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06.13.10

Will Boies and Olson Win the Gay Marriage Argument?

The future of same-sex unions will be determined Wednesday by liberal David Boies and conservative Ted Olson. John Avlon talks to the duo about the last legal hope of gay marriage in California.

Closing arguments in one of the prime civil-rights fights of our time is scheduled to take place this Wednesday in San Francisco, with the high drama surrounding the constitutional challenge to California's Prop 8 ban on same-sex marriage heightened by the unlikely duo making the case—conservative Ted Olson and liberal David Boies.

The two legal legends famously squared off in Bush v. Gore, but their personal friendship and shared principle on this issue have led them to push for marriage equality in the courts via Perry v. Schwarzenegger. It's a partnership that has many conservatives fuming and even some liberals suspicious in opposition, but it just might point to a way beyond the hyperpartisan politics that characterizes the culture wars.

“What David and I find working together is to find where we have common ground, common convictions and common principles and work forward from that.”

I spoke with them both Sunday night as they prepared their closing argument. "This is not and should not be viewed as a conservative or liberal or Republican or Democratic issue," says Boies. "This is a civil-rights issue and a human-rights issue."

But of course, politics doesn't stop at the courthouse door, and the real news of the partnership is the decision of Ted Olson—a Bush solicitor general who was present at the first meeting of the Federalist Society—to make the case that marriage equality is consistent with conservative principles. This seems to contradict the states' rights arguments we've come to expect from conservatives—and it's certainly counter to social conservative traditionalist principles—but it's entirely consistent with conservatives' oft-cited belief in individual freedom. (Full disclosure: My wife, Fox News analyst Margaret Hoover, is on the advisory board of the Olson/Boies effort.) Nonetheless, Olson has taken heat from friends and former allies like Reagan Attorney General Ed Meese.

"There's been a certain amount of grumbling—and some people have been more vociferous about it than others—about how I'm betraying principles that they thought that I stood for," Olson acknowledges. "We as conservatives should support the right of decent taxpaying citizens and individuals who want a stable relationship that forms a building block of our neighborhoods and our economy and our society. These are people that want to participate in life as citizens the way the rest of us do. We should be supportive as conservatives and as liberals. It's not exclusive to either party or either part of political spectrum."

"The right to marry is vital in society," Olson continues. "It's a right that's older than the Bill of Rights because it goes back to the common law. And the Supreme Court, in an 1888 case said it is the most important relation in life… The exclusion of people based upon their choice of a partner was rejected by the Supreme Court in 1967 in a case that struck down restrictions on interracial marriages. So we're not talking about a new constitutional right. We're talking about whether California can withhold an existing constitutional right from decent people, on the basis of their sexual orientation."

What's more unexpected than conservative critiques is the liberal opposition this legal action has inspired, with activist groups ranging from the ACLU to the Human Rights Campaign and Lambda Legal fretting that this case could inspire a broad-based political backlash against marriage equality because it is ahead of popular opinion, a sometimes dangerous place for controversial Supreme Court cases.

But Boies doesn't believe that pushing ahead with this case threatens the long-term acceptance of equal marriage rights for gays and lesbians. "People are so suspicious of the federal courts right now that they really don't see it as protecting rights," Boies admits. "But even if we were to lose in this case—which I know neither Ted nor I is planning to do—you still have the same opportunities to proceed under state law that you had before."

Another hurdle on the horizon comes from the widely held belief that this case will make its way to the Supreme Court in 2011 or 2012. The potential timing of such a final showdown could directly impact the next presidential campaign. In 2004, the specter of same-sex marriage was potently used as a political tool by conservatives who placed bans on the ballot in 11 states, all of which passed and had the effect of driving up social-conservative voter turnout. While President Obama has stated his opposition to same-sex marriage—favoring civil unions, instead, to date—a pre-November 2012 Supreme Court decision might have deep political reverberations while reigniting this front on the culture wars.

It's a possibility Boies deftly dismisses, saying "I think that the power of this issue to be used as a political football has been significantly diminished over the last four to six years. If you look at the polls, more and more people—particularly young people—believe that it's just plain wrong to discriminate based on sexual orientation."

America is in the middle of a gay civil-rights movement that has expanded dramatically in terms of both scope and acceptance over the past two decades. While polls do show increasing support for gay rights and marriage equality—while "Don't Ask Don't Tell" seems to be winding its way toward oblivion—no one should underestimate the emotional resonance of this issue. Same-sex marriage has, to date, been defeated at the ballot box every time it has been presented to voters—and therein lies the consequence and controversy of this court case.

The unique hope that the Olson/Boies partnership brings is that we can transcend the bitter, predictable partisanship that has derailed attempts to deal with the difficult issues of our day. Their friendship and recognition of shared principles across political divides is itself a hopeful sign.

"What David and I find working together is to find where we have common ground, common convictions, and common principles and work forward from that," Olson says. "We enjoy sitting down for dinner over a good bottle of wine and talking about it. I think that allows us to emphasize the things that we agree upon as opposed to things where we might have honestly held differences of opinion—and to come together and reason together with people. We're trying to persuade the public that we're correct on this. And when we speak the same language with the same principles and the same degree of conviction about these things, hopefully people will listen. And if we can do that in different areas, I think it would be wonderful."

John Avlon's new book Wingnuts: How the Lunatic Fringe Is Hijacking America is available now by Beast Books both on the Web and in paperback. He is also the author of Independent Nation: How Centrists Can Change American Politics. Previously, he served as chief speechwriter for New York City Mayor Rudy Giuliani and was a columnist and associate editor for The New York Sun.