Ted Olson: Prop 8 Challenge Could Have Global Impact

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.

Comments

[Mike76]

The polygamy issue is not relevant here. One of the purposes of marriage laws is to regulate property. Polygamist marriages would regulate property only with a traditional, or strict, view of polygamy – that is one where a relatively tight circle can be drawn around the members, as in one husband and three wives. In a free society like America though, ‘polygamy’ would have to mean that each man and each woman can have multiple partners so each of a man’s multiple wives could also have other husbands and they other wives and so on and so on until, in theory, the whole country is related through direct marriage. As for regulating property in a case like this, they might as well just be living together.

On another note, prohibiting polygamy does not prevent men or women from marrying. It just restricts the number of people they can marry. Prohibiting same sex couples prevents some men or women from marrying at all. And before you bring up age restrictions, these laws simply postpone marriage, not prevent it.

[Ideal]

Catarina claimed that France will be the next country opening the doors to same-sex marriage. In fact, they analyzed the issue in depth (453 page report and 2 page summary available at link below) and found it essential to PRESERVE male-female marriage. They offer civil unions for same-sex and common-law couples, but they have rightly reserved the "marriage" title for the "natural and fundamental group unit of society".
http://www.preservemarriage.ca/eng/links.htm#FRANCE-REPORT

[Gayle]

@RW and Daniel - The first society was a polygamous and female governed one.

Then along came Christianity to put women in their place, reinvent the spiritual belief system (or steal the already written stories - whatever you want to call it), and dominate with violence over material possessions.

Polygamy died when women became property which is what heterosexual marriage is really about you know, a religious and governmental decree of a man's right to his property.

But mainly, since you were wondering if science has proven it yet, yes anthropologists have already proven that polygamy came first.

[David]

To those homophobes afraid of their own gay shadow, heads up: the world is watching color tv now, black and white is over.

[Robert]

Simply, it's a country based on the Bible and it's doctrine to follow with certain laws set up to protect that Christian country's biblical stance being destroyed in every area to form a country of morality and secularism not ulike Sodom and Gomorrah, what's different!!!!!!!!!!!! And people wonder why Christians are upset? God help us all!

[F.R. Duplantier]

Homosexuals have always been able to get married -- to members of the opposite sex.

[Bubba]

My goodness - those of you pillorying Sandy need to take a formal logic course. Her point is NOT comparing the morality of homosexual marriage to the morality of one marrying their child. Geesh - that is such a tired and lazy analysis. It is to show there will be no philosophical, moral or legal principle to deny anyone marrying anyone else if Prop 8 is affirmed by SCOTUS. Stop being so literal, you humanist manifesto thumpers! :) Another point worth mentioning is that because someone is not accorded positive tolerance (itself a self defeating proposition) doesn't mean they are being oppressed. Homosexual marriage is a sham, and will be even after it is legalized - which I have no doubt it will be. Study sociologists Sorokin or Unwin and prep yourself for what will happen.

Finally, Ted Olson is a positivist in law and belief, and while he has done some good things, he has also sold out before, such as when acting as attorney for convicted Israeli spy Jonathan Pollard.

[Jason]

As I recall, rampant homosexuality wasn't exactly the be-all answer for ancient Rome. Anyone know their history? Homosexuals NEED to have a law that sanctions and officially/legally "makes aberrant behavior acceptable." That's all this is. If the law can be passed, then they can confidently "prove", their lifestyle choices are "okay". But laws don't decide morality. The physiological truths of the human body and the human mind/emotions are NOT compatible with same sex partners. Homosexuality is destructive to the body, to the mind and to the soul. Not only that, everything in this world doesn't always have to be equal. Somethings are inherently GOOD, somethings are inherently BAD. If we continue to create legislation that continues to blur the lines of morality and virtue, then the individual character and the character of this country will continue to erode. And where does it stop? We already have a recognized/organized group very much in favor of men having sexual relationships with little boys. Anyone out there actually going to defend them? What's next? Erasing boundaries is not equivalent with victory or progress, sometimes it's equivalent to moral raping and pillaging, and leaves us ALL unprotected.

[Lucy]

Where are the cultures that have remained once heterophobes achieved societal majority?

[Daniel]

"The issue boils down to a bias towards an individual and restrictions placed on that person based on bias. Man X can be married by Woman Y, but Man Y who is identical to Woman Y except for gender cannot marry Man X. Multiple partners is not an issue because Woman Y cannot be identical to Women U, V and W except for a gender, race, etc factor."

You have a weird definition of "identical." By the logic presented in the quote above "identical" doesn't even need to mean the same gender and yet two separate women (who may very well be identical twins) aren't identical.
I agree with RW. If there is no legal reason to keep the "man and woman" requirement for marriage, why keep the "one" and "one" requirement? I bet science could prove that most people are "biologically" polygamus.

[RW]

@Sandy. It must be nice to assign conditions to legal marriage that don't exist. The ability to naturally procreate is not required as post-pocreative aged opposite sex couples are allowed to marry. My partner and I have adopted two sons through fostercare from heterosexuals who should NOT have procreated. I would argue that our contribution to society is greater than theirs.

The issue boils down to a bias towards an individual and restrictions placed on that person based on bias. Man X can be married by Woman Y, but Man Y who is identical to Woman Y except for gender cannot marry Man X. Multiple partners is not an issue because Woman Y cannot be identical to Women U, V and W except for a gender, race, etc factor.

[Taylor]

Neither of the commenters responding to Sandy touched on her polygamy point, which I think is an excellent one.

If the long-standing "man" and "woman" requirement of marriage is eliminated nation wide, I don't see how the "one" and "one" will hold up either. If same-sex ban supporters are definitionally homophobes, aren't polygamy/bigamy statute supporters polygamaphobes with impermissible motives?

[Catarina]

Hey! Here in Europe a lot of countries are opening the doors to same sex marriage. The last one was Portugal, the next ones are German and France. And its alright, it does not hurt any heterossexual, it does not take any right from heterosexual couples lol
Come on people, open your minds... there's no logical reason to deny marriage to a gay couple. Just homophobics thoughs can justify your resistence :x

[Jerry]

Oh Sandy....I am still sitting here with my jaw down form reading your article. I'm a grandfather and I just have never entertained such thoughts...marry my brother...marry my son??? If you have to use this kind of comparison to same sex marriage....you really are desperate for reasons. I doubt if same sex people considering marriage have those thoughts. Why do you? Rise above this and use intelligent conversation or get help.

[Gayle]

@Sandy - Same sex marriage is not comparable to incest or adultery. Nice attempt at a thoughtful argument but you don't get a cookie. Next!

[Sandy May]

Why is gay marriage even a legal rights matter? Many people can't marry those whom they love and want to be with for the rest of their life. I'm not permitted to marry my brother, or to marry a man who is already married, or to marry my father or adopted son. If there are to be any restrictions on marriage, same sex marriage seems a pretty obvious ban. After all, same sex unions can't create the building blocks of society as heterosexual ones can. In order for same sex couples to have a child they necessitate at least the involvement of one other party, meaning same-sex couples are inadequate units unlike most heterosexual units who are generally autonomously functioning units able to propagate the next generation without another party having to be involved.

[Karen Zarker]

The US is not the frontrunner in gay marriage rights. The statement in the opening paragraph of this article implies that the US is the center of the world, and impervious to 'outside global influences'. Sigh. The effort Olson and others are doing / have done are deeply appreciated, but aye, I hope his arguments on our behalf don't fail to acknowledge that other countries have long since legalized gay marriage -- and their citizens are all alive and well and doing fine.

[Fitz]

"Marriage is neither a conservative nor a liberal issue; it is a universal human institution, guaranteeing children fathers, and pointing men and women toward a special kind of socially as well as personally fruitful sexual relationship. Gay marriage is the final step down a long road America has already traveled toward deinstitutionalizing, denuding and privatizing marriage. It would set in legal stone some of the most destructive ideas of the sexual revolution: There are no differences between men and women that matter, marriage has nothing to do with procreation, children do not really need mothers and fathers, the diverse family forms adults choose are all equally good for children. What happens in my heart is that I know the difference. Don't confuse my people, who have been the victims of deliberate family destruction, by giving them another definition of marriage."

Walter Fauntroy-Former DC Delegate to CongressFounding member of the Congressional Black CaucusCoordinator for Martin Luther King, Jr.'s march on DC

[Bill]

If heterosexuals wish to punish their gay children by banning them from marrying, it is THEY who are the immoral, not their gay children.

And if their reasons for this Apartheid are in fact due to God and Religion, I might point out that if heterosexuals are going to hold their gay children accountable to biblical law in the secular world, they might consider holding THEMSELVES to biblical law as well. Or would that leave us ALL dead by stoning???

Morality indeed.

[jesus Christ]

I can't wait to see this guy stand up to the raging absolutist homophobes who support proposition 8, in court, and the absolutist "justices" on the SCOTUS who we can count on to be prejudiced towards gay rights.

The defendants have failed to provide evidence for their cheap sound bites, and they're relying on the SCOTUS to find some magical evidence to support them.