frenemies

Ted Olson Always Thought Gays Should Be Able to Marry. And That Bush Should Be President

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Gay-ish judge Vaughn Walker today hears arguments from Team Olson-Boies on whether civil liberties groups and the City of San Francisco should be able to join their Perry v. Schwarzenegger lawsuit as plaintiffs, which the famous attorneys and their clients really don’t want. So what better time to analyze the journey we’re on, from a pair of homos wanting to get gay married in California, to a lawsuit that could end up in front of the Supreme Court and decide same-sex marriage rights across the land?

It’s a lengthy and worthwhile profile of Olson that the New York Times runs this morning. From Olson’s perspective, it’s an opportunity to clear the air for gay Americans who remain skeptical of his intentions. (No, he does not want to throw the case ’cause he’s a giant conservative.) From the intimate details of how he got involved to the case, to how Olson rationalizes his tenure with the conservative legal think tank the Federalist Society and his position on marriage equality (while also being former counsel to the Reagan administration). Turns out, these things are not mutually exclusive, because as the Federalist Society believes in a strict interpretation of the Constitution, gay marriage rights actually do exist there and in recent court rulings.

You know, except in California.

In Mr. Olson’s analysis, the situation in California presents a favorable set of facts for an equal protection argument. Proposition 8 created three classes: straight couples who could marry, gay men and lesbians who had married in the brief period before the ban, and gay couples who wanted to marry but now could not.

And that’s where Olson hinges his Constitutional challenge: While the Supreme Court has previously ruled marriage is a fundamental right, how can it permit three distinct classes of people?

And if Olson doesn’t have you loving him yet, consider this:

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. Olson married in 2006, said he still tears up when telling how a black teammate was turned away from a restaurant in Amarillo. Mr. Olson “tore into the owner,” insisting the team would not eat unless everyone was served, recalled the team’s coach, Paul Winters. “If he sees something that is wrong in his mind, he goes after it,” Mr. Winters said.

Years later, during the Reagan administration, when Mr. Olson was asked if the Justice Department could dismiss a prosecutor for being gay, he wrote that it was “improper to deny employment or to terminate anyone on the basis of sexual conduct.” In 1984, Mr. Olson returned to private practice and was succeeded by Mr. Cooper, his adversary in the marriage case. The switch eliminated “what was seen as a certain libertarian squishiness at the Office of Legal Counsel under Ted,” Mr. Calabresi said.

During the Bush administration, Mr. Olson was consulted on a plan to amend the Constitution to define marriage as between a man and a woman. “What were we thinking putting something like that in the Constitution?” he recalls telling the White House.

Around that time, state legislatures were debating alternatives to same-sex marriage like civil unions, but Mr. Olson said he saw them as political half-measures that continued to treat gay men and lesbians as separate and unequal. Over dinner at a Capitol Hill restaurant, he argued that marriage was an essential component of happiness that gay couples had every right to enjoy, recalled David Frum, a conservative author and former Bush speechwriter.

Don’t you just want to hug the guy now?