Hearings to Begin Today in Federal Court Case Over California Gay-Marriage Ban

By
Ted Olson. Photo: Getty Images

In San Francisco today, a federal court will begin hearings in the case of Perry v. Schwarzenegger. Lawyers Ted Olson and David Boies — who faced off in the Bush v. Gore Supreme Court challenge in 2000 — brought forth the case to try to overturn California's Proposition 8, which they say violates the equal-protection clause. The Times this morning has an interesting profile on how Olson, a lifelong conservative who has aided the Reagan and Bush regimes, came to this role. Largely, it had to do with director Rob Reiner. A few days after Prop 8 passed, the Hollywood Democrat bigwig and his wife, Michele, were having lunch with two prominent political consultants and lamenting the vote:

As the friends commiserated and discussed what to do next, an acquaintance named Kate Moulene stopped by. In a phone conversation later that afternoon, she suggested that Ms. Reiner contact her sister’s former husband, a leading constitutional lawyer. His name was Ted Olson, she said, and “knowing him as I do, I bet he’d be on your side of this.” “Ted Olson?” Ms. Reiner recalls exclaiming. “Why on earth would I want to talk to him?”


But it turns out Olson, despite his membership in ultraconservative groups like the Federalist Society, has always been in favor of marriage equality — which he says is in line with his small-government, equal-protectionist views. During the Reagan administration he advised that the Justice Department could not discriminate against gays and lesbians, even though that wasn't illegal at the time, and he chastised the Bush administration for considering trying to write a same-sex-marriage ban into the Constitution. Plus, he's won 44 of the 55 Supreme Court cases he's argued, so the Reiners called him up and convinced him to take the case. He, in turn, brought in Boies.

There's much debate over whether this federal case — which will likely go before a Supreme Court still dominated by conservatives — has come too soon to truly help the gay movement. (The Times also has a rundown of these arguments.) But with unlikely allies coming from such surprising corners (two named defendants in the case, California governor Arnold Schwarzenegger and attorney general Jerry Brown are actually proponents of gay marriage and have filed helpful briefs questioning the constitutionality of Prop 8), the short-term results are definitely unpredictable.

A Conservative’s Road to Same-Sex Marriage Advocacy [NYT]