WASHINGTON (RNS) Former solicitor general Theodore Olson, the Republican lawyer who argued Bush v. Gore and the challenge to California’s Proposition 8, says the Supreme Court through action and inaction this month passed “the point of no return” on same-sex marriage.
“I do not believe that the United States Supreme Court could rule that all of those laws prohibiting marriage are suddenly constitutional after all these individuals have gotten married and their rights have changed,” he said in an interview. “To have that snatched away, it seems to me, would be inhuman; it would be cruel; and it would be inconsistent with what the Supreme Court has said about these issues in the cases that it has rendered.”
This month, the high court let stand without explanation appeals court rulings permitting gay marriage in five states. In an interview with The New Yorker published last week, President Obama said he believes it is a constitutional right but endorsed the court’s incremental approach.
Olson disagrees with that, saying the Supreme Court should take a case and affirmatively endorse marriage as a constitutional right. “I think the thing he overlooks …(is) that there are people in 18 states of the United States that don’t have this fundamental right that he has just announced that he believes in.”
Waiting for the process in lower courts to open the door to gay marriage in all 50 states “would not be good enough because it’s not now,” Olson said. “When will that happen? And how much misery and how much suffering do individuals in this country have to experience before that happens?”
Given his Republican credentials, Olson has been an unlikely champion in the gay-marriage movement. He served in the Justice Department as assistant attorney general in the Reagan administration and solicitor general in the George W. Bush administration. He was the lead attorney facing Democratic counterpart David Boies in the landmark Bush v. Gore case that finally settled the 2000 election and argued the Citizens United v. Federal Election Commission that changed campaign finance law.
In 2009, he and Boies joined forces to challenge California’s ban on same-sex marriage. Just five years later, the number of states permitting couples of the same gender to marry has exploded from three to 32. Two-thirds of Americans now live in states that allow gay marriage.
“We never thought it would move this fast,” Olson said, attributing the change in legal status and public opinion both to “the work of a lot of lawyers” and the actions by individuals in Hollywood and across the country who have “revealed their sexual identity and told their story.”
Last week, a U.S. District Court judge in Puerto Rico dismissed a challenge to a law there that limits marriage to one man and one woman, but Olson predicts that decision will be overturned by the Appeals Court. He notes that a closely watched case before a three-judge panel in the 6th Circuit of Ohio could go either way, with Judge Jeffrey Sutton as the apparent swing vote.
“He’s a conservative and it’s possible that he might rule in favor of sustaining the prohibition,” Olson said. But if that happens, “all of the judges on the Circuit, I think, would come out the other way.”
At age 74, Olson has argued 61 cases before the Supreme Court, on issues ranging from the First Amendment to the separation of powers. He said he doesn’t think about his legacy: “I hope that I will have a few more years left.” But he adds that his work on gay marriage “is the legal accomplishment that I think will always mean the most to me.”
(Susan Page writes for USA Today.)
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