I'm A Gay Liberal, And Ted Olson Is My Hero

Ted Olson, the Republican super-lawyer, who represented George W Bush in the Bush v. Gore case and went on to serve as Bush's Solicitor General, is my hero. In the wake of the Proposition Eight vote in California, he teamed up with Al Gore's lawyer, Davis Boies, to take up the fight for same sex marriage.

While organizations like the Human Rights Council, who I refuse to support until they change their name to the Homosexual Rights Council, take the path of least resistance, Olson went right for the jugular. Lamda Legal and the ACLU turned down the case, too afraid to make an argument for same sex marriage in federal court. Olson ignored these critics and went ahead with the suit, Perry v. Schwarzenegger (now there's a name to be associated with the sanctity of marriage).



There's a very long list of legal arguments that a lawyer could make in attacking Prop 8. In these sorts of cases, many lawyers are fond of what could be described at process arguments; they go after the way something was done, rather than the true heart of the matter. In a case such as this, a lesser lawyer would have done just that. Olson did not. He argued that the measure to ban same sex marriage was motivated by nothing less than animus towards gays and lesbians as a class of people. There is, quite simply, no more direct argument to make against bans on marriage equality. And still he went further, saying that gays and lesbians were a protected class of people, and that their ability to marry is a clear and fundamental constitutional right. Incidentally, he also absolutely destroyed the witnesses the supporters of Prop 8 brought up.

Olson made these arguments because he believed them, but also because he knew they would work, and work they did. The next big step is the Supreme Court, a forum that Olson is supremely familiar with. Speaking at the Cato think-tank in DC, Olson argued for a different tactic than he had deployed before. Olson knows that

The Supreme Court sometimes likes to take, with respect to these types of issues, the smallest bite that makes a big difference

Meaning that when it comes to such a big decision (and despite Olson's success at the lower level, for the Supreme Court to declare that same sex marriage is a constitutional right would be a very big decision) the Court prefers to make its way incrementally. The nine robed sages like to build up to a big move, going ever further in every opinion until they reach the peak. Such was Brown v. Board of Education. It took a decade of rulings before the Court was prepared to rule, unanimously, against racial segregation in public schools.

Comparisons to Brown are apt in other ways. Black civil rights leaders chose to pursue school integration as a means to an end, that end being legal and societal equality. The gay rights movement, as much as there is one, has also chosen marriage as its means to the end of legal and societal equality. And our leader in this fight is a straight Republican. Not any political advocacy organizations, some of which seem to prefer spending their money on flashy diners and big new headquarters in Dupont. And not well established supporters of civil rights either. Our vanguard, and my hero, is George W Bush's lawyer.


So when Olson faces the Supreme Court, he will not make the same arguments he made in lower courts, because he knows they will not work. Realistically, he can't get Justice Kennedy to say that marriage is a fundamental constitutional right, no matter one's gender. Not yet anyway. So Olson will aim for achieving the first step in what will be many, towards the possible day when the Court will join with where society is going.

Of course that's if the rest of us don't get there first.