Legal News

Ted Olson?s New Chapter

By Ashby Jones

Back in May, when news broke that David Boies was teaming up with Ted Olson in a lawsuit to strike down California’s Proposition 8, which bans same-sex marriage in the Golden State, some LB readers voice skepticism. Why, they wondered, would Ted Olson, a known conservative who represented George W. Bush during the Florida recount litigation in 2000, be taking on such a cause? Was he legitimately committed to gay marriage? Or was he secretly hoping to rush the issue to a U.S. Supreme Court that, at least in its current alignment, might not seem all that receptive to a Prop 8 challenge?

We talked to Olson in May and tried to clear up the mystery. “I’ve practiced law for 45 years and David [Boies] has a number of years under his belt too,” Olson told us. “Neither of us has ever been accused of taking a case to lose. We are going to win this case.”

A lengthy NYT article on Olson out today confirms this notion — that Olson is, when it comes to the issue of same-sex marriage, a true believer.

The piece is a fascinating read; we highly recommend it. It defies a simple bloggy synopsis, so for now, we’ll hit you with our own assortment of highlights:

How does Olson justify his taking on the case? According to the story, Olson “sees nothing inconsistent” his position and his devotion to conservative legal causes: It’s rooted in a dislike of government discrimination. “The same antipathy . . . he said, inspired him to take up another cause that many on the right applauded - a lengthy campaign to dismantle affirmative action programs.”

How are other conservatives reacting? According to the Times, Olson is still within thier fold, but perhaps a bit less comfortably than before. Robert H. Bork, a close friend who has called same-sex marriage a "judicial sin," told the Times he could not bear to speak to Olson about the case. "I don't want to get into an argument," Bork said. "But I'd like to know why."

Could Olson’s presence on the case change minds? It’s possible. "While some will think that this is an unpardonable error and rethink their views on Ted," said Northwestern’s Steven Calabresi, a fellow Federalist Society member. "I think it will cause others to take a second look at the argument he is making." For Olson’s part, he’s confident. Paul Katami, one of the plaintiffs recruited for the lawsuit, recalled Olson's words shortly before it was announced: "He put his arm around me and said, 'We're going to plan your wedding in a couple of years - this is going to happen.' "

Full post as published by Law Blog - WSJ.com on August 19, 2009 (boomark / email).