Theodore (“Ted”) Olson has argued 59 cases before the U.S. Supreme Court, but his 60th argument before the justices has the potential to be the one for which the Gibson, Dunn & Crutcher partner will be most remembered. In March, the Court will hear Hollingsworth v. Perry, the challenge to Proposition 8, the 2008 ballot initiative that amended the California constitution to eliminate the marriage rights of same-sex couples. Olson and his co-counsel, David Boies of Boies, Schiller & Flexner, hope to persuade the Court that Prop 8 itself violates the U.S. Constitution.
But even supporters of marriage equality worry that it’s too soon to bring a case like Perry before the Court. (The other case that the justices will hear in tandem with Perry is considered to have better odds. In U.S. v. Windsor, advocates of marriage equality seek to overturn the section of the Defense of Marriage Act that bars the federal government from recognizing same-sex marriages performed in the states in which they’re legal.) In an interview with Recorder sibling publication Litigation Daily, Olson told us why he thinks the time is right for his case. An edited version of the conversation follows.
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