Ted Olson, Attorney Who Helped Lead Legal Effort To Overturn California’s Proposition 8, Dies At 84
Ted Olson, the conservative attorney who formed an unexpected alliance with a liberal counterpart to mount a legal challenge to overturn California’s ban on same-sex marriage, Proposition 8, has died. He was 84.
His law firm Gibson Dunn, where he was a partner, confirmed his death, but did not give a cause.
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Theodore Boutrous Jr., another partner at the firm who also was part of the Prop 8 legal team, said in a statement, “Ted has been the heart and soul of Gibson Dunn for six decades and made us who we are today. He was not just an incomparable lawyer, mentor, role model, and friend, but he has made immeasurable contributions to the rule of law, our Constitution, and our country. We will miss him with all our hearts.”
Following the passage of Proposition 8 in 2008, a group of activists and entertainment industry figures, including Chad Griffin and Rob Reiner, teamed together to wage a federal legal challenge. Reiner and Griffin enlisted Olson to lead the effort, and Olson was then joined by David Boies, a prominent Democratic lawyer. The attorneys had been on opposite sides of the legal fight during the 2000 presidential recount, a protracted process that went to the Supreme Court and eventually led to George W. Bush’s victory.
Olson and Boies found common ground on the issue of same-sex marriage, seeing it as a right enshrined in the Constitution under the due process and equal protection clauses of the Fourteenth Amendment. Two couples — Paul Katami and Jeff Zarrillo, and Sandy Stier and Kris Perry — were plaintiffs in the case, filed in 2009 and backed by a non-profit, the American Foundation for Equal Rights, funded by Reiner and other Hollywood donors.
The case went to trial the following year in San Francisco, with the judge, Vaughn Walker, siding with the plaintiffs. They were also victorious on appeal. In 2013, the Supreme Court ruled that the proponents of Prop 8, including evangelical legal groups, did not have standing to challenge the court decisions. Same-sex marriages then resumed in California.
At oral arguments before the high court, Olson responded to a question from Justice Antonin Scalia, who challenged his reasoning that same-sex marriage rights were enshrined in the Constitution.
“When did it become unconstitutional to exclude homosexual couples from marriage?”
Olson answered, “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”
Two years later, the Supreme Court ruled that marriage equality was legal nationwide.
Olson’s experiences on the case were part of a documentary, The Case Against 8, which aired on HBO in 2014.
Olson served as solicitor general under Bush from 2001 to 2004, and from 1981 to 1984, he was Assistant Attorney General in charge of the Office of Legal Counsel in the U.S. Department of Justice.
He argued 65 cases before the Supreme Court, including one, Citizens United v. Federal Election Commission, in which he represented the group that successfully challenged campaign finance laws. The case was decided as the Prop 8 trial was proceeding in San Francisco, underscoring the divergent ideological figures who were arguing in favor of same-sex marriage.
Olson is survived by his wife. Lady Booth, and two children from his first marriage, according to The Washington Post. His third wife, TV commentator Barbara Olson, died in the hijacked airplane that was crashed into the Pentagon on Sept. 11, 2001.
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