Ted Olson – Will You Marry Me?

It wasn’t so long ago that Ted Olson’s name was mud to many progressives. A 2001 salon.com piece labeled him a “partisan legal warrior” and a “shadowy figure” who displayed a “furious obsession with the Clintons” and “dubious conduct in pursuing them” with good friend Kenneth Starr. Ronald Reagan hired Olson as a private attorney during Iran-Contra. And it was Olson who represented George W. Bush before the Supreme Court inBush v. Gore which ultimately landed W. an eight year stint at 1600 Pennsylvania Ave.

Today, Olson is a central figure in the fight for marriage equality, and a damned good one at that. Along with his friend and former adversary in Bush v Gore, David Boies, Olson successfully repealed Proposition 8 last week. This onetime member of the board of directors of American Spectator, former Solicitor General for W., and a guy who himself has been married four times, Olson is a Republican legend and perhaps our strongest ally yet in protecting our right to matrimony.

In the January issue of Newsweek, Olson made “A Conservative Case for Gay Marriage.” Admitting “many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage,” Olson moves the debate to fresh ground:

Americans who believe in the words of the Declaration of Independence, in Lincoln's Gettysburg Address, in the 14th Amendment, and in the Constitution's guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues. This is not a conservative or liberal issue; it is an American one, and it is time that we, as Americans, embraced it.

In other words, Olson is positioning marriage equality as a traditional American value, as American as Lincoln and the Declaration of Independence, as American as Reagan’s “It’s Morning in America.”

In his Fox News interview with Chris Wallace last week, Olson outlined his logic in such a simple, elegant way, even Wallace admitted to being impressed. To Wallace’s charges of judicial activism, Olson provides another frame. Because marriage is a fundamental right accorded to all of us by the Supreme Court, then the judge in this case is not so much activating the civil rights of a minority group, but protecting the rights of everyone. As Olson reminded Wallace, in the 1960s, “Californians voted to change their constitution to say that you could discriminate on the basis of race in the sale of your home; the United States Supreme Court struck that down.” To this logic, Wallace has to bow out, “After your appearance today, I don’t understand how you ever lost a case.”

As fresh as it sounds in this case, Olson’s logic is in fact the foundation for most conservative stands around limiting the public’s ability to mess with the founding principles of America. Back in the 1960s, the Right successfully framed civil rights as “special rights,” as people asking for something above and beyond what everyone else gets – as if America wasn’t enough “for them.” Here, Olson is flipping the script, framing gay marriage as a foundational American right. His job is not to get special rights for minorities, but to prevent seven million California voters from “withdrawing access” to the rights afforded of all by this great country.

Yet, what makes this logic so enticing today is also what made it seem so jingoistic back in the day. The ease with which Olson uses American symbols in his argument – the flag, the Declaration of Independence, Abraham Lincoln – betrays the kind of confidence that can only come from taking fitting in for granted, from living in the big fat middle. You can practically hear the liberty bell ringing when in his Newsweek piece he says:

The dream that became America began with the revolutionary concept expressed in the Declaration of Independence in words that are among the most noble and elegant ever written: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Reading this makes me want to powder my wig. And why shouldn’t I?  Even if it has taken a staunch conservative to remind me, they are my symbols too, and they are as American as the right to wed.

Belinda Baldwin writes frequently on the topics of media, popular culture and social change for a variety of magazines and journals including the Harvard Book Review, The Advocate, Documentary and MovieMaker