Theodore Olson, Conservative Lawyer Who Backed Marriage Equality, Dies at 84

Special to The Washington Post / Andrew Wolfson

17:22 JST, November 14, 2024

Theodore B. Olson, a conservative constitutional lawyer who argued the 2000 Florida vote-recount case that helped George W. Bush secure the presidency and, to much surprise, later joined forces with a liberal opponent from the election lawsuit in a successful effort to overturn California’s 2008 ban on same-sex marriage, died Nov. 13 at a hospital in Falls Church, Virginia. He was 84.

The death was announced by the law firm Gibson Dunn, where Mr. Olson was a partner. No cause was noted.

A legal luminary of the right, Mr. Olson spent most of his six-decade career as an appellate lawyer in private practice. He had two high-level government appointments – serving as assistant attorney general under President Ronald Reagan from 1981 to 1984 and solicitor general of the United States under Bush from 2001 to 2004. He was widely regarded as one of the top practitioners of his generation.

Mr. Olson appeared more than 60 times before the U.S. Supreme Court. He opposed race-based set-asides in federal contracting and college admissions, affirmed the freedom of the press and defended the young undocumented immigrants known as “dreamers.” What many of his arguments had in common was that they aligned with his libertarian brand of conservatism.

In 2000, the Republican Party tapped Mr. Olson to help Bush, then the Texas governor, in the legal battle following the closely fought election to determine the 43rd president of the United States.

The battle began with a wild election night in which TV networks called the key state of Florida for Vice President Al Gore, then for Bush, and then declared that the returns yielded no decisive result. In the confusion, Gore conceded the race but quickly retracted that concession.

It didn’t matter that Gore had won the national popular vote by 543,895. Lawyers for both sides set up war rooms to fight for the electoral college votes from Florida, a number that would decide the presidency.

A recount ensued – with rancorous partisan claims of voter fraud and suppression and deliberation over “hanging chads” on punch-card ballots. When the Florida Supreme Court ordered a recount in the state’s 67 counties, the Bush team appealed, setting up a U.S. Supreme Court showdown.

Mr. Olson ultimately prevailed. The U.S. Supreme Court first stayed the recount, then halted it altogether. The court decided 5-4 that the recount violated the Constitution’s equal protection clause because Florida counties were using different standards to determine whether ballots were valid. Florida put Bush’s electoral votes over the top, 271 to 266, propelling him to the White House.

When Bush nominated Mr. Olson as solicitor general, the federal government’s lead advocate before the Supreme Court, the Senate confirmed him, 51-47, over fierce opposition from Democrats who contended that he was too political for the post.

He won a strong endorsement, however, from Laurence H. Tribe, a liberal Democrat and Harvard law professor who represented Gore in the 2000 election contest and who vouched that Mr. Olson would perform his role “with honor, and with distinction.” Another leading liberal academic, Cass Sunstein, who had worked under Mr. Olson at the Justice Department in the early 1980s, called him “a fair-minded and independent-thinking person … not an ideologue by any means.”

Mr. Olson was known for much of his public life as a deliberative workaholic who preferred to stay behind the scenes. But he gradually became a star of Washington’s social-political-media scene, his profile raised by the 2000 election victory and his elevation to solicitor general. Another factor was the prominence of his third wife, Barbara Olson, a telegenic firebrand TV commentator and book author long hostile to Bill and Hillary Clinton.

Barbara Olson died aboard the hijacked airplane that crashed into the Pentagon on Sept. 11, 2001, which also happened to be Mr. Olson’s 61st birthday. She had called Mr. Olson moments before impact, he later recounted, staying on the line long enough for them to express their love for each other.

Mr. Olson said he dealt with his grief by immersing himself in his work defending the Bush administration’s controversial policy of detaining suspected terrorists indefinitely without charges.

“It is very, very helpful to participate – as Barbara would have and as Barbara would have wanted me to do – in every way possible to make our country safe again and to find the people who did this,” Mr. Olson told the ABC News program “Good Morning America” weeks after the terrorist attacks on Washington and New York that claimed nearly 3,000 lives.

Mr. Olson reportedly warned Bush administration officials that aspects of their efforts to broaden executive powers would not pass constitutional muster. The 2004 case Hamdi v. Rumsfeld affirmed the due process rights of detainees held by the United States as enemy combatants. Justice Sandra Day O’Connor, writing for a plurality, declared that “a state of war is not a blank check for the president.”

Mr. Olson successfully defended school vouchers, the recitation of the Pledge of Allegiance in public schools and the bipartisan 2002 McCain-Feingold Act regulating political campaign financing. He called McCain-Feingold – named for its chief sponsors, Sens. John McCain (R-Arizona) and Russ Feingold (D-Wisconsin) – a fitting response to “the relentless pursuit of big contributions” that influence the political process through infusions of “soft money” donations to the national parties.

He resigned in 2004 and returned to his partnership in the Washington office of the Los Angeles-based firm Gibson Dunn & Crutcher.

In 2010, he became a lead attorney in Citizens United v. Federal Election Commission, a landmark case that concerned election spending and freedom of speech and challenged federal campaign finance restrictions he had defended as solicitor general.

Mr. Olson represented Citizens United, a conservative nonprofit group that had produced a documentary film that presented a scathing assessment of Hillary Clinton as she sought the Democratic presidential nomination in 2008. The group wanted to pay cable TV companies to make the documentary available to viewers at no charge and sought relief from federal restrictions on corporate electioneering.

“If dancing nude and burning the flag are protected by the First Amendment, why would it not protect robust speech about the people who are running for office?” Mr. Olson remarked to the Wall Street Journal.

Mr. Olson helped persuade the court to strike down, in a 5-4 ruling, portions of the campaign finance law that restricted corporate and union spending on political advertising close to an election.

The decision allowed corporations and other groups to spend unlimited funds on political campaigns. However, the court rejected Citizens United’s attempt to have the film about Clinton (and ads for it) exempted from federal disclaimer and disclosure requirements.

With the election of Donald Trump as president in 2016, Mr. Olson found himself increasingly at odds with the Republican Party. In 2019, he persuaded the Supreme Court to reverse the Trump Justice Department’s decision to shut down the program that shielded from deportation about 700,000 young undocumented immigrants, known as dreamers, who had been brought to the United States as children.

“Executive power is important, and we respect it,” he told the New York Times. “But it has to be done the right way. It has to be done in an orderly fashion so that citizens can understand what is being done and people whose lives have depended on a governmental policy aren’t swept away arbitrarily and capriciously. And that’s what’s happened here.”

Overturning same-sex marriage ban

Mr. Olson said he considered his greatest legal legacy to be his role in invalidating California’s Proposition 8, a measure banning same-sex marriage that had passed in 2008 with 52 percent of the vote after the state’s Supreme Court legalized same-sex marriage.

He had come to the case in a most unlikely way, through Rob Reiner, the film director and liberal activist who was among those intent on reversing the recently approved proposition.

Reiner had a decidedly low opinion of Mr. Olson, stemming from what he regarded as Bush’s ill-gotten 2000 election win. But Mr. Olson told Reiner that he found Prop 8 “wrong, morally and legally,” and Reiner was convinced that the lawyer could appeal to conservatives.

“It is a conservative value to respect the relationship that people seek to have with one another, a stable, committed relationship that provides a backbone for our community, for our economy,” Mr. Olson later told the Los Angeles Times. “I think conservatives should value that.”

Mr. Olson endured taunts from former supporters on the hard right, some of whom unleashed homophobic vitriol. Conservative talk-show host Rush Limbaugh denounced him on the radio. Others declined invitations to dine at his home near the Potomac River.

Mr. Olson also said he wasn’t trusted by gay rights advocates who feared that Americans were not ready for same-sex marriage and that challenging the ban in court might backfire and set back the cause for years. Some marriage-equality supporters said they feared that Mr. Olson took the case intending to throw it, a notion he dismissed. “I don’t take cases to lose,” he declared.

In part to allay those suspicions, Mr. Olson asked David Boies – an impeccably credentialed trial lawyer and a registered Democrat who had argued Gore’s case in 2000 – to take the marriage case with him. To the Los Angeles Times, Mr. Olson explained that the case was not a partisan matter but rather one about “human rights and human decency and constitutional law.”

Mr. Olson delivered the opening statement on Jan. 11, 2010, in U.S. District Court for the Northern District of California.

“In California,” he said, “convicted murderers and child molesters enjoyed the freedom to marry,” he said. “What Prop 8 does is label gay and lesbian persons as different, inferior, unequal and disfavored. It says to gays and lesbians, ‘Your relationship is not the same.’ … It stigmatizes them. It classifies them as outcasts. It causes needless and unrelenting pain and isolation and humiliation.”

Judge Vaughn R. Walker, who heard the case without a jury, ultimately found Prop 8 violated the guarantee of equal protection under the law. Although the decision had an immediate effect only in California, it was a major rallying point nationally for gay rights proponents.

In 2013, the Supreme Court avoided ruling on the merits of same-sex marriage, although it affirmed Walker’s decision, finding that opponents of same-sex marriage lacked standing to defend Prop 8 in court.

Still, the win was credited with paving the way for the Supreme Court’s 2015 ruling in Obergefell v. Hodges, which extended marriage equality nationally.

Introduction to law

Theodore Bevry Olson was born in Chicago on Sept. 11, 1940, and grew up in Mountain View, California. His father was an engineer for United Airlines, and his mother was a homemaker and later a teacher of English and English as a second language.

In 1962, Mr. Olson received a bachelor’s degree in communications and history from the University of the Pacific in Stockton, California, where he developed an interest in law while on the debate team and from reading about the celebrated trial attorneys Clarence Darrow and Louis Nizer.

Mr. Olson enrolled in law school at the University of California at Berkeley, where he was one of the relatively few conservative students on campus. After graduating in 1965, he was hired by Gibson Dunn & Crutcher and rose to partner while developing a specialty in First Amendment law through cases involving clients such as NBC, Metromedia and the Los Angeles Times.

Mr. Olson became a protégé of a partner in the firm, William French Smith, and he joined the Justice Department in 1981 after Reagan named Smith attorney general. Mr. Olson headed the Office of Legal Counsel, providing a constitutional rationale in many high-profile cases. Among them were efforts to end race-based busing and affirmative action and Reagan’s decision to fire 12,000 striking air traffic controllers.

In 1984, Mr. Olson returned to Gibson Dunn to start an appellate practice and became a personal lawyer to Reagan during the Iran-contra scandal. He was credited with helping the president, who said he had no knowledge of the arms-for-hostages scheme, to emerge largely unscathed while several subordinates were convicted of crimes.

Mr. Olson was less successful when representing Jonathan Pollard, a U.S. naval intelligence analyst who pleaded guilty in 1986 to spying for Israel. In 1991, Mr. Olson argued that a life sentence for Pollard violated his plea agreement, but an appellate court disagreed, and the U.S. Supreme Court refused to hear the case. (Pollard was released in 2015 and moved to Israel, where he had acquired citizenship.)

In a significant First Amendment case, in 1992, Mr. Olson represented a reporter threatened with jail over a leak in a politically fraught story.

Timothy Phelps, a Newsday reporter based in Washington, had obtained a transcript of Anita Hill’s interview with the FBI in which she accused her former boss, embattled Supreme Court nominee Clarence Thomas, of sexual harassment. Phelps refused to disclose his source to a Senate special counsel.

“The Constitution protects not only the dissemination of news but methods of gathering the news,” Mr. Olson said at the time. The Senate Rules Committee agreed and did not allow the special counsel to compel Phelps or another journalist, Nina Totenberg of NPR, who was represented by Floyd Abrams, to name their sources.

Mr. Olson twice rejected Trump’s entreaties to represent him in criminal investigations, and he wrote with Boies an op-ed piece for The Washington Post denouncing Trump’s baseless attempt to reverse the result of the 2020 election. He and Boies also wrote a memoir, “Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality” (2014).

Mr. Olson’s marriages to Karen Beatie and Jolie Bales ended in divorce.

After the death of his third wife, the former Barbara Bracher, he was married in 2006 to Lady Booth, a Kentucky tax lawyer and lifelong Democrat to whom he had been introduced by mutual friends. In addition to his wife, survivors include two children from his first marriage, three grandchildren and five great-grandchildren.

Booth once joked that marrying Mr. Olson gave her life purpose: “to find the inner liberal in Ted Olson.” Mr. Olson said he remained a conservative, despite his wife’s attempts to change him.

“She’s working on me,” he told the Los Angeles Times. “It’s important to be surrounded by people who think differently than we do. We don’t learn anything if we surround ourselves by people who think the same way we do.”