LdC: Karen Ocamb interviews Ted Olson: All of us have the right to due process and equal protection

Originally published at Frontiers.

Republished here without permission.

Many in the LGBT community were stunned at the news that Ted Olson, a famous conservative and the former solicitor general under President George W. Bush, was joining forces with equally famous liberal attorney David Boies to bring a marriage-equality case in federal court.

Olson was asked to represent two same-sex couples by openly gay political consultant Chad Griffin, who formed a new group—American Foundation for Equal Rights—to support the endeavor.

The case, filed May 26 in the U.S. District Court in San Francisco, asks the federal courts to strike down Proposition 8 as a violation of the federal equal protection and due process clauses of the 14th Amendment of the U.S. Constitution; and it asks for an injunction against enforcement of Prop. 8.

“We’re going to court because people shouldn’t have to surrender their fundamental rights to a popular plebiscite,” Olson told reporters at a May 27 news conference. “People should not have to beg to be treated equally or wait for decades for popular approval to be treated equally.”

“Mr. Olson and I are from different ends of the political spectrum,” said Boies, Olson’s rival in Bush v. Gore in 2000. “But we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution. Every American has a right to full equality under the law. Same-sex couples are entitled to the same marriage rights as straight couples. Any alternative is separate and unequal and relegates gays and lesbians to a second-class status.”

Asked about what LGBT legal groups consider the “ill-timing” of the case, with its serious consequences if they lose, Olson said they have thoroughly studied the case, they’re constitutional experts who know what they’re doing, and they don’t intend to fail the same-sex couples.

“We are not going to say to them, ‘Why don’t you wait for another 10 years or 15 years?’ We can’t say that to them. We think they’re right, we think their constitutional rights are being denied, and we’re going to help them achieve that equality.”

Noting his association with the conservative Federalist Society, Frontiers in L.A. asked Olson about his motives in taking the case.

“I don't think I’ve ever been part of any organization that was anti-gay or felt that a group was not entitled to equal rights,” Olson said. He is with the Los Angeles-based law firm of Gibson, Dunn & Crutcher LLP, which has a strong LGBT group. “I hope people don’t suspect my motives; I feel very strongly that this is the right position—the right position for America. I hope people will believe me.”

Boies said Olson was “warm” and “committed in his heart and soul to equality.”

In a follow-up interview with Frontiers, Olson said he never supported or endorsed the federal marriage amendment or Colorado Amendment 2, as some have suggested. Olson also said he would not discuss how the case is being funded, only that both law firms are contributing. He said they think they have the five necessary Supreme Court votes based on the outcome of 2003’s Lawrence v. Texas, which struck down anti-sodomy laws.

When Frontiers noted that one blogger said that “Ted Freaking Olson is now better on marriage equality than Barack Obama,” Olson laughed.

“Well, I think that’s good,” Olson said. “To be serious for a moment, one of the reasons why David Boies—for whom I have the most enormous respect—and I are working together on this is to send that kind of a signal: That it isn’t a political thing. It is not a Republican or Democratic or liberal or conservative thing; it’s an American thing. And it’s equality, and I think … what we were both hoping to do is that we would make it easier for other people, including politicians, to get out of the corner and come out and say, ‘This is the right thing to do. And if David Boies and Ted Olson can come together to do it, then we can too. What’s our excuse for not taking a position?’ And I hope we can have that kind of an effect.”

Asked if he thinks sexual orientation is innate or a choice, Olson said he had not really thought about it, but his clients and co-workers say it is a matter of genetics. “What I think fundamentally is that an individual’s sexual orientation should not be the standard by which rights are given or withheld. And however that sexual orientation comes about is irrelevant from that standpoint. We shouldn’t go examining that sort of thing and making that the standard—the gate by which people pass through in order to have the freedom of speech or the freedom of religion or the freedom to marry.”

Olson looks at gays as individuals, not as a minority. “I have a difficult time bunching people up in groups and passing out rights or privileges according to groups. The Constitution speaks of the rights of individuals—all of us have these individual rights to due process and equal protection. And whether a person is alone or a part of a community, that individual is entitled to our constitutional protections.”

Asked why he took the case, Olson said, “I’ve always been of the view that we don’t discriminate against people on the basis of their sexual orientation. We all have friends and family—I don’t have a family member who’s gay—but we all have friends and co-workers and neighbors and so forth [who are gay], and they are citizens and they are our friends and they should be treated equally. And we have an obligation to stand up for them.”