Monday, conservative legal giant Ted Olson began a new trial, this one involving a federal challenge to Proposition 8, California's ban on same-sex marriage. The case, Perry v. Schwarzenegger, is the latest and arguably most important legal review of what has become a nationwide debate about affording rights to same-sex couples.
That the New Jersey Senate on Jan. 7 rejected legislation to legalize same-sex marriage a month after New York's state legislature did the same only heightens the stakes for Proposition 8 opponents.
Such high-profile legal tussles are nothing new for Olson, who has argued 55 cases before the U.S. Supreme Court, including his representation of then-Gov. George W. Bush in Bush v. Gore, the case that sent Bush to the White House. Olson would later serve that administration as solicitor general. Before that, he was an assistant attorney general for President Ronald Reagan's Office of Legal Counsel.
All of which makes the side Olson has chosen in the California case — he'll argue that state-imposed bans on same-sex marriages violate the Constitution — surprising to many. As does the fact that Olson's co-counsel is David Boies, who represented the former vice president in Bush v. Gore.
No wonder some on the right see Olson's recent professional conduct as being at odds with conservative bona fides. But Olson recently sounded to me like a man reaffirming a central pillar of that outlook. "I think one of the great principles of conservatism is individual liberty and freedom of thought and freedom of association," he told me.
"I think it's important in this country that we give people liberty of behaving in ways in compliance with the law, but to have the relationships that the rest of us have," he continued. "And to discriminate against people on the basis of their sexual orientation makes no sense with respect to marriage and their desire to live with one another in a peaceful, stable relationship. And it's good for our society to stop discriminating on that basis."
Too bad for the GOP that its base won't allow that emphasis on individual liberty and the pursuit of equality — the ultimate crux of the GOP of Lincoln and Reagan — to be a road map for a party looking to gain ground in this year's midterm elections and position itself to retake the White House in 2012.
Olson rightly pointed out during our conversation that "society suffers no benefit" from outlawing same-sex marriage. There isn't any "real basis," he said, for the belief that legalizing such relationships would invite the deterioration of heterosexual marriage or encourage polygamy. Nor does his case compel Christianity — or any other religion — to recognize gay marriage.
"What we're arguing does not prevent a religious organization from having their own rules or their own standards or their own principles," Olson noted. "But we're talking about a civic relationship recognized by the state, and it should not be denied to individuals on the basis of their sexual orientation." Olson is motivated by principles of limited government and individual freedom.
Yet the same people who decry federal bailouts or single-payer health-care as examples of government excess are only too happy to see government in this instance intervene in the personal lives of millions of gay and lesbian couples. It's the same type of inconsistency that encouraged scores of elected interlopers to use as many branches of state and federal government as necessary to affect Terri Schiavo's end-of-life decision.
Meanwhile, the real conservative purist is the one advocating against government-imposed distinctions between heterosexual and gay marriage. In that regard, Olson is doing more to invoke a core GOP principle than any Tea Party protester or town hall screamer.
"It seems to me — and I hope I'm not overdoing this here — but it seems to me that conservatives should think about the values that are at the core of our principles," Olson said. "And that those principles stand for equality and dignity and decency and treating Americans without discrimination." Not to mention the idea that the federal government should stay "off our backs, out of our pocketbooks, and out of our bedrooms," as Barry Goldwater — whose presidential campaign Olson supported in 1964 — once said.
Smerconish writes a weekly column for The Philadelphia Inquirer.