Ted Olson, Gay Marriage's Unlikely Legal Warrior Olson became a conservative legal star in 2000, after he successfully argued George W. Bush's case before the Supreme Court in Bush v. Gore. Now, he has raised eyebrows on the left and right by passionately representing those who want to overturn Proposition 8, California's ban on gay marriage.
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Ted Olson, Gay Marriage's Unlikely Legal Warrior

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Ted Olson, Gay Marriage's Unlikely Legal Warrior


Ted Olson, Gay Marriage's Unlikely Legal Warrior

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The most unexpected views, no doubt, come from Ted Olson. He's a prominent conservative lawyer now advocating gay marriage, and leading the arguments against Proposition 8.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: Ted Olson was a rock star in conservative legal circles after he represented George W. Bush in the famous Supreme Court case of Bush versus Gore, and won. A year later, on 9/11, as Olson sat in his Justice Department office, he would hear his wife Barbara's voice for the last time when she called from her cell phone just moments before the plane she was on struck the Pentagon. By then, he was the Bush administration's solicitor general, a job he nearly didn't get.

Democrats fiercely opposed his nomination because of his prominent role in a multimillion-dollar effort to find damaging information about Bill Clinton. He was narrowly confirmed and went on to become the government's chief advocate in the Supreme Court - defending, among other things, the Bush administration's anti-terror policies.

Last week, as a private lawyer, he argued his 57th Supreme Court case. His clients have been varied and on occasion, he's argued contrary positions. In 2003, as the government's lawyer, he successfully defended the McCain-Feingold campaign finance law, proving unfounded reformers' suspicions that his performance might be lackluster. Then last year, representing Republican Senate Leader Mitch McConnell, he persuaded the court to eviscerate much of that law.

Ironically, it was a former Clinton White House aide who was the original go-between in arranging a meeting between Olson and those interested in challenging California's Prop 8. Olson says the case was a natural for him, even though he has no gay family members. And as he discussed it in his office, his eyes repeatedly filled with tears.

Mr. OLSON: If you are a conservative, how could you be against a relationship in which people who love one another want to publicly state their vows and engage in a household in which they are committed to one another, and they become part of the community and accepted like other people?

TOTENBERG: Tears have often come as the case has progressed, even at the law firm late one night, in the library.

Mr. OLSON: This young woman, who is now a young partner in our firm, came up to me and said, we haven't worked together much, and you don't know me very well, but I'm a lesbian. My partner and I have two children, and I can't thank you enough for what you're doing for me. And we both sort of dissolved in tears.

TOTENBERG: But some of Olson's old conservative allies see a very different Ted Olson. Ed Whelan is president of the Ethics and Public Policy Center, a conservative think tank.

Mr. ED WHELAN (President, Ethics and Public Policy Center): I think he's burned a lot of bridges with folks by his, you know, misrepresentation of what's going on in the case, and also just by his abandonment of the legal principles that he had previously professed to hold. I think his action on this case invites a rethinking of his public career and - you know, the question of whether Ted has just been all about Ted naturally arises.

TOTENBERG: Not all of Olson's fellow conservatives are so harsh. Chuck Cooper, the lawyer on the other side in the Prop 8 case, calls Olson a dear friend.

Mr. CHUCK COOPER (Attorney): I know he believes deeply in his side of this case and in the cause that he's advancing, and I respect that.

TOTENBERG: As for gay rights advocates, they largely have welcomed Olson's help, but some do question his strategy. Stanford Law professor Pam Karlan.

Professor PAM KARLAN (Law, Stanford University): I think there are lots of people who are nervous or skeptical about whether this is the right time to be litigating in federal court, given a Supreme Court that might turn out to be either hesitant or outright hostile about marriage equality.

TOTENBERG: Olson, however, says no one knows when is the right time to bring a case like this. And he points to Martin Luther King.

Mr. OLSON: And he talked about how civil rights are not won by people who are afraid of losing. Almost by definition, if you are an unpopular group or if you are a minority group, you have less influence in the electoral process. And we have an independent judiciary so that if you're not in the majority, you've got some place to go when your rights are being deprived.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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