Ted Olsen's conservative bonafides are unquestionable--he was at the first meeting of the Federalist Society, he ran The American Spectator and was one of the leaders of the Arkansas Project, which did everything it could to destroy Bill Clinton's presidency. He was lead counsel in Bush v Gore and was considered for the Supreme Court slot that Harriet Miers was nominated for and which Samuel Alito eventually filled (after some nomination switcheroo-ing).
And yet, in 2009, he joined with David Boies to challenge California's Proposition 8 which outlawed same-sex marriage, and in the latest Newsweek, he's written a good editorial outlining why he feels federal recognition of same-sex marriage is a conservative cause, or at least it should be. The whole thing is worth reading, though I doubt many minds will be changed by it. Yes, there's movement toward greater acceptance of same-sex unions in almost every poll, but I think that's due more to younger people who aren't hung up on homosexuality replacing older people who aren't willing to address their bigotry.
None of the arguments Olsen puts forward are new to anyone who's been engaged on this issue, but I like the way Olsen wraps his editorial up. Look at these two paragraphs.
California's Proposition 8 is particularly vulnerable to constitutional challenge, because that state has now enacted a crazy-quilt of marriage regulation that makes no sense to anyone. California recognizes marriage between men and women, including persons on death row, child abusers, and wife beaters. At the same time, California prohibits marriage by loving, caring, stable partners of the same sex, but tries to make up for it by giving them the alternative of "domestic partnerships" with virtually all of the rights of married persons except the official, state-approved status of marriage. Finally, California recognizes 18,000 same-sex marriages that took place in the months between the state Supreme Court's ruling that upheld gay-marriage rights and the decision of California's citizens to withdraw those rights by enacting Proposition 8.California's marriage laws are a clusterfuck of epic proportions and I doubt they'll stand, but I fear that the Supreme Court's conservatives, terrified that if they overturn Prop 8 and reinstate same-sex marriage in California will have to hear a Full Faith and Credit case soon afterward for someone in another state, will instead find a way to invalidate the 18,000 marriages that were performed when it was legal. And Scalia will probably lead the way, ignoring all his previous rhetoric about states' rights in the process. (Olsen takes a nice shot at Scalia on page 2 of the piece, which is nice.)
So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand.
It's also nice to see Olsen completely dismiss those who argue that homosexuality is a choice. He could have done it in stronger terms--I think that it's better to argue for LGBT rights on the basis of individual liberty rather than biology--but he states quite clearly that being gay is no more a choice than being left-handed, and he uses the dreaded s-word, science, to make his point.
Like I said, it's a good piece all the way around. It's worth the 15 minutes or so it'll take you to read it.