For once, Ted Olson of the political right side is on the moral right side. The so-called "Christian" Tea Party Republican types have too long stood in the way of equal rights for gays. If those self-proclaimed Christ followers actually followed Christian principles, gays would have been afforded equal rights in all ways long ago.
By Maureen DowdIt has been quite a journey for Ted Olson. He’s gone from being the conservative lawyer who helped crown W. by winning the Bush v. Gore case before the Supreme Court, to being a lesbian.
“Maureen,” he told me in his gravelly voice, “one of the biggest lesbian groups in this country told me I’m already an honorary lesbian.”
Did it make you feel different, I wondered.
“I still like women very much,” he wryly replied, as his biking pal, liberal adversary and now co-counsel David Boies laughed, snacking on a crust of sourdough bread in their temporary office on Mission Street.
In 2000, Olson and Boies sparred with each other in Washington over which candidate would marry the country. Now they have joined forces here to spar with Prop 8 defenders over who can marry.
“Ted Olson and David Boies, so what are they up to?” Olson laughed, summarizing the confusion and conspiracy theories that their union inspired.
As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state’s ban on same-sex marriage, Olson reviewed the case: “We’re going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don’t want to recognize gays and lesbians as normal, as human beings.”
Boies, wearing a flag pin on his lapel, said that the state of California is engaged in “gay bashing.” He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: “These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren’t really procreating, have a right to get married.”
Noting the rabid effort being made to restrict marriage to only those who can protect its sanctity, a chuckling Olson reeled off some names: “Tiger Woods, Eliot Spitzer, Mark Sanford, Kobe Bryant, Bill Clinton.”
I asked Olson if he misted up, as many in the courtroom did, when Jeff Zarrillo, a 36-year-old manager at AMC Entertainment, testified that he loved his partner “probably more than I love myself.”
“Yes,” Olson replied, noting that he finds himself getting weepy a lot, including when a bright lawyer in his Washington law firm approached him in the library to tell him she was a lesbian mother of two and she was grateful to him.
“I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,” he said. “We’re not treating them like Americans. We’re not treating them like citizens.”
Boies said the problem was generational, and they have to try the case before judges their own age who might find it hard to move beyond old prejudices. (Although this judge, a libertarian-tilting George H. W. Bush appointee, Vaughn Walker, who likes to hire magicians for the court’s annual dinner, has been so accommodating to their side that Ed Meese complained he was tilting the case.)
“I’ve got a grandson who’s a senior in college, and he can’t imagine fighting over this issue,” Boies said. “It’s like explaining to my daughter that there was a time when women didn’t have the right to vote and couldn’t own property.”
The anti-gay-marriage proponents whipped up a moral frenzy in 2008, suggesting conjugal parity would harm children, summon the devil, tear down churches and melt civilization. But Olson argued in his opening statement that the discrimination gays experience “weakens our moral fiber in this country.”
While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.
I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.
“Damned right,” Boies snapped. “I hope my Democratic president will catch up to my conservative Republican co-counsel.”
Olson added: “I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’”
Obama sees himself as such a huge change that he can be cautious about other societal changes. But what he doesn’t realize is that legalizing gay marriage is like electing a black president. Before you do it, it seems inconceivable. Once it’s done, you can’t remember what all the fuss was about.
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