Ted Olson, the lawyer arguing in favor of marriage equality before the Supreme Court of the United States – the sixtieth time he’s appeared before America’s highest court – has the background you’d least expect:
Certain law partners no longer call Theodore B. Olson for lunch. Old friends no longer come to dinner at his sprawling house in the woods near the Potomac. One of his best friends died in December, somewhat estranged.
All since Olson — the conservative legal hero, crusader against Bill and Hillary Rodham Clinton, defender of George W. Bush — signed on to fight for same-sex marriage in California, a battle that he will take to the U.S. Supreme Court on Tuesday when he challenges Proposition 8, the state measure that banned gay marriage.
Olson will argue that gays and lesbians should have an equal right to marry, a view that, if shared by the justices in a ruling after Tuesday’s hearing, would strike down the California ban.
“They feel a little rebuffed, that their leader has turned on them,” said Olson’s wife, Lady Booth Olson.
Olson, 72, brushes aside the shunning. The marriage case, the 60th case that he will have argued before the nation’s highest court, has been a transformative experience, he says. He speaks with passion, and sometimes a tear, about the gay men and women, including Republicans, who reach out to thank him.
…it was the election to replace President Clinton in 2000 that made Ted Olson a conservative hero. He persuaded the Supreme Court in Bush vs. Gore to block a planned re-count of presidential votes in Florida. The legal coup handed the White House to the Republican. Bush rewarded Olson by naming him solicitor general, the government’s chief representative at the high court. The nomination sparked a three-month confirmation battle. Worse lay ahead.
On Sept. 11, 2001, shortly after 9 a.m., Olson was in his Justice Department office preparing for the Supreme Court term that would begin in a few weeks. Barbara called, sounding anguished. She was on an American Airlines flight to Los Angeles. It was his 61st birthday, and she had delayed her trip to be with him the night before.
The plane had been hijacked, Barbara said, and she asked what she should do. The call was cut off. She called back, staying on the line long enough for them to exchange quick words of love. Ten minutes later, the plane crashed into the Pentagon.
Was Olson changed by his wife’s tragic murder and subsequent remarriage? Maybe, but David Frum – another Republican heretic on this issue (and many others) – insists that he supported the idea well over a decade ago:
I vividly remember a dinner with Ted and Barbara Olson in February 2001. In those days, my in-laws spent most of the month of February in Florida, and they always stopped to see their grandchildren and (afterthought) my wife and me on their drives south and north from Toronto. The Olsons kindly invited the four of us to dinner during the stopover, which is how I can be so sure of the month; I can be sure of the year because the dinner was the last time my in-laws saw Barbara. She was murdered in the hijacking of American Airlines Flight 77 on September 11, 2001.
I don’t remember how or why the issue of same-sex marriage arose during the dinner, but it did. The balance of opinion at the time was 4-1 against Ted, with Barbara mostly preserving a discreet (and unusual!) silence on the subject. Ted argued very passionately that gays were entitled to every right of straight Americans, and drove home his point by itemizing instances of antisemitic discrimination that he, a Gentile, had battled at the beginning of his legal career. This is no different, he insisted. Near the end of the discussion, he predicted that the country – and everybody at the table – would come round to his view sooner or later, probably sooner.