Ted Olson Key Note address to DOJ: “I do not recall, in my lifetime, a more rapid change in public opinion on an issue that has in the past been so intensely controversial and regrettably divisive.”


Moving Equality Forward:  The Power of Allies

The Great Hall of the Robert F. Kennedy Building, 11:00 a.m.

 Ted Olson, Speaker

I invariably experience a rush of awe and nostalgia when I return to the Department of Justice.  I am extraordinarily grateful for the privilege of having worked here for nearly eight years during the Reagan and Bush Administrations.  This is a very special place, populated by so many talented and dedicated individuals.  And by so many dear friends.  For me, it is very much like returning to a family. 

I am especially pleased to participate in the Department’s LGBT Pride Month Program and to be your keynote speaker.  This is a tribute to a segment of our society that continues to struggle, every single day, to achieve equality, respect and justice.  It is important to pause and consider where that struggle has been and where it is today.

Your theme today is “Moving Equality Forward:  The Power of Allies.”  That is a timely subject and an important reminder.  We are currently experiencing a phenomenal shift in peoples’ attitudes in this country in the direction of equality for the LGBT community and understanding of the issues it faces.  I do not recall, in my lifetime, a more rapid change in public opinion on an issue that has in the past been so intensely controversial and regrettably divisive.

I have been tracking this transformation with particular attention during the last 30 months or so that I have been involved in the legal effort to overturn California’s Constitutional Amendment, Proposition 8, which declares that only marriage between a man and woman will be recognized and valid in our nation’s most populated state.

Just two years ago, last month, our legal team, consisting of a number of lawyers from my law firm, as well as David Boies and several lawyers from his firm, filed a complaint in the United States District Court for the Northern District of California on behalf of two gay men and two lesbians, who wished to be married.  We had a 12 day trial seven months later in January of 2010.  A judgment striking down California’s Proposition 8 was rendered in August of last year and we are now winding our way through the labyrinth of appeals.  We’re quite a ways from the finish line, but anyone who has read the 136 page findings, conclusions and opinion by the trial court has recognized what a gratifying milestone that decision represents.

I began both my opening statement in the Perry v. Schwarzenegger, now Perry v. Brown, case with the same words.  “This case is about marriage and equality.”  We emphasized in the trial court and in the Ninth Circuit that the people of California had voted to engrave discrimination on the basis of sex and sexual orientation into their fundamental governing charter, eliminating a California constitutional right that the California Supreme Court had recognized four months earlier.  By this act, Californians marginalized over a million gay and lesbian Californians by denying their access to what the Supreme Court of the United States has repeatedly characterized as “the most important relation in life.”  Californians thus created a “second class of citizens,” branded them as different, separate, unequal, disfavored and as legally permissible objects of discrimination, and implicitly sanctioned targets of harassment and even violence.

This form of state-sanctioned discrimination against and hostility toward LGBT individuals is invidious and incredibly damaging—as those of you in this Great Hall particularly know, in a thousand different ways.  And yet, this brand of prejudice has been accepted in our society for so long that it has seemed commonplace and unremarkable to many of our citizens.  An immense part of the problem has therefore been education—making people understand the wrong that we are doing and the harm that we are inflicting by these attitudes.

We recognized from the very beginning of our Prop. 8 case that our job was not just to change the law, but to attempt in whatever way possible to assist in changing the culture that tolerates this form of discrimination.  Of course, our case had to be exceedingly well grounded legally, from the foundation, if we were ultimately going to persuade the courts of this nation that discrimination on the basis of sexual orientation in the vital institution of marriage was a violation of the fundamental rights of liberty, privacy, association, and equality.  But a victory in court would be a hollow one indeed if the public regarded such a decision as unwarranted, ill-founded or illegitimate.

We believed that, at the core, the legal issues and the public’s perception of this case and the issues it presented were interrelated and inseparable.  The legal case can help educate the public about the nature of sexual orientation discrimination; its historical origins; the political, social, and psychological harm it causes; and the absence of any legitimate governmental interest creating, supporting or sanctioning such discrimination.  On the other hand, the more public opinion shifts against discrimination and favors equality, the easier it will be for judges to conclude that a decision striking down Proposition 8 is right, acceptable, in the mainstream and constitutionally compelled.  Everyone knows that the judiciary is not isolated from the attitudes of the society in which it operates.  Judges undoubtedly do their best to be impartial and just, but they live in the same world we do, and the more an outcome appears to be radical, the less it is likely to be reached; the more it is perceived to be consistent with public opinion, the more natural it seems.

In 1948, California was the first Supreme Court to strike down miscegenation statutes as unconstitutional.  At that time over 30 states had such laws.  By the time the issue reached the U.S. Supreme Court, twenty years later, Virginia was one of 16 states that still prohibited interracial marriages.  The Court unanimously struck down Virginia’s law in 1967.  Today—just over forty years later, the public finds it incredible that such laws existed and that, when our President was born, if his parents had been living in Virginia, they would have been felons.

We hope that someday the United States Supreme Court will conclude that marriage can no more be denied to individuals because they are marrying someone of the “wrong” sex than it can be denied for marrying someone of the “wrong” race.  When that day comes, we hope that the public will be as accepting of that decision as it now is of Loving v. Virginia.

We have taken several steps to recruit allies and help move the public’s perception of Proposition 8 and the injustice of state sponsored sexual orientation discrimination.

First, we considered the composition of legal team.  The message we wanted to send by including David Boies along with me at the top of our legal effort was that the issues in this case are not conservative or liberal, Republican or Democratic, but American—values that are fundamental to all Americans.  The additional advantage is that, as opponents in the Bush v. Gore case, we presented enough of a novelty (“odd couple,” “strange bedfellows”) that the media wanted to hear from us and to explore with us our explanation as to why we were together on this venture.  That, of course, gave us, and still gives us, innumerable opportunities to explain to wide audiences why Proposition 8 and similar measures are wrong, unlawful and why attitudes should change.  We have taken full advantage of these openings, appearing on national media with Bill Moyers, on NBC, CNN, Fox, MSNBC, NPR, and so forth.  We have written op-eds and essays such as this cover feature for Newsweek.  And we have appeared at corporate-sponsored events such as The New York Times, Time-Warner and many more.

Second, we created a 501(c)(3) to help fund the case, including an advisory board consisting of prominent liberals such as Chad Griffin, Rob and Michele Reiner, and John Podesta, but also conservatives such as former RNC Chairman Ken Mehlman, Margaret Hoover and Cato Board Chairman Bob Levy.  The message is obvious—this issue spans the entire political spectrum.

Third, we urged live television of the trial and the Ninth Circuit arguments.  Even though the trial was not televised, bloggers from the overflow courtroom kept the nation informed from moment to moment.  Reenactments in public parks and auditoriums.

Fourth, the trial itself.  Our plaintiffs [describe].  Our lay witnesses Ryan Kendall and Helen Zia, the Mayor of San Diego, Jerry Sanders, a former cop and conservative.  Dr. Hah-Shing William Tam, a proponent.  Nine experts from UCLA, Harvard, Columbia, Stanford, Yale, University of California, Cambridge.  Leading experts in the history of marriage; social history and legal discrimination in America; an economist on the economic effects of discrimination;  psychologists—concerning the social/psychological benefits of marriage, the damage to individuals from being denied that relationship; a social psychologist on the emotional and social damage caused by stigma and discrimination; a psychologist on the nature of sexual orientation and the effects of prejudice; and a political scientist, describing the history and impact of discrimination against gays and lesbians.  In short, our trial was a remarkable education experience for everyone.  The trial court’s findings and conclusions created a strong foundation on which other cases can be built.  We anticipate documentaries, plays and perhaps a movie based on the case.

Fifth, fundraisers and public events:  New York (bankers, investment community) (art auction), Los Angeles (Elton John concert) Aspen, San Francisco, a rally in West Hollywood.  We keep widening our support by encouraging and recruiting personal involvement in this case.

The result is that the case and its issues have been widely publicized.  We have a treasure trove of anecdotal reports of minds being opened and opinions changing. For example, Ken Mehlman coming out.  Lady Gaga declared one of the songs on her album inspired by Prop 8 case.  Marissa Tomei readings in parks.

We, of course, cannot begin to quantify the degree to which the Proposition 8 has contributed to changes in public opinion.  Other events have been exceedingly important.  Litigation in other states; court decisions such as the DOMA litigation; President Obama and Attorney General Holder’s decision not to defend DOMA; Congressional repeal of DADT.  What we do know is that attitudes are changing, opinions are snowballing.

Recent polls—for what they are worth, all show enormous and rapid change:  Post/ABC; Gallup; CNN, Pew, CBS, AP/Nat’l Const. Center.  Polls in Virginia, Maine, Minnesota, New York.  From ’09-’11, up an average of more than ten points.  The most dramatic, the Post/ABC poll that went from 40 in favor and 57% against to 53% in favor to 45% oppose.  That’s a negative 17% to a plus 8%, a net gain of 25% in 24 months!

We must not overstate the significance of these polls.  When people vote, they often express less sympathetic views than they do when they respond to polls.  There is a long way to go.  But the polls are uniformly moving in the right direction and the momentum is rapid unmistakable.  And the poll numbers, for people under 30, are overwhelmingly supportive.  Even Republicans changing rapidly.  One poll showed a shift from 15% support to 30% support among Republicans over a short period.

We have learned what most of you already know.  That the more members of the public realize that their brothers and sisters, nieces and nephews, their co-workers, their friends, their doctors, their grocers, their booksellers, and their neighbors are part of the LGBT community.  The more they understand what it is to be gay, the more they understand the damage that discrimination does, the more they will appreciate that values of equality, fairness, decency and dignity, must be extended to all, the more they will contribute to the eradication of this sad vestige of discrimination.


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