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Theodore Olson: Making the conservative case for gay marriage

Tuesday, January 12, 2010
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As the trial over California’s ban on same-sex marriage gets underway in San Francisco this week in the case Perry v. Schwarzenegger, plantiff’s attorney Theodore Olson has become an unexpected crusader for the rights of millions of gay Americans.

Not so long ago, Olson argued before the U.S. Supreme Court in the landmark case Bush v. Gore, successfully securing the Presidency of the United States for George W. Bush in the 2000 election.

But these days, Olson — teamed with his former rival David Boies, who represented then-Vice President Al Gore — is on a new mission: making the case for same-sex marriage.

In a recent segment from NBC News and a new essay in Newsweek, Olsen takes his case for gay marriage to the American people, while simultaneously arguing on its behalf in federal court.

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In the Newsweek article, appearing in the January 18, 2010 print edition, with a video introduction currently online, Olson, a lifelong Republican, writes how this challenge to the “traditional” definition of marriage comes from what he sees as false perceptions about our Constitution and its protection of equality and fundamental rights.

Citing history, Olson writes:

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.”

Sadly, our nation has taken a long time to live up to the promise of equality. In 1857, the Supreme Court held that an African-American could not be a citizen. During the ensuing Civil War, Abraham Lincoln eloquently reminded the nation of its founding principle: “Our fathers brought forth on this continent, a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.”

At the end of the Civil War, to make the elusive promise of equality a reality, the 14th Amendment to the Constitution added the command that “no State shall deprive any person of life, liberty or property, without due process of law; nor deny to any person the equal protection of the laws.”

Subsequent laws and court decisions have made clear that equality under the law extends to persons of all races, religions, and places of origin. What better way to make this national aspiration complete than to apply the same protection to men and women who differ from others only on the basis of their sexual orientation? I cannot think of a single reason — and have not heard one since I undertook this venture — for continued discrimination against decent, hardworking members of our society on that basis.

Here’s hoping history repeats itself.

For more fascinating reading, here’s Olson’s complete essay in Newsweek, and the full text of his opening remarks in the case against Proposition 8.

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