Ted Olson: "You can?t say ['It's too soon'] to people who are suffering from discrimination and want the assistance of lawyers to present their case."
Jason Doiy, The Recorder
Theodore ("Ted") Olson has argued 59 cases before the U.S. Supreme Court, but his 60th argument before the justices has the potential to be the one for which the Gibson, Dunn & Crutcher partner will be most remembered.
In March, the court will hear Hollingsworth v. Perry, the challenge to Proposition 8, the 2008 ballot initiative that amended the California constitution to eliminate the marriage rights of same-sex couples. Olson and his co-counsel, David Boies of Boies, Schiller & Flexner, hope to persuade the court that Prop 8 itself violates the U.S. Constitution.
But even supporters of marriage equality worry that it's too soon to bring a case like Perry before the court. (The other case that the justices will hear in tandem with Perry is considered to have better odds. In U.S. v. Windsor, advocates of marriage equality seek to overturn the section of the Defense of Marriage Act that bars the federal government from recognizing same-sex marriages performed in the states in which they're legal.)
In an interview, Olson explains why he thinks the time is right for his case. An edited version of the conversation follows.
You've said before that you think all of the justices are potentially winnable. Justice Scalia recently made well-publicized remarks at Princeton University in which he again reiterated his opposition to marriage equality. Do you still think he's potentially winnable?
Well, I've said it slightly differently. David and I have both said that we're not taking any justice for granted, and we're not writing off any justice. We're trying to structure our arguments so that they would appeal to each and all of the justices. I'm aware of this recent controversy about Justice Scalia, and I'm also aware that it's based upon things he's said in dissenting opinions, which most people would say are not favorable to our side of the case. But we want to see if we can find an area where he would be comfortable with an outcome favorable to us.
Justice Scalia said that a society should be able to adopt "moral sanctions." How would you respond to that argument?
It would depend on the context in which it came up, but there are findings in this case that sexual orientation is an immutable characteristic. It is not a question of violating moral standards—it is a condition that we're are born with. I like to say that I didn't choose to be heterosexual, and our clients have all said that they did not choose to be homosexual. So we would focus on that, to the extent that the issue of morality comes up.
Several stories have discussed how you became involved with this case—the director Rob Reiner was talking about a challenge to Prop 8 at a Los Angeles restaurant when a mutual acquaintance suggested that he get in touch with you. What happened next?
Rob and his wife, Michelle, were talking about the fact that the then-pending challenge to Proposition 8 was based on the California constitution alone. But at some point, a federal constitutional challenge was going to be brought by someone, and that that case needed to be well-structured, involving the right plaintiffs and the right lawyers, and with the right resources, so that if it was to go to the U.S. Supreme Court, it would be the right case to do so in all respects. They were talking about that, and they were overheard by my former sister-in-law, who said, "You ought to contact Ted Olson." They expressed some skepticism, because I'm known to be a conservative. She said, "You might be surprised—why don't you call him?"
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Ted Olson is not a conservative. The true conservative position is to leave this issue to the political branches and in those branches argue for traditional marriage. Unfortunately, judges from Hawaii to Vermont have for 20 years now interfered in the political process. Who knows where public opinion would be if judges had not exceeded their authority. A real conservative would not now seek to bulldoze one of the historical fundamental pillars of society (opposite sex marriage).
In any event, sexual orientation is of course genetically influenced (as is alcohol dependency) but there is no evidence it is genetically determined. Judge Walker's contrary "findings" are meaningless--as if a judge can decide questions of science. Query to Judge Walker: Which gene determines bisexuality?
But, whatever the influence of genetics, that doesn't mean that society cannot have moral standards that it expresses through its laws. Olson and his cohorts want every 5-year-old child in America to be taught that same-sex marriage is a good thing and they should aspire to it. What kind of conservative effect do you think there will be on our crumbling society when Johnny has six fathers and no mother at all—after gay surrogacy and two divorces of his gay parents?
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