Gay Rights Groups to Ted Olson: Thanks, but No Thanks

Why gay-marriage backers don’t want the conservative lawyer to challenge Prop 8.
Former solicitor general and ultraconservative lawyer Ted Olson is a rock star of the US Supreme Court bar. He’s argued more than 50 cases before the high court during his career and won more than three-fourths of them. So on Wednesday, when he signed on to a lawsuit challenging the constitutionality of California’s Proposition 8, which bans gay marriage, he looked like the great white hope for a cause that’s had only mixed success in the nation’s courts. If anyone could prevail in this case, Olson could. So gay rights groups must be thrilled that he’s thrown his significant legal weight and conservative bona fides behind their cause, right? But they’re not—not at all.
The country’s major legal groups defending gay rights, including the ACLU and the Lambda Legal Defense and Education Fund, don’t think Olson is doing them much of a favor. They are upset about the lawsuit, in large part because they think it will fail. A loss could be a major setback not just to the gay marriage movement but to other established gay rights governing adoption and foster care, employment discrimination, and other matters. Pushing the case to the Supreme Court, they contend, could do serious harm.
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When the lawsuit was announced Wednesday, some at the press conference raised these concerns and asked whether the lawsuit might be premature, a question that prompted one of the more mind-boggling scenes in civil rights history. In response, Olson—Ted Olson!—argued that justice delayed is justice denied. This put him to the left of the ACLU on one of the nation’s most contentious social issues of the day. He acknowledged that some may disagree about the timing of the suit. But he explained that when gay people came to him and said that their constitutional rights were being violated, that they wanted to be married and have the same rights as other Californians, he could not, as a lawyer, say, “Why don’t you just wait another 10 years, 15 years?” He added: “We think they’re right. We think their constitutional rights are being denied, and we’re going to help them achieve that equality.” Basing his arguments on those that prevailed in the famous Supreme Court decision Loving v. Virginia, which overturned a ban on interracial marriage, he contended passionately that the time for this case had come, despite what ACLU attorneys might think.
A spokesman for the American Foundation for Equal Rights, which is funding the lawsuit, wouldn’t say who recruited Olson for the effort. But it’s clear that whoever is backing the effort put up a boatload of money. The spokesman said that Olson and his co-counsel, David Boies, who represented Al Gore in the 2000 election litigation, are handling the case through a mix of paid and pro bono work donated by their firms. Rumor in Washington legal circles is that Olson commands upwards of $1,000 an hour for his Supreme Court work, meaning that even if some of his work is pro bono, his time on this case will cost a small fortune. While Olson and company have so far refused to disclose who’s paying for their work, the PR firm running the media operation, Griffin | Schake, has close ties to Hollywood liberals like Rob Reiner and Jerry Zucker. Nor will the foundation make public all of its board members. Chad Griffin, one of the partners in the PR firm and so far the only disclosed board member of the foundation spearheading the lawsuit, worked in the Clinton White House. It sure looks like the work of the liberal elite.
But conspiracy theorists on the Web—where else?—are already postulating that Olson has signed on so that he can take the case to the Supreme Court and lose, thus wrecking already well-established gay rights everywhere. But at the press conference, Olson disputed the notion that he was a saboteur. “I hope that people don’t suspect my motives. I feel very strongly that this is the right position,” he said.
Still, you can understand why some liberals might be suspicious. Olson is the godfather of the conservative legal movement, having been in the room for the founding of the influential conservative group the Federalist Society. His former law partner is one-time independent counsel Ken Starr, who argued in favor of upholding Proposition 8 before the California Supreme Court in March. Olson represented Ronald Reagan during the Iran-Contra investigation. A prominent Clinton-basher during the 1990s, Olson helped prep Paula Jones’ lawyers for their Supreme Court appearance that resulted in her sexual harassment lawsuit proceeding against a sitting president—and that ultimately led to the whole Monica Lewinsky debacle. Olson was heavily involved in the "Arkansas Project," Pittsburgh billionaire Richard Mellon Scaife’s effort to funnel nearly $2 million through the American Spectator magazine to pay private investigators to dig up dirt on the Clintons. (The project was launched from Olson’s law firm.)
As one of the nation’s preeminent litigators, Olson has used his formidable skills to defend (unsuccessfully) the Virginia Military Institute’s decision to exclude women and to undo affirmative action policies in publicly funded law schools. And of course, he represented George W. Bush during the 2000 election fight that went all the way to the Supreme Court. This history makes his presence in the anti-Prop 8 litigation all the more curious.
Nonetheless, at Wednesday’s press conference, he made the quiet argument that Dick Cheney should have when questioned about his lesbian daughter during a vice-presidential debate. When asked whether his decision to take the case had been inspired by a close friend or family member who was gay, Olson said, “I suspect there’s not a single person in this room that doesn’t have a friend or family member of close acquaintance or professional colleague and many of them who are gay. And if you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally like the rest of us and not be denied the fundamental rights of our Constitution.”
Olson was put on the spot about his association with conservative organizations, and he insisted that he had never been a part of any organization that he considered anti-gay, which is sort of disingenuous considering that he worked for both Ronald Reagan and George W. Bush, who were both anti-gay in their policies—especially Reagan, who studiously refused to address the AIDS epidemic for years as thousands of gay men died. Still, a review of the public record does indicate that Olson has not joined the right’s anti-gay efforts.
In 2001, Salon reported that Olson worked on the Romer v. Evans case in 1996, assisting those defending a Colorado anti-gay rights ballot initiative that was ultimately overturned by the Supreme Court. But lawyers involved in that case say that Olson had nothing to do with Romer, even though many of his conservative colleagues like Robert Bork did. And Olson tells Mother Jones that he played no role in that legal battle.
He has told reporters that he has long privately supported equality for gay couples. Wednesday's press conference certainly qualifies as a major coming-out party. Olson's drive to fast-track gay marriage to the Supreme Court may make the ACLU and others nervous, but if someone as conservative as Ted Olson is ready to get up in front of the cameras and say the issue’s time has come, perhaps it has.
Update: Read more about Ted Olson and his strange bedfellows here.
Comments
It's stupid to oppose the
MtnGoat, I don't think it's
Gay Tights Groups to Ted Olson: Thanks But no thanks
Say what?
I agree completey
It should be handled in State Courts not Federal ... please !!!
Let these guys donate their time to LAMBDA and ACLU, rather than hog the limelight.
I am confused
A broad ruling could be devastating
I agree with your overall point, but...
"protected groups"
The concern here is that
Problem with the status quo
I'm not certain that a
Thomas/Scalia favoring Prop8 prescient and erudite.
A trap?
I share the same idea about
I share the same idea about Ted Olson and this being a trick/trap/Trojan Horse. I can remember both Ted AND HIS LATE WIFE (Barbara I think) coming after Clinton like gangbusters on a par with Ken Starr!! When you consider and review his record, and look closely at what he stood for and probably still stands for, this defense of gay marriage is waaaaaaaay off base for someone like him. Big money could be behind this action from either side. The right-wing patriot type/religious gay haters could see an opportunity to get it before the "Supremes" hoping and praying it will be banned and struck down since the court is quite conservative. If that happens, Ted Olson loses NOTHING. His "backers" will be disappointed of course, but all he has to say is that he tried. If it is "liberal Hollywood elite" bucks backing him, maybe he is doing it for the money. Consider this: I don't see the "Ted Olsons" of the world supporting gay marriage. Whoever is backing him has chosen him because he is familiar with the SCOTUS in terms of legal argument, and he is not involved in any anti-gay activism which allows him to "cloak" himself. I strongly hope I am wrong about his motives. But when you do the math and look at his "record", it adds up very very wrong. It's a win/win situation for him even if he loses. If he should prevail, and the court rules against gay marriage, that's it. The states--basically out of it and the law becomes the law. It could well be Pandora's box wrapped up in pretty paper with a pretty bow.
Supreme Fear
Supreme Fear
Spelling
Do we want OUR version of Plessy v. Ferguson??
"protected groups"
Ted Olson is great lawyer
I question the motivation by
new leadership
you want new leadership? steer far away from EQCA and head straight for www.couragecampaign.org The Courage Campaign is the most organized, well run, bottom up organization to come along in California in a long time. Thank you Courage!
What is the point of taking things one step at a time?
"If we lose this lawsuit, file another one and another one...."
Why don't you go work for abortion rights or ending DADT?
I appreciate your passion but the tactics you recommend are worse than a bull in a China Shop. And I don't think President Obama is afraid of anything. I trust him far more than you.
Realities?
Like it or not, your frustration will not trump legal realities.
Activist vs the same thing that hasn't been working
Clarification
Rod Tanner's Rice Bowl
Suddenly a gay rights activist?
What some people fail to
Same-Sex Marraige?.?.?
Ted Olson
At the Mercy of Mob Rule or the Rule of Law?
A suggestion
One of the reasons that the Right is so good at what they do is that, more often than not, they are patient, patient people. Lose ground in the 60's? Rebuild and retool for decades, until you get the Contract with America and the Gingrich revolution. It's the same with any issue. The anti-choicers now are using "partial-birth" and "parental notification" strategies to chip away slowly but surely at Roe v Wade rather than trying to overturn the decision wholesale.
In short, they're ruled by cold, cold logic. While they possess the same type of deep and abiding passion for their causes as we on the Left do, they do not let that passion rule them. Rather, it seems they let that passion sustain them and fuel almost infinite patience as they watch their water drip-drip-drip, knowing that it will eventually eat through the stone.
We progressives need to be the same - fueled by passion, letting that passion sustain us and motivate us to be as creative and energetic as possible, but allowing our actions to be ruled solely by bloodless logic. Strategy must be dictated by one thing and one thing only: what LOGICALLY predicts the most amount of success in the shortest amount of time, looked at in both the short-term battle and long-term war.
The battle for same-sex marriage is one that cannot be ruled by those who are impatient enough to say, "full speed ahead and damn the torpedoes" - that in and of itself is as clear a sign as any that a person is ruled by emotion rather than reason. Likewise, it should not be ruled by those who have an overriding fear of failure, as that, too, is when passion conquers logic. Rather, the leaders in that fight must be dispassionate, letting logic and only logic dictate the best course of action.
The hard fact is simply thus: your passion is irrelevant to actual victory except insomuch as it motivates you to take steps along a plan dictated by logic. The sad truth of American democracy, and perhaps human nature, is that no matter how much it hurts to acknowledge it, your pain and sorrow, your joy and wonder, are irrelevant to actual victory. Rather, if you let them rule you, they can lead to an imprudence that ultimately causes defeat.
In order to win, we must be as cold, bloodless, and patient as the Right - and as willing to acknowledge harsh political (and legal) reality. While debate on where exactly lies is healthy and helpful to the movement, how that reality makes you feel is, unfortunately, completely irrelevant. The sooner we all acknowledge that painful truth, the more easily we will move forward together.
/rant
/rant ... THIS IS AN AWESOME COMMENT.
Thank
you
very
much.
Sorry, that last paragraph
Sorry, that last paragraph should read:
In order to win, we must be as cold, bloodless, and patient as the Right - and as willing to acknowledge harsh political (and legal) reality. While debate on where THAT exactly lies is healthy and helpful to the movement, how that reality makes you feel is, unfortunately, completely irrelevant. The sooner we all acknowledge that painful truth, the more easily we will move forward together.
A suggestion
All useful advise but you neglect two very important things.
(1) All of this is politics. Pure stategy - the way of the slow plodding turtle - may get you where you want to go eventually, but the long view isn't how politics work. Politics is about passion and also watershed moments - a tipping point if you will.
(2) The struggle between what we call the Right and the Left now will never go away. That is pretty much an eternal struggle. We can never achieve victory over the right - we can only move the goalposts. This debate is about moving the goalposts - making the debate not about whether we permit gay marriage but HOW we permit it.
The point is that I believe that we are at a tipping point or watershed moment with gay marriage. We've plodded for a long time and now we have a unique opportunity and a unique set of circumstances that could get us over the top. All we lack at the moment is the will to push this over the top. Yes, there is risk here, but all things like this contain great risks - as well as the potential for great advance.
I could make this very long and very detailed, but let me point out a couple of things that you may not have put together in one place.
John McCain's campaign manager recently chided the GOP for their harsh stance on gay marriage.
Antonin Scalia wrote in his dissent to Romer v Evans that the majority has removed all constitutional basis for denying same sex marriage and he has also stated that federalist principles may require conservatives to accept same sex marriage.
Dick Cheney (I shutter while I write this) recently stated that same sex marriage should be a state issue and that all people are entitled to freedom (in reference to marriage equality).
The right is starting to run out of steam on this issue. It took an incompetent opposition and over $ 40 million dollars for the Catholic and Mormon churches to scare the hell out of a thin majority of people to get Proposition 8 passed this time. When the case went in fron of the Supreme Court, even the republican governor suggested that the court should overturn the Proposition.
This year, in a few short months we've had four states added to the list of states offering gay marriage. New York has the issue on it's plate and New Jersey may not be far behind. One of those states is IOWA. The conservates cannot even easily get a proposed Constitional amendment out of the legislature in IOWA!
Many legal scholars do not think that the California Supreme Court recent decision can get a pass on 14th Amendment grounds in the federal courts because they set up a separate but equal scheme that is by definition a presumptive violation of the 14th Amendment. It's hard to imagine what kind of pretzel logic conservates might have to use to get this one by.
Finally, polls are mixed but for the most part the differences between those who would accpet same sex marriage and those who would oppose it are very close and in many places within the statistical margin of error.
We CAN push this over the top by abandoning our bloodless, cold, logical approach to this and appeal to justice with passion and energy. Yes, these things don't play very well with the court, but whether you believe it or not, the court does not operate in a box - they read and understand where the winds are going. Right now it only takes one justice and he (Kennedy) is on record as the author of the Romer decision as rejecting the main legal arguments against gay rights. We probably have the votes and some Court experts believe that Alito and Roberts may join a majority on federalist grounds. If so, we might have 7 votes and the whole magilla.
How can we not take this chance? As one half of one of those 18,000 marriages declared legal I cannot make a moral argument for not fighting like hell to give every gay man and woman in this country a chance at the happiness I've experienced by getting married.
TO: aribenyaakov the warrior
Sorry, sir, your eagerness to take risks with the rights of others drastcially undercuts the credibility of your argument. Frankly, I doubt you are who you say you are. And I "shudder" to think what will happen if you are wrong.
Gay Rights - Proposition 8
The People voted against gay rights, that's it ! The people have spoken out numberously about what they want to be the recognized law of the land. By continuing this ridiculous battle, the gays are infringing on the rights of the majority of the people. This decision is one for the people to decide, not the Supreme Court. The people have spoken.
The people can not be
The people can not be trusted with an issue like this, because the people are and always will be biased. The point of the Supreme Court, and always has been since John Marshall, is to settle these kind of disputes. If it wasn't for the Supreme Court schools would still be segregated.
i am not gay but they should
i am not gay but they should pass this. just let them be.
WASTE INDUSTRIES CYBER STALKING HOME INVASION POISONINGS WHITE C
I have a psycho white collar crimminal prowler named Michael T. Ingle stalking my family in South Carolina sending us death threats and breaking into my home putting poison in our food and drink. I have been fighting with these crimminals at Waste Industries since 2004 about cyber stalking and child porn stalking in Fayetteville, NC in the waste disposal industry and I began recieving death threats immediately after my friend/accounts payable manager passed away at Waste Industries in Durham, NC. I am sure she was Murdered as it turned out that her Sister died just a few days later and the Family told me at the Funeral they felt it was due to a Poisoning. The Waste Industries in Durham, NC is very much currently involved in Republican Corruption and the FBI has got involved locally here in South Carolina and been sending Death Threats to my Family. I complained that our branch manager Michael T. Ingle was stalking my 15 year old Little Brother in the middle of the night with the Waste Industries corporate computer network for his Classmates chat logs and webcams and he began to act like a complete psychopath after he transfered out of state to Atlanta, Ga and began threatening me with Poisoning due to his "wife and kids". I began noticing that when I got in my truck to drive I felt like they were using the NC State radio station to harass,insult,stalk and intimidate me to keep me from talking about what looks like some form of "Christian Cover Up "Excuse" for Child Pornography Scandal" involving their belief that the Patriot Act gives them the right to stalk any teen or unsuspecting woman in the community they feel like stalking for their emails, chat logs, sexting and/or sex tapes. This has degraded into a "Republican Sex Scandal" and Celebrity Stalking in the Carolinas and they are so deep into Federal Crime now all they have left are Threats of Violence, Home Invasion and Poisoning. I Refuse to back down from this kind of Trash Corruption, my step-father is retired from Pope AFB and he works in civil services and my Mother has been continuing to go to work at CVS everyday where she is the manager of the 24 hr store in N. Myrtle Beach even though some "Weird Pervert Psychopath" is Stalking her, probably ( I'm sure ) Masterbating to her bank records w/ the Patriot Act and harassing her everyday following her around town obsessing over her position with CVS because he's jealous. I was born in Modesto, I went to Modesto high and this cyber stalking crimminal at Waste Industries "cooked up" a scheme to Posion me with Prostate Cancer medications by Stalking my home w/ Domestic Eavesdropping equipment & setting up Home Invasions and now I have been waking up ever since with Semen Emissions in my Underwear like as if I was 12 again.. this was a sick perverted social networking scheme by a "Sexual Sadist" in the workplace to create a copycat like crime after what Scott Peterson did to Lacy Peterson because I was born in Modesto, Ca and he was jealous because the republicans here are corrupt and involved in Cocaine Trafficking up Interstate I-95 from Atlanta,Ga through Lumberton, NC - ( Operation Tarnished Badge ). I believe my contractor/boss Michael T. Ingle became jealous of me because I owned my own commercial painting buisness, made other contacts in the industry at Waste Management,GDS & Republic that he could not control, accused me of being a "faggot" for listening to drum'n bass, a "satanist" for listening to heavy metal, and a "terrorist" for using social networking sites because I believe they are jealous that I still have a friends in the community that I can socialize with when they sit up in the middle of the night and "troll" the community. I know for a fact that they were using the Waste Industries computer network to hack into Underage Teens computers leaving Keyloggers in their computers at home to try to collect Child Porn and when he hacked our computer in my 15 year old little brothers bedroom in the middle of the night, repeatedely, and stole our bank account numbers/records & he became jealous of my family for having money and began stalking my Mother because he felt she should not have a better job than his wife because his wife attended UNC for 4 years. My mother has worked for CVS for 15 or more years and recently trained the CVS stores in Northern California when they acquired Longs drugs. I believe these are just desperate "republican crooks" trying to terrorize people in the community because they are jealous that Obama is the new president. I cannot get help from the local police or FBI because they try to say that I am just imagining all of this. Always one step ahead of the curb!--
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Always one step ahead of the curb!
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