This morning, Ted Olson — the conservative lawyer who represented President Bush in Bush v. Gore — appeared on Fox News Sunday to discuss his recent victory in overturning Proposition 8, which banned same-sex marriages in California. Throughout the interview, host Chris Wallace attempted to trip up his guest with a series of familiar Republican talking points, all of which Olson repudiated.
Wallace asked Olson to identify the right to same-sex marriage in the constitution and wondered why “seven million Californians” “don’t get to say that marriage is between a man and a woman.” Olson replied that the Supreme Court has ruled that marriage was a fundamental right and pointed out that the constitution made no explicit mention of interracial marriage either. He stressed that under our system of government, voters can’t deprive minority groups of their constitutionally guaranteed protections and reminded Wallace that in the 1960s, “Californians voted to change their constitution to say that you could discriminate on the basis of race in the sale of your home; the United States Supreme Court struck that down.”
When Wallace pressed the point further, likening same-sex marriage to abortion and noting that “the political process in the case of same-sex marriage was working” since states had been deciding the issue on a “state-by-state basis,” Olson asked Wallace how he would like it if Fox News’ right to free speech was decided in such a manner:
OLSON: Well, would you like your right to free speech? Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do? These are fundament constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I’m very, very pleased about that. … We can’t wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated.
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At the end of the interview, Wallace conceded that his right-wing points failed to crack Olson’s arguments. “Mr. Olson, we want to thank you so much for joining us today. We’ll keep following your lawsuit. And I gotta say, after your appearance today, I don’t understand how you ever lost a case in the supreme court, sir,” he said.