by Becker, Jo
Ever since a 2003 ruling by the Massachusetts Supreme Judicial Court had made that state the first in the nation to allow gays and lesbians to marry, the issue of same-sex marriage had been used as a potent political wedge issue. Republicans put bans on the ballot in presidential swing states to try to drive their base of evangelical conservatives to the polls.
Democrats weren’t much better. Politicians like Senator Dianne Feinstein publicly blamed the push to legalize same-sex marriage for helping to reelect George W. Bush president in 2004, though there was little evidence to support that claim. “The whole issue has been too much, too fast, too soon,” she had complained at the time. “People aren’t ready for it.”
And it was President Clinton, Chad’s political hero, who had signed into law the Defense of Marriage Act, which defined marriage as a union between a man and a woman for the purpose of denying legally married same-sex couples federal benefits available to married heterosexuals.
It was not, as Clinton claimed when he signed the bill into law, that he truly “opposed governmental recognition of same-gender marriages.” It was that he knew he would be politically clobbered if he vetoed the measure, according to Richard Socarides, his top adviser on gay rights issues. Clinton had already taken a beating for trying to end a policy that allowed the military to discharge a service member for being gay; he wound up forced to settle on a compromise policy called “Don’t Ask, Don’t Tell” that allowed gays and lesbians to serve only if they kept their sexual orientation hidden.
“He was never against gay marriage,” Socarides recalled. “But you have to remember the context. There were only fourteen votes in the entire Senate against this. It was the last thing he wanted to do. He kept asking, ‘Was there any way around it?’”
Every Democratic presidential candidate since had adopted the same position as Clinton, including his wife, Hillary Rodham Clinton, and Obama: Marriage should be between a man and a woman.
“If someone as conservative as Ted Olson were to get involved in this issue,” Chad said to Rob, “it would go a long way in terms of recasting same-sex marriage as a civil rights fight, rather than a partisan one.”
“It could be a game-changer,” Rob agreed.
TWO
A CONSERVATIVE ICON JOINS THE CAUSE
A week later, shortly before noon on November 21, 2008, Chad was ushered through the white marble lobby of Gibson Dunn’s Washington, D.C., office, where Olson was a senior partner in charge of the firm’s Supreme Court practice.
Chad had talked with Olson by phone beforehand to ensure his interest. Still, on the trip out, Chad hadn’t been able to shake a sense of the surreal. “I’m going to Washington to meet this guy?” he kept thinking.
Olson’s office décor did little to dispel his preconceptions. A framed photograph of President Reagan was inscribed with “heartfelt thanks.” Another, from the second President Bush, was signed with “respect and admiration.” Displayed on the bookshelf was a medal bestowed upon Olson by former defense secretary Donald Rumsfeld, while on the coffee table sat a compilation of the dissents of Justice Antonin Scalia, an anchor of the Court’s conservative wing whom Olson counted as a good friend.
Olson was a tall man with a mop of strawberry blond hair, a bit of a paunch well disguised by beautifully tailored pinstriped suits, and sloping blue eyes that radiated genuine warmth. He could be deeply combative, but what struck Chad on first impression was an earnest boyishness that immediately put him at ease.
Setting aside any lingering misgivings, Chad began.
“Too often in the debate over same-sex marriage, the real-life consequences of the government treating gays and lesbians differently are lost.”
From Chad’s perspective, the problem with bans on gay marriage were that they sent the message that the government believed there was something wrong, and unworthy, about gay and lesbian relationships. And that kind of state-sponsored discrimination, he told Olson, not only provided cover for routine schoolyard bullying, it also, in his view, fueled the type of extreme hatred that had led to the 2008 headline-grabbing murder of Lawrence King, an eighth grader who was killed for wearing women’s clothing and identifying as gay.
One-third of gay, lesbian, bisexual, and transgender teens acknowledge contemplating suicide, a rate nearly four times that of their straight peers, Chad told Olson. A quarter of gay, lesbian, bisexual, and transgender teens are kicked out of their homes when they come out.
That, he argued forcefully, was the story they had to tell. “This is not about me, Chad Griffin, getting married,” he told the lawyer.
“God, it’s hard enough being a teenager,” Olson said, as he digested the numbers for the first time and thought through how the powerful narrative Chad had just laid out could be channeled for legal purpose.
Unbeknownst to Chad, Olson had already been asked to become involved in California’s gay marriage fight; the backers of Proposition 8 had wanted him to defend the ban. He had declined, telling them that their position was at odds with both his personal and legal views.
Olson was no RINO—a pejorative term conservatives used to denote moderates they see as “Republican in Name Only.” But he had become active in the Republican Party before the advent of the religious right, with its focus on inserting the government into morality debates.
As a college and law school student in California, he gravitated toward a particularly western brand of small government, maximum individual liberty, becoming one of a lonely few students at the University of California’s Berkeley Law and Boalt Hall to support Arizona senator Barry Goldwater’s 1964 bid for president.
At that time, segregation was still in full throttle in the South, and during a trip to Texas with his college debate team, Olson got his first close-up view of blatant discrimination, when a black teammate was refused service at a restaurant. Olson tore into the owner, as the team insisted it would not eat unless everyone was served. During a similar incident at another restaurant, Olson went into the kitchen, pushed the cooks aside, and made his teammate breakfast.
When that owner threatened to call the police, “Ted said, ‘Go ahead and do it,’” Paul Winters, the debate team’s coach, recalled. “That’s just the way he is. If he sees something that is wrong in his mind, he goes after it.” Gays and lesbians, Olson told Chad, had long been the victims of similarly “hideous discrimination.”
During the Reagan administration, Olson had joined the Justice Department as head of the Office of Legal Counsel, a post from which he rendered legal opinions about what federal agencies could and could not do. When a federal prosecutor was fired for being gay, Olson wrote a blunt legal opinion concluding that it was “improper to deny employment or to terminate anyone on the basis of sexual conduct.”
When Olson left the Justice Department to return to private practice in 1984, it was views like those that led some to say that “what was seen as a certain libertarian squishiness at the Office of Legal Counsel under Ted” had been eliminated, recalled Steven Calabresi, a law professor at Northwestern University who cofounded the Federalist Society.
After winning Bush v. Gore, Olson was named President George W. Bush’s solicitor general. The Office of the Solicitor General argues on behalf of the government before the Supreme Court, deciding when the federal government should weigh in on a case and what position it should take. When Olson was asked for his views on a proposal to amend the U.S. Constitution to define marriage as a union between a man and a woman, he was characteristically blunt, despite the fact that it had the president’s support. Not only was it bad policy, he told the White House, but “what were we thinking putting something like that in the Constitution?”
State legislatures around the country were debating alternatives to same-sex marriage such as civil unions and domestic partnership arrangements, but Olson felt those were crass political half measures that continued to treat gays and lesbians
as separate and unequal.
One night early in Bush’s first term over dinner at the Caucus Room, a Capitol Hill hangout, Olson launched into an argument that marriage was an essential component of human happiness that same-sex couples should be able to enjoy, recalled his friend, conservative author and former Bush speechwriter David Frum. Most everyone else at the dinner table was opposed, but Olson wouldn’t be moved. Frum was struck by how passionately Olson seemed to feel.
“You have to make peace with this because it is sure to happen,” Olson told the other dinner attendees, “and you will see it in your lifetime.”
So when Chad had asked for an appointment to discuss making that prediction a reality, Olson readily agreed. To him, it was an axiom that good lawyers didn’t take on only popular cases. And if his reading of the law led him in a different direction than most of his conservative peers, he had never given much of a damn what others might think.
A case in point: his behind-the-scenes willingness to stand up to then vice president Dick Cheney when it came to the Bush administration’s controversial interpretation of its wartime powers in the wake of 9/11. Olson was the only senior administration official to lose a family member in the 9/11 attacks; his third wife, Barbara, a conservative commentator, died aboard one of the hijacked planes. Yet even as he publicly defended the administration’s prerogatives, those involved in the debate said he privately and correctly warned that failure to give terror suspects basic legal rights like access to a lawyer would lead to Supreme Court setbacks.
Besides, in Olson’s view, fighting to overturn gay marriage bans was entirely consistent with his devotion to more traditionally conservative causes, such as his efforts to overturn affirmative action programs aimed at redressing past discrimination. Both were informed by an antipathy toward government-sponsored discrimination, whatever the goal, and a belief that the Constitution’s promise of equal protection under the law means just that.
“Why shouldn’t I take this case?” he thought as he listened to Chad. “Because someone at the Federalist Society thinks I’d be making bad law? I wouldn’t be making bad law.”
Then, leaning forward in his chair, he laid out his theory of the case for Chad.
Courts are historically reluctant to arrive at novel interpretations of the Constitution, so one key to the same-sex marriage battle would be to stress that they weren’t asking for a new right.
The Supreme Court had on fourteen separate occasions recognized marriage as a fundamental right. It had struck down laws banning prisoners and deadbeat dads from marrying. And, most notably, in a 1967 case called Loving v. Virginia it had found bans on interracial marriages unconstitutional. “The freedom to marry,” Chief Justice Earl Warren had written on behalf of a unanimous Court, “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
The question was whether the state could deny that fundamental right to same-sex couples by defining marriage as a union between a man and a woman. A big part of the answer, Olson believed, lay in two more recent Supreme Court decisions.
The first was a 1996 case called Romer v. Evans, in which six of the nine justices struck down a voter-enacted amendment to the Colorado constitution that, like Proposition 8, stripped gays and lesbians of legal protections they had previously enjoyed under the law—in Colorado’s case, civil rights protections enacted by certain municipalities that prohibited discrimination based on sexual orientation.
The Court found that the Colorado initiative violated the Constitution’s equal protection clause, which declares that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The initiative, the Court’s majority held, disadvantaged gays and lesbians for no good purpose beyond a “bare . . . desire to harm a politically unpopular group.”
The second case was Lawrence v. Texas, a 6–3 decision that struck down laws criminalizing sodomy in 2003. The majority found that Texas had no legitimate reason to intrude into private sexual behavior protected by the Constitution’s due process clause, which states that the government may not “deprive any person of life, liberty or property, without due process of law.”
“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct,” the majority found.
The state may, under certain circumstances, single out and disadvantage a class of citizens if doing so advances a legitimate state interest, but the majority in Lawrence found that mere moral condemnation wasn’t enough to meet that test.
The landmark decision spoke to the stigmatizing effect of Texas’s antisodomy law, and declared that gays should be free to enter into relationships in their homes and “still retain their dignity as free persons.”
“The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
Olson noted that no less a conservative than Justice Scalia had argued in a blistering dissent that the majority in Lawrence had opened the door to same-sex marriage.
Generally, the Court defers to the political process by presuming that duly enacted laws are constitutional. But laws may not arbitrarily treat similarly situated citizens differently. At the very least, Proposition 8 had to pass what is known as a “rational basis” test, meaning that the decision to strip gays and lesbians of the ability to marry must be rationally related to some legitimate state purpose. Finding one, Olson believed, was going to be difficult.
Justifying the ballot initiative would be harder still if he could persuade the Supreme Court to set the bar higher. Laws that infringe upon fundamental rights or that target certain vulnerable minority groups that have been historic targets of discrimination receive additional scrutiny from the Court. If Olson could convince the justices that the fundamental right to marry was the right to marry the person one loves, rather than a person of the opposite sex, or show that gays and lesbians constitute what is known as a “suspect” or “quasi-suspect” class, the Supreme Court would apply a much less deferential balancing test in weighing the constitutionality of Proposition 8.
In determining whether a group is a class in need of extra judicial protection, the Court considers whether the group has been subject to a history of discrimination; whether it lacks the political power to protect itself in the majoritarian political process; and whether its members exhibit an obvious or immutable trait that makes them readily distinguishable as a class but does not prevent them from contributing to society.
Racial minorities, for instance, are considered a suspect class. Therefore laws that discriminate against them—as well as those that infringe upon a fundamental right—must meet a strict scrutiny test, meaning that they must serve a “compelling” governmental interest, be narrowly tailored, and represent the least restrictive means of achieving the government’s objective. Women constitute a quasi-suspect class, and laws that discriminate against them are subject to intermediate scrutiny, meaning they must serve an “important governmental objective” and be “substantially” related to achieving that objective.
Sexual orientation, Olson believed, was no more a choice than skin color or sex. “The Court should treat it similarly,” he told Chad.
Chad listened, mesmerized. Olson was talking about some of the murkiest areas of the Supreme Court’s jurisprudence, and divining the true meaning and extent of the justices’ opinions was akin to what an archaeologist faces when trying to decipher recently unearthed ancient cave drawings. The marking were there, but what did they really mean?
But the lawyer was incredibly charismatic, able to take a highly divisive issue and, in his forceful but always pleasant voice, boil it down into a plainspoken legal argument that seemed so reasonable that it was hard to believe there was any other side.
Olson could be, Chad thought, one of the most eloquent spokespeople the gay rights movemen
t had ever seen. Stepping outside onto Connecticut Avenue after the meeting, he phoned Kristina.
“You will not believe this, but he will take the case,” Chad told her.
“I was just shocked,” she recalled. “We thought, ‘Game on.’”
Walking up the circular brick driveway of the Reiners’ home in Brentwood the following month, Olson wondered what type of reception awaited him. He knew he was seen as something of the devil incarnate in liberal circles like the Reiners’. But the movie director could not have been more welcoming when he greeted him at the door. Rob trusted Chad’s instincts—he simply wanted to hear for himself what journey had brought Olson to his home, and this cause.
Walking Olson through his home, he explained its storied history. The actor Henry Fonda, an ardent Democrat, had planted its rose bushes when he owned it. The liberal producer Norman Lear, who gave Rob his first big break when he cast him as Archie Bunker’s son-in-law “Meathead” in the 1970s television show All in the Family, had lived in it next. All told, the director told Olson, more money had been raised for Democratic candidates here than perhaps any other home in Hollywood.
“I certainly never thought you would be in my living room,” the director joked as they entered the comfortable, tastefully decorated space.
Chad and Kristina were already there. Bruce Cohen, an Academy Award–winning producer of box office hits like American Beauty, soon joined the group. Chad and Cohen had gotten to know one another when the two put together a high-dollar fund-raiser to fight Proposition 8, and Cohen had been with Chad and Kristina on election night at the Westin St. Francis. Cohen was a gay Yale graduate whose political activism dated back to childhood door knocking on behalf of Democratic candidates in Virginia.
