June 06, 2018

At the ABA, Ted Olson looks back on the fight for marriage equality

Saying that “marriage is a conservative value,” and “we should want people to come together in marriage,” Ted Olson, former U.S. solicitor general and now partner at Gibson Dunn, spoke to American Bar Association staff and Gibson Dunn lawyers about his work on the case to overturn the ban on same-sex marriage.

Ted Olson, former U.S. solicitor general and Zakiyyah T. Salim-Williams, Chief Diversity Officer at Gibson Dunn

Introducing him as America’s “preeminent appellate counsel” who has argued 63 cases before the Supreme Court, ABA Executive Director Jack Rives opened “The Road to Marriage Equality” program at the ABA offices in Washington, D.C., on June 6 to commemorate LGBTQ Pride Month and Loving Day (June 12).

Many cases came together to bring about marriage equality, but this key one had its beginnings when opponents to a May 2008 California Supreme Court decision granting same-sex marriage put Proposition 8 – the California Marriage Protection Act – on the ballot that November. And while California voters overwhelmingly voted for Barack Obama for president, they also voted for Prop 8.

Immediately there was a movement to file a lawsuit against Prop 8, spearheaded by Hollywood director Rob Reiner. Olson’s name was mentioned as a legal heavyweight who could help the cause. He agreed to take on Perry v. Schwarzenegger “if it was done right.”

Doing it right, according to Olson, involved:

  • Using the principles of equal protection under the law and due process to argue that marriage is a fundamental right

  • Using the case to help change opinions in America (which at the time were about 57 percent against same-sex marriage and 43 percent for it)

  • Bringing in his legal adversary from the Bush v. Gore case, David Boies, so the two of them could draw press coverage, write op-eds and make TV appearances “whenever asked”

  • Hiring a film crew to document the case in real time so they would have a chronicle of how it went (the HBO documentary “The Case Against 8” came out in 2014)

  • Developing a media strategy as well as a court strategy

  • Carefully choosing the two men and two women plaintiffs, who “could take the heat” and could tell a story to the American people.

In January 2009, a three-week trial was held, followed by closing arguments in June. The decision was handed down in August 2010, and Olson said the 137-page opinion “was everything we could possibly expect.”

Despite the victory in district court, he knew the case would end up in the Supreme Court. It and several others did, and on June 26, 2013, the Supreme Court ruled the Defense of Marriage Act unconstitutional, and a few days later the plaintiffs in the Prop 8 case had the first two same-sex marriages performed in California.

Although some predicted a backlash to the decision, Olson (who, along with Boies was awarded the ABA Medal, the association’s highest honor, in 2011) said it never materialized, and national polls revealed that by the time of the national ruling, public opinion had swung from pre-Prop 8 numbers to 57 percent for same-sex marriage and 43 percent against it.

He remembered those who filled the courtroom in San Francisco to watch the trial, including a gay couple that had been together for 49 years. The trial “taught us about ourselves,” and that “we didn’t think we’d ever want to get married, but if you win, we will,” they told Olson.