Bench Memos

The Younger, Wiser Ted Olson vs. the New Version

The Ninth Circuit oral argument in the Prop 8 appeal will take place on Monday, and former conservative Ted Olson will continue to press his case for judicial invention of a constitutional right to same-sex marriage.

The constraints of sound reasoning aside, Olson of course is free to abandon the principles of constitutional interpretation that he professed to embrace during his previous life as a constitutional conservative. But Olson is pretending that he hasn’t done so and is trying to leverage his past reputation in support of his newfound cause.

For a stark illustration of Olson’s constitutional reversal—both on general principles and on the subject of homosexuality specifically—let’s take a look at what he had to say when the Supreme Court issued its 1996 decision in Romer v. Evans.

In an article that he published in a Federalist Society newsletter, Olson, echoing the language of Justice Scalia’s dissent, calls the Romer decision “an astonishing victory for the proposition that it violated the Equal Protection Clause for Colorado citizens to prohibit special legal protections for homosexuals.” This “astonishing victory,” Olson clearly believed, was undeserved. As he explained, “The Colorado constitutional amendment did no more than repeal municipal laws, and prohibit future laws, that gave ‘preferences’ or ‘protected status’ on the basis of ‘homosexual orientation.’” Further, Scalia “reminded the Court”—note: “reminded,” not “contended”—“that the decision was irreconcilable with the Court’s decision a few years ago in Bowers v. Hardwick.”

In that same article, Olson discussed the VMI case (United States v. Virginia), in which the Court held that VMI could not maintain its single-sex status. Olson praised Scalia’s dissent as “one of the most elegant and moving opinions I have ever read.” In the passage from the dissent that he quoted, Scalia argued that a democratic system “is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution” and condemned “this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of society … into our Basic Law.”

Olson then wrapped up his assessment of the two cases:

Romer and VMI have been explained as reflecting the Court’s sensitivity to individual rights and its hostility to any classification that sets any group apart. But it is difficult to support that generalization. Ironically, that Court has said that there can be no public discrimination against single-sex sex, but that public support for single-sex education is unconstitutional. I would have to agree with Justice Scalia that this seems to be incorporating society’s current preferences into the Constitution and that that is a very perilous course.  [Boldfacing added]

If “incorporating society’s current preferences into the Constitution” is “a very perilous course” (and I certainly agree that it is), it is all the more perilous to be entrenching in constitutional guise the current preferences of what has been demonstrated, in election after election, to be a minority. (And, no, I am of course not disputing that genuine constitutional rights operate in a countermajoritarian fashion.)

Seemingly intoxicated by his new role, Olson is now racing recklessly down the “very perilous course” that he once warned against—in far more modest contexts—and he’s trying to drag the nation along with him.

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