisco. Practicing his opening argument recently, Mr. Olson declared that California’s ban is “utterly without justification” and stigmatizes gay men and lesbians as “second-class and unworthy.”

    “This case,” he said afterward, “could involve the rights and happiness and equal treatment of millions of people.”

    Chuck Cooper, who is representing proponents of California’s ban, argues that such a “radical redefinition of the ancient institution of marriage” would require the court to find a right that does not exist in the Constitution — the very type of judicial activism Mr. Olson has long decried. “I never expected him to take this case, or at least not this side of it,” said Mr. Cooper, a friend of Mr. Olson from the Reagan Justice Department.

    The lawsuit comes as societal views on same-sex marriage are rapidly evolving. Six states have now authorized gay couples to marry, and the politics of the issue increasingly defy convention. President Obama, for example, has said he opposes same-sex marriage, while former Vice President Dick Cheney, whose daughter is a lesbian, supports it.

    Even so, Mr. Olson’s involvement stands out. As one of the leading Supreme Court advocates of his generation, he commands wide respect in the legal community, and his views carry considerable weight with the justices, according to Steven G. Calabresi, a law professor at Northwestern University and a leader with Mr. Olson in the Federalist Society, a hothouse for conservative legal theory.

    “While some will think that this is an unpardonable error and rethink their views on Ted,” Mr. Calabresi said, “I think it will cause others to take a second look at the argument he is making.”

    In the gay community, though, conspiracy theories initially abounded that Mr. Olson had taken the case to sabotage it. While many have since come around, fears remain that a loss in the closely divided Supreme Court could deal a setback to the movement.

    Opponents have flooded Mr. Olson with accusatory and sometimes hate-filled e-mail. “A disgraceful betrayal of the legal principles you purported to stand for,” read one message. “Homo” read another.

    Conservative colleagues are kinder, but many remain bewildered. Former Judge Robert H. Bork, a close friend who has called same-sex marriage a “judicial sin,” said he could not bear to speak to Mr. Olson about the case.

    “I don’t want to get into an argument,” Mr. Bork said. “But I’d like to know why.”

    Unexpected Ally

    t November, Mr. Reiner and his wife, Michele, invited two prominent Democratic consultants, Chad Griffin and Kristina Schake, to lunch at the Polo Lounge at the Beverly Hills Hotel. Ten days before, voters had passed Proposition 8, an amendment to the California Constitution negating a State Supreme Court decision that had briefly legalized same-sex marriage. Mr. Griffin, who had come out eight years earlier, said he felt like he had been gut-punched.

    As the friends commiserated and discussed what to do next, an acquaintance named Kate Moulene stopped by. In a phone conversation later that afternoon, she suggested that Ms. Reiner contact her sister’s former husband, a leading constitutional lawyer. His name was Ted Olson, she said, and “knowing him as I do, I bet he’d be on your side of this.”

    “Ted Olson?” Ms. Reiner recalls exclaiming. “Why on earth would I want to talk to him?”

    Mr. Olson’s reputation, after all, went far beyond Bush v. Gore. As head of the Office of Legal Counsel at the Justice Department in the Reagan administration, Mr. Olson had been an architect of the president’s drive to ease government regulation and end race-based school busing and affirmative action set-asides in federal contracting. He later provided assistance to those seeking to impeach President Bill Clinton.

    As Mr. Bush’s solicitor general, in charge of representing the government before the Supreme Court, Mr. Olson became identified with the administration’s broad interpretation of its wartime power in the wake of the Sept. 11 attacks, in which his wife, Barbara, a conservative commentator, was killed. (Mr. Olson nonetheless privately counseled that terrorism suspects be given certain basic legal rights, administration officials said, correctly predicting that failure to do so would lead to Supreme Court setbacks.)

    Still, Mr. Reiner was intrigued. The tactician in him saw the wisdom of hiring a lawyer who had won 44 of the 55 Supreme Court cases he argued; the director grasped the dramatic impact of such a casting decision. He dispatched Mr. Griffin to consult with experts about the feasibility of a federal court challenge to Proposition 8 and to gauge Mr. Olson’s interest.

    “I thought, if someone as conservative as Ted Olson were to get involved in this issue, it would go a long, long way in terms of presenting this in the right kind of light,” Mr. Reiner said.

    In fact, Mr. Olson’s history was more complex than Mr. Reiner imagined.

    Mr. Olson had become active in the Republican Party as a college and law student in California in the 1960s, long before the rise of the religious right and its focus on social issues. He gravitated toward a particularly Western brand of conservatism that valued small government and maximum individual liberty, becoming one of a few law students at the University of California, Berkeley to support Barry Goldwater’s 1964 presidential bid.

    At the time, the South was riven by racial strife, and during a college debate trip to Texas, Mr. Olson got his first close-up view of blatant discrimination.

    Lady Booth Olson, a lawyer whom Mr.
  • Abe13

    Posts: 155

    Aug 19, 2009 8:43 PM GMT
    Finally someone who actually believes in Freedom for all and small government! I'm glad that there are republicans out there who are not afraid to stand up for whats right...and what their political party claims to believe.
    More power to him!
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    Aug 19, 2009 9:18 PM GMT
    Last night I posted a link to the complete article in another thread:

    http://www.realjock.com/gayforums/629442/
  • roadbikeRob

    Posts: 14336

    Aug 19, 2009 9:30 PM GMT
    This is very promising news, a prominent, powerful Reagan conservative is helping in the fight against that horrendous proposition 8 in California. Now there is a conservative that has an open mind and realizes that discrimination against gays is just as wrong and unjust as discrimination against blacks or any other group of people. There is a bright glimmer of hope for the GOP.
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    Aug 19, 2009 9:38 PM GMT
    As a true blue homosexual; the real thing. Who is in a gay marriage; I have two husbands. I don't need government approval, to know I am not a second class citizen.

    I don't need same sex marriage, as marriage is a heterosexual institution, with religus connotations, so I'm more than content with the term "civil unions."

    The homosexuals and lesbians who are fighting to have use of the term "marriage", I feel may be the ones contributing to holding the advancement back.

    Also the troble for some living in a democratic country, is this may not give you what you won't, as in who you voted for, or what you voted for, as in President, or won't.

    But the majority wins, and the majority of people in CA, said they did not won't same-sex marriage in CA, and so some feel left out; not saying it was right or wrong. It's just part of living in a democratic country, the majority rules.

    But can you imagine if it swung the other way around, and the conservatives were trying to turn the decision. The liberals would be saying " but the people had their say, why don't you just leave it alone." because they got what they wonted.

    But no matter what was to come to pass, the fact I'm blessed to have found two men who love, and are committed to me; "WE three", would still be excluded.

    But I'de rather live in a democratic country than under a dictatorship.
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    Aug 19, 2009 9:56 PM GMT
    God_ saidAs a true blue homosexual; the real thing. Who is in a gay marriage; I have two husbands. I don't need government approval, to know I am not a second class citizen.

    I don't need same sex marriage, as marriage is a heterosexual institution, with religus connotations, so I'm more than content with the term "civil unions."

    The homosexuals and lesbians who are fighting to have use of the term "marriage", I feel may be the ones contributing to holding the advancement back.

    Also the troble for some living in a democratic country, is this may not give you what you won't, as in who you voted for, or what you voted for, as in President, or won't.

    But the majority wins, and the majority of people in CA, said they did not won't same-sex marriage in CA, and so some feel left out; not saying it was right or wrong. It's just part of living in a democratic country, the majority rules.

    But can you imagine if it swung the other way around, and the conservatives were trying to turn the decision. The liberals would be saying " but the people had their say, why don't you just leave it alone." because they got what they wonted.

    But no matter what was to come to pass, the fact I'm blessed to have found two men who love, and are committed to me; "WE three", would still be excluded.

    But I'de rather live in a democratic country than under a dictatorship.


    Actually, in a Constitutional Republic (not a Democracy) which America is supposed to be, a majority rule in every decision is exactly what the framers DIDN'T want. They went to a lot of trouble to limit the power of the government and the powers a majority could exercise over others as well as to disperse and dampen power so that to become law, a measure would have to be strongly supported and rigorously debated. The Constitution specifically defines governmental powers and the basic rights of individuals which are not supposed to be abridged. The tyranny of the majority should always be fought.
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    Aug 19, 2009 10:13 PM GMT
    jprichva saidThey're furious with him over at FreeRepublic.com. I know, what a surprise, right? But those who aren't calling him a fag are blaming his wife, a Democrat, for turning him to the dark side.

    Actually my parents were both Republican office holders. And at one point I was elected to my father's county position when he stepped down, as a Republican, too.

    But our version of Republicanism was very New England, that respected the individual above all else. I don't even recognize the Republican Party today, nor do I think my late parents would. I have been voting Democrat for a long time now. I really don't think my own views have changed very much, just the parties, although on social issues I have become more "liberal" with the experience that the years have brought me.

    What I can objectively see is that Republican policies have resulted in one disaster after another, both domestically & internationally. Indeed, I think they can point to no real successes whatsoever, without resorting to absurd spinning of the facts.

    When you consistently fail, I conclude that you are following a failed philosophy. Why would anyone support that?
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    Aug 19, 2009 10:16 PM GMT
    The rise of social conservatism in the Republican party over the last 20 years or so has caused most people to forget that conservatism, in the classical sense, is an ideology that advocates as little government intrusion as possible.

    As paradoxical as it may seem to some, Olsen's support for gay marriage (i.e. it's none of the government's business) is entirely consistent with the classical conservative thinking.

    His support is only puzzling to those who have a more recent view of conservatism that is synonymous with the religious right.
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    Aug 19, 2009 10:19 PM GMT
    bsubioguy said
    Actually, in a Constitutional Republic (not a Democracy) which America is supposed to be, a majority rule in every decision is exactly what the framers DIDN'T want. They went to a lot of trouble to limit the power of the government and the powers a majority could exercise over others as well as to disperse and dampen power so that to become law, a measure would have to be strongly supported and rigorously debated. The Constitution specifically defines governmental powers and the basic rights of individuals which are not supposed to be abridged. The tyranny of the majority should always be fought.

    Bingo. As I've heard it stated before, if we were truly a democracy the constitution would be worthless. The Constitution is what protects the rights of the minority against the tyranny of the majority.

    So many people forget that these days. With ubiquitous opinion polls, we've come to think the only thing that matters is what the majority wants.
  • jarhead5536

    Posts: 1348

    Aug 19, 2009 10:32 PM GMT
    God (wow what a screen name),

    Yes you do need marriage. We all do. Because it is a civil contract explicity recognized by law and accorded specific privileges denied in civil unions, we require marriage. What we do not require is matrimony, which is a religious sacrament. The two are entirely different, as matrimony is not recognized by law. Straight couples have to have a marriage license or else their union is not recognized by anyone outside the church...
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    Aug 19, 2009 10:39 PM GMT
    Olsen, Cheney, and other's views on this issue just point out that we cant assume that people who ascribe to a certain political party actually adpot all of that parties platform beliefs. As pointed out in this article, Obama and other people who may be considered democrat and/or liberal dont always support all the views we think they do.

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    Aug 19, 2009 11:12 PM GMT
    Thank you for posting this. Hopefully this will help educate some folks here that not all conservatives or republicans are evil gay hating, wing nuts as some closed minded people rant about on these forums.
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    Aug 19, 2009 11:12 PM GMT
    Too many people's political identity is so rigid their views on any given topic can be predicted from their views on any other topic, e.g., if he has such-and-such opinion about gay marriage you can be totally sure what his opinion will be on abortion, health care, global warming, gun control, school vouchers, everything.
    Others aren't content to accept uncritically the complete agenda of one party or the other. I have more respect for someone who is willing to grapple with each issue on its own merits than someone who follows in lockstep with either party.
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    Aug 19, 2009 11:15 PM GMT
    TexDef07 said. I have more respect for someone who is willing to grapple with each issue on its own merits than someone who follows in lockstep with either party.


    Amen brother.
  • Tiller66

    Posts: 380

    Aug 20, 2009 5:46 AM GMT
    Thanks for that Kissing Pro,that told me awhole lot more about him then I had ever heard.I really liked the part about beliving in maximum liberty.
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    Aug 20, 2009 1:26 PM GMT
    Finally another Republican who shares my view on marriage.
  • roadbikeRob

    Posts: 14336

    Aug 22, 2009 3:55 PM GMT
    Yes, there is hope for the GOP, a faint glimmer of hope but that is better than total ignorance and intolerance which has plagued the GOP for too long.