Constitutional Law

Why Ted Olson Agreed to Fight for Gay Marriage

Theodore Olson is known as a conservative former solicitor general who defended U.S. terrorism policies and helped put George W. Bush in the White House through his U.S. Supreme Court advocacy in the case over disputed election results.

Those credentials had some gay-rights supporters fearing that Olson had taken on a case challenging California’s ban on gay marriage with the goal of sabotaging it, the New York Times reports. But Olson has long been troubled by discrimination against gays. He sees his stance as consistent with his view that the government should not discriminate—and that includes reverse discrimination that is part of affirmative action programs.

As a law student at the University of California Berkeley in the 1960s, the Times says, Olson “gravitated toward a particularly Western brand of conservatism that valued small government and maximum individual liberty.” He supported Barry Goldwater for president.

During the Reagan administration, Olson advised that it would be improper to dismiss a prosecutor for being gay, the story says. During the Bush administration, he advised against amending the Constitution to restrict marriage to a union between a man and a woman.

Olson was asked to take on the case by liberal Hollywood director Rob Reiner. “The tactician in him saw the wisdom of hiring a lawyer who had won 44 of the 55 Supreme Court cases he argued; the director grasped the dramatic impact of such a casting decision,” the Times explains.

A hearing in the gay marriage case is scheduled for today. U.S. District Judge Vaughn Walker is expected to rule on a request by Olson and his co-counsel, David Boies, to bar three liberal groups from becoming parties to the suit—the American Civil Liberties Union, Lamba Legal and the National Center for Lesbian Rights, the San Jose Mercury News reports.

Olson and Boies cite past statements by the groups that it is too risky to bring the suit now because of the risk of setting adverse precedent.

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