Why Does Bush's Top Florida 2000 Election Lawyer Want to Lead Gay Marriage Fight to Supreme Court?

By Stephanie Mencimer, MotherJones.com. Posted May 30, 2009.

Former solicitor general and ultraconservative lawyer Ted Olson is a rock star of the US Supreme Court bar. He's argued more than 50 cases before the high court during his career and won more than three-fourths of them. So on Wednesday, when he signed on to a lawsuit challenging the constitutionality of California's Proposition 8, which bans gay marriage, he looked like the great white hope for a cause that's had only mixed success in the nation's courts. If anyone could prevail in this case, Olson could. So gay rights groups must be thrilled that he's thrown his significant legal weight and conservative bona fides behind their cause, right? But they're not -- not at all.

The country's major legal groups defending gay rights, including the ACLU and the Lambda Legal Defense and Education Fund, don't think Olson is doing them much of a favor. They are upset about the lawsuit, in large part because they think it will fail. A loss could be a major setback not just to the gay marriage movement but to other established gay rights governing adoption and foster care, employment discrimination, and other matters. Pushing the case to the Supreme Court, they contend, could do serious harm.

When the lawsuit was announced Wednesday, some at the press conference raised these concerns and asked whether the lawsuit might be premature, a question that prompted one of the more mind-boggling scenes in civil rights history. In response, Olson -- Ted Olson! -- argued that justice delayed is justice denied. This put him to the left of the ACLU on one of the nation's most contentious social issues of the day. He acknowledged that some may disagree about the timing of the suit. But he explained that when gay people came to him and said that their constitutional rights were being violated, that they wanted to be married and have the same rights as other Californians, he could not, as a lawyer, say, "Why don't you just wait another 10 years, 15 years?" He added: "We think they're right. We think their constitutional rights are being denied, and we're going to help them achieve that equality." Basing his arguments on those that prevailed in the famous Supreme Court decision Loving v. Virginia, which overturned a ban on interracial marriage, he contended passionately that the time for this case had come, despite what ACLU attorneys might think.

A spokesman for the American Foundation for Equal Rights, which is funding the lawsuit, wouldn't say who recruited Olson for the effort. But it's clear that whoever is backing the effort put up a boatload of money. The spokesman said that Olson and his co-counsel, David Boies, who represented Al Gore in the 2000 election litigation, are handling the case through a mix of paid and pro bono work donated by their firms. Rumor in Washington legal circles is that Olson commands upwards of $1,000 an hour for his Supreme Court work, meaning that even if some of his work is pro bono, his time on this case will cost a small fortune. While Olson and company have so far refused to disclose who's paying for their work, the PR firm running the media operation, Griffin | Schake, has close ties to Hollywood liberals like Rob Reiner and Jerry Zucker. Nor will the foundation make public all of its board members. Chad Griffin, one of the partners in the PR firm and so far the only disclosed board member of the foundation spearheading the lawsuit, worked in the Clinton White House. It sure looks like the work of the liberal elite.

But conspiracy theorists on the Web -- where else? -- are already postulating that Olson has signed on so that he can take the case to the Supreme Court and lose, thus wrecking already well-established gay rights everywhere. But at the press conference, Olson disputed the notion that he was a saboteur. "I hope that people don't suspect my motives. I feel very strongly that this is the right position," he said.

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