The unlikely champion of same-sex marriage

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.

They certainly did.

Book review: “From the Closet to the Altar”

[Originally posted at Canadian Lawyer]

In 1957, a prominent American group denounced homosexuality as “socially heretical or deviant,” and determined that laws against it posed no constitutional problems. That organization: the American Civil Liberties Union. For years thereafter, “sodomy” was a criminal offence in every state.

In 2012, the president of the United States spoke out in favor of same-sex marriage, and his party endorsed it in its official platform. Gay marriage is legal in six states and Washington, D.C., and many other American states have allowed “civil unions” — marriage in all but name — for same-sex couples. One of the year’s biggest controversies came when the president of a fast-food restaurant chain reaffirmed his company’s support for anti-gay-marriage groups, leading to boycotts (and counter-boycotts) across the country.

Gays and lesbians in the United States have come a long way in a short time (yet are still well behind Canada and many other nations). But with progress, there has been a massive backlash from conservative, religious Americans, who consider homosexuality sinful and officially recognized same-sex unions as a threat to the institution of marriage itself.

While the Democratic Party has become more accommodating of same-sex marriage, most of the Republican Party (with a few surprising exceptions like Dick Cheney) is adamantly opposed. While some states have legalized same-sex marriage, even more have adopted constitutional amendments defining marriage as between a man and a woman. While gay-rights activists have had some success in state courts and legislatures, voters have shot down the idea of same-sex marriage every time it has been put to a popular referendum — even in progressive California.

In this engrossing book, Harvard law professor Michael J. Klarman tells the history of the legal and political campaigns for same-sex marriage. But he also examines the tactics used by some gay-rights activists and organizations in pressing for equal marriage, and whether the resulting backlash has slowed progress toward gay and lesbian equality in other key areas.

The idea that gay and lesbian couples should be allowed to legally marry, with all of the state-sponsored benefits flowing therefrom, seemed like fantasy just 20 years ago. Gay Americans only began leaving the closet and demanding equality in the ’60s and ’70s, and during the ’80s and early ’90s they focused their attention on pressing issues like non-discrimination laws and the fight against AIDS.

That’s why a 1993 Hawaii Supreme Court decision, Baehr v. Lewin, caused an uproar. Baehrheld that the limitation of marriage to a man and a woman was discriminatory, and as a result Hawaii became the first jurisdiction in the world where same-sex marriages were officially recognized. The backlash was almost instantaneous, as even liberal Hawaiians were not ready to take this massive step forward. After years of legal and political wrangling, the state constitution was amended to limit marriage to opposite-sex couples. Other states made similar moves, and prominent gay-rights organizations (who had not supported the Baehr litigation, correctly determining it would be too much too soon) feared they were worse off than when they started.

The floodgates had opened, however. State courts in Vermont and Massachusetts also ruled that bans on same-sex marriage were unconstitutional, though the Green Mountain State ultimately settled on civil unions. Then came other New England states. Then came California. All the while, as ordinary Americans got to know more of their gay and lesbian neighbours, friends, and relatives, support for same-sex marriage continued to grow. Support for civil unions, once a radical idea in its own right, became a fallback position for conservatives (even Rush Limbaugh!) who continued to oppose gay marriage. Earlier this year, President Barack Obama finally determined that it was the right time to come out publicly in support of marriage equality — a development Klarman deemed unlikely before the next election.

Still, it continued to be two steps forward, one step back for the marriage equality movement. Voters in Maine and California chose to amend their state constitutions to ban gay marriage in response to controversial court rulings. Three Iowan supreme court judges who ruled a same-sex marriage ban unconstitutional were recalled. There is no doubt which way things are going, especially considering that younger Americans overwhelmingly support giving gays and lesbians the right to marry, but the fight isn’t close to over yet.

There is no doubt that Klarman supports same-sex marriage, but to his credit, Klarman resists the temptation to demonize its opponents. From the Closet to the Altar makes its points clearly and dispassionately, and is all the more persuasive as a result. Republicans who broke with their party to support same-sex marriage, such as the New York state legislators who voted with the Democrats to legalize it, are given their due, and divisions within the gay-rights movement are discussed in great detail.

Indeed, the point of From the Closet to the Altar is to determine whether gay and lesbian Americans are better off today, after years of emphasizing same-sex marriage, than they would have been if more incremental change had been sought. He determined that, on balance, they are — but that some serious setbacks have come about:

“On balance, litigation has probably advanced the cause of gay marriage more than it has retarded it. But such litigation has also probably impeded the realization of other objectives of the gay rights movement, and it has had significant collateral effects on politics. Because of the litigation, U.S. Senate candidates have lost their bids, state judges have lost their jobs, and the outcome of a presidential election may have been affected, which in turn has influenced the composition of the U.S. Supreme Court.”

Heading into the 2012 elections, voters in Maryland and Washington will decide whether same-sex marriage will become legal in their respective states. The people of Maine may soon revisit their decision to ban it, too. This issue isn’t going away, and From the Closet to the Altar is essential reading for anyone who wants to catch up on the subject heading into polling season.

This November, Americans will choose between Obama, who supports the right of gays and lesbians to marry, and challenger Mitt Romney, who does not. It’s not an issue Romney and the Republicans are keen to bring up on the campaign trail, however. A few years ago, it was an effective wedge issue. Now, it’s almost an embarrassment. And that should tell you which side has the momentum.

In loco parentis

An Alberta court has awarded custody of a nine year-old child to the biological father’s former same-sex partner:

In a precedent-setting case, a Calgary judge has granted custody of an eight-year-old girl to a gay man over his former partner and biological father of the child.

The two men had shared parenting duties of the girl for three years before they split in 2006.

However, Court of Queen’s Justice Suzanne Bensler ruled that the parental and guardian responsibilities will remain the same while R., the biological father of baby S., pursues parental rights under the Amended Act of the Family Law Act.


The judge said she accepted earlier findings of the court, by Justice Kristine Eidsvik, that both during the planning for conception and after the birth of the child S., there was an understanding that R. and H. would have the primary parenting responsibilities over S. and that D. would carry the baby for them in return for the opportunity to have and to raise baby N., also using assisted conception, along with her lesbian partner.

“It is contrary to the best interests of the child S. to be limited to the legal recognition of a sole parent, Ms. D.,” the judge wrote. “There is no other methods of correcting for this deprivation . . . I thus declare Mr. H. to be a legal parent of S.”

The judge said, though, R. has been granted a declaration of guardianship and has all the rights and responsibilities that accompany such status.


Bensler said even though the biological mother had not resided with the child for the first three years, she never did relinquish her parental or guardianship status and she and R. entered into a new parenting agreement which named each of them as guardians.

Following the separation of the two men, however, relations soured and became quite acrimonious and the two biological parents “denied any meaningful access” to H, claiming it was not in the best interests of the child.

The court, though, granted H. reasonable access pending trial or a further court order, and he began to exercise his access rights.

That further deteriorated the relationship between H. and R. and a parenting assessment was performed. Following that, an order in November 2007 discontinued contact between H. and S. and H.’s relationship with the child became virtually non-existent, said the judge.

H. then brought an application for access on the basis that he was a person standing in the place of a parent, or that he was a person who could be considered a parent in law.

Once you get past this case involving a same-sex couple – and the court’s finding that there are three individuals who have an interest in parenting this child – it seems like a relatively straightforward application of the in loco parentis principle.

In loco parentis literally means “in the place of a parent,” and it is applied in situations where a non-biological or non-adoptive parent has taken on a parenting role substantial enough that access or even custody is in the child’s best interests.  (That’s a double-edged sword: the in loco parentis parent may also have to pay child support.)

It doesn’t appear that the written decision is available online, but the biological parents’ denial of access to H. may have also been a factor.  When determining what is in the best interests of a child, the courts will consider the parties’ willingness to allow a relationship with the other parent.  Or, in this case, parents.

The right thing

New York State Senator Roy MacDonald, a Republican, on his decision to vote in favor of same-sex marriage:

“You get to the point where you evolve in your life where everything isn’t black and white, good and bad, and you try to do the right thing,” McDonald, 64, told reporters.

“You might not like that. You might be very cynical about that. Well, f— it, I don’t care what you think. I’m trying to do the right thing.

“I’m tired of Republican-Democrat politics. They can take the job and shove it. I come from a blue-collar background. I’m trying to do the right thing, and that’s where I’m going with this.”

More Republicans like this (and Ted Olson), please.

Same-sex marriage in Saskatchewan: no opting out

The Saskatchewan Court of Appeal has ruled that provincial marriage commissioners may not refuse to perform same-sex marriages, despite their religious beliefs:

In its decision, the Appeal Court said that accommodating commissioners’ religious convictions does not justify discriminating against same-sex couples who want to tie the knot.

Five judges on the bench at Saskatchewan’s Court of Appeal have been considering the case since it heard arguments on the proposed law last May.

That’s when the provincial government sought advice on two versions of its proposed law — one that would allow all of the province’s approximately 370 commissioners to refuse to wed couples on religious grounds, and another that would only allow the exemption for those who held the job before gay marriage was legalized in 2004.

In the ruling issued Monday, the court said the effect of both options runs counter to Canada’s Charter of Rights and Freedoms.

“Either of them, if enacted, would violate the equality rights of gay and lesbian individuals. This violation would not be reasonable and justifiable within the meaning of s. 1 of the Charter. As a result, if put in place, either option would be unconstitutional and of no force or effect.”

In its decision, the court notes that marriage commissioners offer the only option for any individuals who want to marry in a non-religious ceremony.

“Many gay and lesbian couples will not have access to the institution of marriage unless they are able to call on a marriage commissioner to perform the required ceremony,” the decision stated.

Detractors had argued that no rights would be violated because the proposed law compelled anyone refusing to perform a same-sex civil wedding to refer the couple to another commissioner who will.

But the court did not find that argument persuasive, observing there were no provisions to guarantee a minimum number of commissioners, accessible throughout the province, who would be willing to marry same-sex couples.

“It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer ‘I won’t help you because you are black (or Asian or First Nations) but someone else will’,” Justice Robert Richards wrote.

“Being told ‘I won’t help you because you are gay/lesbian but someone else will’ is no different.”

Sask. Justice Minister Don Morgan said the government will review the decision but added he did not think he would appeal.

Decision here.  I support same-sex marriage, and I would agree that new marriage commissioners have no business taking the job if they won’t perform such ceremonies.

That said, I’d still like to see the Supreme Court of Canada hear the issue.  Not just to clear up any controversy which may exist elsewhere in the country, but also because I think a fair case can be made for a grandfather clause.  Same-sex marriage went from loony fringe concept to established right in near-record time, and part of me would like to see the previous generation, overtaken by this remarkable social change, be allowed to finish out its term.