Olson, Clement To Argue Opposite Sides of Gay Marriage at Supreme Court Next Week
By Mary Jacoby | March 22, 2013 4:47 pm

Former Solicitor General Ted Olson and his one-time protege, Paul Clement, will argue opposite sides of the gay marriage issue in separate cases before the Supreme Court next week.

Paul Clement

Olson was George W. Bush’s top lawyer before the Supreme Court. He was succeeded by his deputy, Clement, in 2004. Olson helped shape the conservative Federalist Society that later provided Clement and other conservatives a ladder to ascend to top legal policy positions in the government.

But as Jess Bravin notes in The Wall Street Journal (subscription required), their legal identities have evolved quite differently.

On Tuesday Olson will represent two gay couples challenging California’s prohibition on same-sex marriage. On Wednesday Clement will represent the House of Representatives in asking the court to uphold the 1996 Defense of Marriage Act, which banned gay marriage on the federal level.

“This isn’t the first time Ted and I have been on opposite sides of cases, but I like it even better when we are on the same side,” Clement, 46, told the Wall Street Journal. “He’s a terrific lawyer, and he’s a terrific gentleman.”

Olson, 72, was similarly complimentary of Clement: “He’s just about the finest lawyer I know.”

The Journal traces the arc of Olson’s career, from the Ronald Reagan administration and his fealty to the “original intent” theory of the Constitution, to more flexible interpretations more often found on the left.

Writes Bravin:

[I]n arguing for a constitutional right to same-sex marriage, Mr. Olson has embraced legal theories more often associated with the left, in which the Constitution’s expansive and aspirational terms, such as “equal protection” and “due process,” evolve along with the society they govern.

“Society is evolving. That’s why you have a Constitution” that reflects broad principles, he says. “You have to have something that’s going to be flexible because our ideas of society are going to change.”

As for Clement, Bravin writes:

[H]is brief on behalf of the Defense of Marriage Act pulls no punches in defending Congress’s power to deny equal status to same-sex spouses. Lawmakers had good reasons for enacting that law, he says, from saving money by denying gays survivor benefits to indicating an official preference for heterosexual parents.

Moreover, where Mr. Olson’s brief contends that gays and lesbians have faced unfair and even repressive laws because of their identity, Mr. Clement’s contends that “sexual orientation is a fluid characteristic capable of changing” and that, “unlike racial minorities and women, homosexuals as a class never have been politically disenfranchised.”


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