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. He put the same question to all of them: why shouldn't gay people have the right to marry? "I asked them to give me their best argument. They had all sorts of intangible instincts and feelings about what's 'right,'" he says. "But I didn't hear any persuasive response."
Still, Olson knew he would need help in preparing a sturdy case. Even if he prevails, defendant intervenors will almost certainly appeal; ultimately the case may wind up before the Supreme Court—a possibility Olson clearly relishes. He had no doubt whom he wanted beside him at the plaintiff's table: Boies, his old liberal courtroom adversary and biking buddy. A fearsome litigator, Boies didn't hesitate to take on such a high-profile case. "The current administration has been decidedly halfway on this issue," he says, "and I think the specter of having George Bush's lawyer out in front of a Democratic president is something that, shall we say, might stimulate people to rethink their positions."
It has done that already, not all of it favorable to Olson. Some conservatives have accused him of apostasy, and of trying to bend the Constitution to fit clandestine liberal views. Ed Whelan, a lawyer who worked with Olson in the Bush administration, says his first reaction was "surprise, followed by disgust that Ted would abandon the legal principles he's purported to stand for, like originalism and judicial restraint." But Whelan also knows that Olson—who arrives at work each morning by 6:30 and reads centuries-old law texts in his spare time—is a formidable adversary. "There's a definite chance he'll win. That's what makes it all the more outrageous that he's pushing this."
Many gay activists weren't any happier at first, believing an incremental approach was safer than betting everything on one big case. They feared a loss would be a massive setback. "Racial segregation, for example, didn't take just one case; there were a series of strategic steps," says Molly McKay of Marriage Equality USA. Others sensed conspiracy, speculating that Olson took the case only to throw it. He has since convinced them he is genuine in his conviction that gay marriage is a civil-rights issue.
In fact, Olson is surprisingly emotional about the case, and his eyes mist up repeatedly when he talks about the hundreds of letters—positive and negative—that he's received. "We should be welcoming our gay colleagues and friends as equals," he says. Kristin Perry, one of the plaintiffs in the case, says that whenever Ted sees her and her partner, Sandy Stier, "he tells us, 'I think about you two every day. This is the reason I've taken this case.'" Some conservatives, still trying to figure out what happened to their old friend, have asked him when he decided he was for gay marriage. Olson seems puzzled by the question. "I don't know that I was ever against it."