Ted Olson and I don’t agree on much. I can find plenty to attack from his tenure as OLC chief under Reagan and Solicitor General during Bush II’s first term, and his conduct as head of the Arkansas Project and the head GOP litigator in Bush v. Gore was borderline contemptible. I’ve always respected the guy – if I end up doing as much for the liberal movement as he did for the conservative one, I’ll die a happy man – but I never hoped he would succeed at whatever his cause of the moment was.
Until now. He and David Boies – yeah, I know – have filed a federal lawsuit alleging that Prop 8 violates the Fourteenth Amendment. It is hard to convey just how astounding this is to me. I have always thought that there was a decent Fourteenth Amendment case to be made for marriage equality. But I assumed that I was just unusually bold, and that even liberal jurists would not be willing to make the leap between ruling for equality based on state Equal Rights Amendments to ruling for equality based on the Equal Protection Clause (the difference, of course, being the absence of a specific mention of gender in the latter). But to see Ted Olson, whose approaches to the politics and constitutional interpretation are 180 degrees reversed from mine, not only make that argument but stake his credibility as a litigator upon it is simply astounding. This makes Nixon going to China look like an attempt to curry favor with the base.
The ultimate outcome of the lawsuit depends, as usual, on Anthony Kennedy. He has been consistently good on gay rights issues, but I suspect he would only sign onto a more limited ruling saying that states must have convert civil unions and domestic partnerships into marriages, or else not recognize same-sex relationships altogether, if even that. The best case scenario – a Loving v. Virginia-style invalidation of all bans on same-sex marriage, including DOMA and state constitution amendments – would probably only be possible if someone like a (preferably LGBT) visionary like Pam Karlan or Kathleen Sullivan is appointed to the Court in time to push a 5-4 majority toward a bolder opinion.
But regardless of what comes out of this, to see someone like Olson – who to my eyes has devoted his career thus far to working in favor of various injustices, or at least against remedying them – join this effort is just immensely heartening. For him to put the rights of gay and lesbian people above the political movement to which he has devoted his entire adult life shows tremendous courage. What’s more, it betrays a fundamental human goodness so strong it’s actually kind of beautiful. So thanks, Ted Olson. You just made my week.