Theodore Olson, a conservative lawyer who helped George W. Bush secure the White House and later worked to overturn California's ban on same-sex marriage, died November 13. He was 84.
The Washington Post reported that Mr. Olson died at a hospital in Falls Church, Virginia. Gibson Dunn, a prominent law firm where Mr. Olson had long been a partner, announced his death. No cause was given.
Many in the LGBTQ community saw Mr. Olson as an unlikely choice when he was tapped by the American Foundation for Equal Rights to fight Proposition 8, California's same-sex marriage ban that voters passed in November 2008. The foundation enlisted two same-sex couples, Kris Perry and Sandy Stier of Berkeley, and Paul Katami and Jeff Zarrillo of Los Angeles, to be plaintiffs in the case, known as Hollingsworth v. Perry. The foundation was founded by Chad Griffin, a gay man, to overturn Prop 8. (Griffin would go on to lead the Human Rights Campaign from 2012 to 2019.)
According to the Post, it was Mr. Olson who suggested to the foundation that David Boies, a well-known liberal lawyer, be brought on as co-counsel in the Prop 8 case. Boies had argued on the opposite side of Mr. Olson in the 2000 Bush v. Gore case that ultimately handed the presidency to Bush. The legal star power guaranteed media coverage, as people learned the stories of the plaintiff couples and why marrying was important to them.
In a phone interview with the Bay Area Reporter Thursday, Perry, now executive director at Children and Screens, a nonprofit, recalled Mr. Olson's legal acumen, and the initial skepticism that accompanied the announcement he would be arguing the case for the plaintiff couples.
"We were excited and interested in their legal partnership and legal approach," she said of Mr. Olson and Boies. "They had a track record of being on opposite sides — in Bush v. Gore. We knew about Ted's other efforts as a conservative."
But as the case unfolded, Perry said that she saw something important was happening.
"It was an opportunity to break down this wall of partisanship" around marriage equality, she said. "And, in fact, that's what happened."
She recalled Mr. Olson talking to the press about the fundamental right to marriage, and in doing so, she said, he changed minds in the court of public opinion.
"He described marriage as a value most Americans hold dear," Perry said, "and made it easier to win at the Supreme Court in Obergefell. It was actually really significant for him to step in. Conservatives began to see how they could support marriage equality."
Perry added that the skepticism around Mr. Olson initially "was warranted and healthy."
She noted, "He had to answer those questions and prove to everyone he was a good choice."
Perry also recalled Olson working with her and Stier in prepping them for their testimony.
"He sat in rooms with Sandy and I day after day," she said, adding that she had to overcome her fear of testifying.
Perry described herself as an "imperfect plaintiff" because she expected the status quo, as in not ever seeing same-sex marriage be legal.
"He personally helped me want that," she said of the right to marry.
Perry said that she and Stier mourn Mr. Olson's passing.
"He was a very warm, loving, generous, accepting person," Perry said. "We lost a giant."
The Hollingsworth v. Perry trial was held in federal district court in San Francisco, beginning January 11, 2010.
"Never before had evidence been presented in a federal court to refute the claim that a person's sexual orientation should define whether he or she could marry," the foundation stated on its website.
"During 12 days of trial proceedings, Ted Olson and David Boies built an airtight case rooted in constitutional principles that clearly showed Proposition 8 was based on nothing more than prejudice and discrimination," the website stated.
Then-federal chief judge Vaughn Walker presided over the trial, which was heard without a jury — he would come out as gay after the trial — and ruled that August that Prop 8 was unconstitutional.
"Chief Judge Vaughn Walker's sweeping, 136-page ruling eviscerated the Proponents' case," the foundation's website stated. "His decision unequivocally declared that Proposition 8 is unconstitutional, that it is discriminatory, and that it serves no purpose other than to create second-class citizenship for gay and lesbian Americans."
The 9th U.S. Circuit Court of Appeals upheld Walker's decision in February 2012, and the U.S. Supreme Court in June 2013 upheld the appellate court's decision.
Perry and Stier were married by then-state attorney general Kamala Harris at San Francisco City Hall within hours of the high court's ruling. Famously, Harris had to get on the phone to speak to the county clerk in Los Angeles to tell staff there to begin marrying same-sex couples, the first of which were Katami and Zarrillo.
Charles Moran, president of Log Cabin Republicans, praised Mr. Olson in a post on X.
"Ted was a longtime advocate for welcoming LGBT conservatives into the Republican Party and an ally to the Log Cabin organization," Moran stated. "Most notably, he played a principled and critical role in the legal effort to overturn California's gay marriage ban, arguing against Prop 8 in court and paving the way for the Supreme Court's historic decision in Obergefell v. Hodges making marriage equality the law of the land. We are thankful for his leadership."
The high court ruled in the Obergefell case in 2015, two years after same-sex marriage became legal in California.
In a footnote to the federal Prop 8 trial, last year the video tapes of that proceeding were finally released after a lengthy court fight by public broadcaster KQED, as the B.A.R. reported. Walker had wanted the case to be broadcast live to other federal courthouses, but the U.S. Supreme Court ruled against his request. Nonetheless, Walker did tape the proceedings, saying at the time it would aid his deliberations.
More recently, on November 5, California voters approved Proposition 3, which excises the old Prop 8 language banning same-sex marriage from the state constitution.
Other work
In a statement on Gibson Dunn's website, the firm memorialized their colleague. Mr. Olson was the founder of the firm's appellate and constitutional law practice group and served in many firm leadership positions, as well as senior government roles, including solicitor general of the United States under Bush from 2001-2004. Mr. Olson also served as assistant attorney general in charge of the Office of Legal Counsel in the U.S. Department of Justice from 1981 to 1984.
"Ted has been the heart and soul of Gibson Dunn for six decades and made us who we are today," stated Theodore J. Boutrous Jr., partner at Gibson Dunn. "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."
Selected by Time magazine in 2010 as one of the 100 most influential people in the world, Mr. Olson was one of the nation's premier appellate and U.S. Supreme Court advocates, the firm noted.
He argued 65 cases in the Supreme Court, including the two Bush v. Gore cases arising out of the 2000 presidential election; Citizens United v. Federal Election Commission; Hollingsworth v. Perry, the case upholding the overturning of California's Proposition 8 banning same-sex marriages; and U.S. Dept. of Homeland Security v. Regents of the University of California, successfully challenging the Trump administration's rescission of the Deferred Action for Childhood Arrivals (DACA) program.
Mr. Olson's Supreme Court arguments included cases involving separation of powers; federalism; voting rights; the First Amendment; the equal protection and due process clauses; patents and copyrights; antitrust; taxation; property rights; punitive damages; the commerce clause; immigration; criminal law; securities; telecommunications; the internet; and other federal constitutional and statutory questions, according to Gibson Dunn.
He served as private counsel to two presidents, Ronald Reagan and Bush, in addition to serving those two presidents in high-level positions in the Department of Justice.
U.S. Attorney General Merrick Garland issued a statement November 15.
"The passing of Ted Olson is an enormous loss for the legal community," he stated. "Ted was an extraordinary attorney and public servant whose contributions to the Justice Department and the law will long be remembered.
"Ted exemplified what it means to be a principled person," Garland continued. "Throughout his career, both in government and private practice, he held steadfast to what he believed was right, regardless of criticism from any quarter. Even more important, throughout his life, he treated everyone with great kindness and decency."
Mr. Olson's third wife, conservative lawyer and commentator Barbara Olson, was on American Airlines Flight 77 en route to a taping of Bill Maher's ABC-TV show when the plane flew into the Pentagon on September 11, 2001. He later remarried and is survived by his fourth wife, attorney Lady Booth.
Updated, 11/15/24: This article has been updated with comments from U.S. Attorney General Merrick Garland.
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