According to Theodore Olson, the legal challenge to a California measure banning same-sex marriage he is leading with David Boies clearly has global implications. “What happens in this case won’t just affect the people of California, it will affect the country. And what happens in the United States will affect the rest of the world.”
Olson, who co-chairs Gibson, Dunn & Crutcher’s appellate practice, made that assertion while talking to reporters shortly after addressing the annual Outlaw networking dinner. Gibson, Dunn & Crutcher has hosted the dinner in its Connecticut Avenue office for the past four years to give members of the Georgetown Law Center student group that focuses on legal issues affecting gays, lesbian, and bisexuals a chance to mingle with Big Law partners.
Olson’s remarks were styled as a free-wheeling discussion, during which he fielded questions about the case from some of the 60 people who attended the event. He touched on a number of issues, including whether the Supreme Court revealed its views on the case by banning cameras from the California courtroom, what the broader impact of the challenge could be if it is successful, and the emotional effect the case has had on him.
The California case is the first stage of a lawsuit almost certainly destined for the Supreme Court. Olson is spearheading the challenge with Boies, Schiller & Flexner’s David Boies. The pairing of Olson, a conservative, and Boies, the liberal trial lawyer who faced off against Olson in Bush v. Gore, has garnered media attention for the symbolic, bipartisan nature of their challenge to the ban on same-sex marriage in California.
The California trial has finished hearing witness testimony and is waiting for U.S. District Judge Vaughn Walker to set a date to for closing arguments.
Last night, one audience member asked Olson about the Supreme Court’s emergency order halting the move by Walker to permit real-time streaming of the trial. The order said that broadcasting the trial could cause "irreparable harm" to the defenders of Proposition 8’s case because witnesses could be subjected to harassment if they testified in favor of the ban on marriage for gay and lesbian couples.
Olson responded, “The justices just don’t like cameras in the courtroom, and I think they’re wrong. The best thing for the Supreme Court would be for people to see how it works. I think they thought that if cameras were allowed into the California courtroom, it would be that much harder to stop them from entering the Supreme Court. But I don’t see their order as tipping their hands on their thoughts on the case.”
Olson said it’s hard to handicap which justices may side with his position, but his goal is to convince all nine that it is unconstitutional to keep gay couples from marrying. “We’re not taking any justices for granted, and we’re not counting any of them out,” Olson said.
The California trial, which has featured expert witnesses on a host of subjects related to the effects of keeping same-sex couples from marrying, has had a “profound” emotional impact on him. “I have been overwhelmed by the emotion of the people affected by Prop 8. I have been touched by the powerful stories I have heard from them,” Olson said. “And I haven’t heard a justification in my life for this kind of discrimination.”
Olson said people were initially skeptical of him taking on the challenge because of his conservative pedigree. He served as assistant attorney general for the Office of Legal Counsel under President Ronald Reagan and was solicitor general under President George W. Bush. “When my former sister-in-law mentioned my name as someone who might be willing to take the case on, people told her ‘Not Ted Olson! He’s the devil,” he said.
Olson said that he thinks the skepticism has ebbed since the start of the trial. “People said that it was too soon. That we should push the issue state-by-state. But no one could tell me when the timing would be right. It had to happen now because otherwise someone would take this case and not do it the right way,” Olson said.
He said that his and Boies’ case “has good, strong arguments and the right people doing it,” adding “By the way, we’re not going to get to the Supreme Court for a couple of years anyway.”
In response to another question from the audience, Olson said he “expected better” of his opposition in the case. “What was the best evidence they could come up with? That same-sex marriage devalues the institution of marriage? Well, did allowing women to vote devalue the institution of voting? Did allowing mixed race couples to marry devalue marriage? Of course not,” Olson said. “They simply did not have any evidence supporting their position.”
Olson called bans on same-sex marriage “one of the biggest remaining civil rights issues we have.” “This is a position everyone in America should agree with, and I won’t be bashful in making arguments to justices that this is the right thing to do,” Olson said.