Olson's Gay Marriage Gambit: Powerful but Risky

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Damian Dovarganes / AP

Attorneys Ted Olson, left, and David Boies, who are mounting a federal-court challenge to California's Prop 8

When super-lawyers Ted Olson and David Boies went to court last week to ask a federal judge to toss out California's Proposition 8, one might have expected longtime gay-marriage advocates to welcome the move with open arms. After all, not only is Olson, 69, one of the preeminent members of the Supreme Court bar and Boies an acclaimed trial lawyer who famously squared off with Olson in 2000 when they took opposing sides in the Supreme Court's landmark Bush v. Gore election case. But perhaps even more important symbolically, Olson is a former top lawyer in the George W. Bush and Reagan administrations, the epitome of a mainstream Republican insider, and he is now aligning himself squarely with the gay-rights activists that so many voices in his party have demonized over the years.

But as much as they appreciate having two such prominent lawyers on their side, gay-rights veterans worry that Olson and Boies' approach could backfire. Now is no time to test the federal judiciary — where conservatives hold sway — on the issue of gay marriage, they argue. (See pictures of the gay-rights movement, from Stonewall to Prop 8.)

Many of the movement's leaders say the smarter route to equality is a state-by-state battle to convince not just judges but lawmakers and voters alike. "History says the odds at the Supreme Court now are not so good," said a statement issued by the American Civil Liberties Union and eight other national legal and gay-rights organizations deeply involved in legal wars over marriage. "The U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states."

In an interview with TIME, Olson said he and Boies had met with gay-rights groups to discuss their concerns before filing the suit over the controversial law banning gay marriage but ultimately decided to move forward anyway. "We have given this a great deal of thought," said Olson, who noted that sitting on the sidelines hardly guarantees that some other plaintiff won't seek his or her own day in court. "Both David and I have seen cases at the Supreme Court brought by people who didn't know what they were doing. We feel we do know what we are doing." (Watch a gay-marriage wedding video.)

By filing this case, Olson and Boies have moved the gay-marriage debate to the front and — critically — center of American political discourse. For all the successes gay-rights lawyers from the ACLU and other groups have had over the years, they never quite escaped the perception of many Americans that the cause was somehow a fringe concern of primary interest to advocates and opponents. As recently as last year, gay marriage was considered so extreme that no major candidate from either party in the presidential election had any qualms about opposing it.

Olson's flat refusal to see civil unions as an acceptable compromise could do more to raise the pressure on President Barack Obama and the Democrats to move toward embracing gay marriage than anything the ACLU could achieve. And with such Republican credentials, his involvement quietly indicts the notion that gay rights must be a partisan issue. (Read "Why Gay Marriage Was Defeated in California.")

Worrying about the political implications for his party as it tries to redefine itself "wouldn't be fair to my clients," Olson said. "But we do hope to make the point that on matters of human decency, human rights, individual rights, fairness, due process and equal rights — for God's sake, these are not liberal or conservative issues ... This issue is not something that should be tearing us apart. It should be bringing us together. A respect for individual liberties is an essential part of being conservative."

But what if Olson and Boies lose? History could remember the pair for two historic moments in constitutional law: the ruling that made George W. Bush President in 2000, and helping to establish precedent that could set back efforts to win gay marriage for a generation. Both men acknowledge the risks, but believe the time is right.

"We are not minimizing the obstacles," Olson told TIME. But he said federal courts already have powerful, and friendly, precedents. The right to marry whom one pleases was called a fundamental right, protected by the due process clause of the Constitution, in 1967, in the Supreme Court's landmark ruling in Virginia v. Loving that struck down state laws banning interracial marriage. Olson and Boies argue that two other big federal cases have laid the groundwork for the Supreme Court, despite its conservative makeup: Romer v. Evans, which in 1996 struck down a statewide ballot measure in Colorado that had barred cities from passing anti-discrimination ordinances for gays and lesbians, and Lawrence v. Texas, the landmark gay-rights case from 2003 that overturned all state laws making gay sex a crime.

Still, those arguments are hardly novel. Gay-rights lawyers and others have made that case for years, but have always avoided bringing it to federal court for fear of an unfriendly reception. But Olson told TIME that their approach will also seek to leverage powerful reasoning in the small but growing number of state supreme court decisions that favor gay marriage, from California's sweeping decision last year that spurred on the Prop 8 movement to Iowa's 2009 decision, with its lengthy rebuttal of religious-based arguments against gay marriage.

There are other risks, however. In the wake of the recent California Supreme Court ruling upholding Prop 8, gay-rights activists and others have vowed to put the issue of gay marriage back in front of voters, perhaps by as early as 2010. If they win, gay marriages will resume — a big victory for the movement, but one that would likely halt Olson and Boies' case in its tracks. Since all four plaintiffs in the federal suit are Californians, a victory at the polls would mean they have no claim to pursue.

"It would probably moot our case," Olson told TIME. "It would be great if [the new ballot initiative] would be successful, but ... a loss would be very unfortunate — two successive popular vote losses in the nation's largest and one of the most liberal states. I'm not quite sure I follow the risk-benefit analysis." That's exactly what gay-rights activists worried about this suit have been thinking too.

Watch a video on gay marriage in the heartland.

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