The Conscience of a Conservative

Article excerpt

Byline: Eve Conant

The lifelong Republican who argued Bush v. Gore before the Supreme Court--and won--goes to court this week to overturn California's ban on gay marriage. Huh?

Ted Olson would seem the unlikeliest champion of gay marriage. Now 69 years old, he is one of the more prominent Republicans in Washington, and among the most formidable conservative lawyers in the country. As head of the Office of Legal Counsel under Ronald Reagan, he argued for ending racial preferences in schools and hiring, which he saw--and still sees--as a violation of the Constitution's guarantee of equal protection under the law. Years later, he advised Republicans in their efforts to impeach President Clinton. In 2000 he took the "Bush" side in Bush v. Gore, out-arguing his adversary (and friend) David Boies before the Supreme Court and ushering George W. Bush into the White House. As solicitor general under Bush, he defended the president's claims of expanded wartime powers. (Olson's wife at the time, Barbara, died on American Airlines Flight 77, which was crashed into the Pentagon on September 11, 2001.) Olson has won three quarters of the 56 cases he has argued before the high court. Feather quills commemorating each case, and signed thank-you photos from presidents, cover the walls of his Washington office.

Now once again in private practice, Olson has the time to take on causes that matter most to him. One of them has surprised, dismayed, and outraged many of his conservative friends and colleagues. This week, after months of preparation, he will argue on behalf of two gay couples in Perry v. Schwarzenegger, a federal case challenging Proposition 8, the California ballot initiative that outlawed same-sex marriage in the state.

Olson's brief against Prop 8 is straightforward: laws banning gay marriage not only make no sense, they are unconstitutional. As a conservative, he says he believes in individual liberty and freedom from government interference in the private lives of citizens. Discriminating against people because of sexual orientation is a violation of both. "This case could change the way people think about one another," says Olson. "We are forever putting people into this box or that box, instead of just seeing each other as human beings."

He took on the case last fall, after he received a call from Chad Griffin, a gay activist in California who was part of a team looking for a lawyer to challenge Prop 8. A former in-law of Olson's suggested they reach out to Olson. Griffin was skeptical. "He was the conservative enemy," he recalls thinking. Griffin was surprised to find that Olson was anything but hostile. The two men talked for hours. Olson spent the next several weeks consulting with friends, fellow lawyers, and family, starting with his wife and political sparring partner, Lady Booth Olson, herself an attorney and a Democrat. …