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| Good Friends, Same Party but Legal Opponents | Good Friends, Same Party but Legal Opponents |
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| WASHINGTON — In the conference room at the Justice Department’s august Office of Legal Counsel, portraits of Theodore B. Olson and Charles J. Cooper hang side by side. Both men headed the office under President Ronald Reagan in the 1980s, with Mr. Cooper succeeding Mr. Olson. Both went on to stellar legal careers on the conservative side of Washington’s divided political universe. | WASHINGTON — In the conference room at the Justice Department’s august Office of Legal Counsel, portraits of Theodore B. Olson and Charles J. Cooper hang side by side. Both men headed the office under President Ronald Reagan in the 1980s, with Mr. Cooper succeeding Mr. Olson. Both went on to stellar legal careers on the conservative side of Washington’s divided political universe. |
| On Tuesday, however, they faced off before the Supreme Court on opposite sides of a historic case that could remake the American legal and social landscape. Mr. Olson argued for and Mr. Cooper argued against revising the law’s definition of marriage to accommodate gay and lesbian couples. It was a confrontation that their colleagues in the conservative bar never would have predicted before 2009, when Mr. Olson shocked some friends by teaming up with David Boies, a prominent liberal, to challenge California’s Proposition 8 ballot initiative outlawing same-sex marriage. | On Tuesday, however, they faced off before the Supreme Court on opposite sides of a historic case that could remake the American legal and social landscape. Mr. Olson argued for and Mr. Cooper argued against revising the law’s definition of marriage to accommodate gay and lesbian couples. It was a confrontation that their colleagues in the conservative bar never would have predicted before 2009, when Mr. Olson shocked some friends by teaming up with David Boies, a prominent liberal, to challenge California’s Proposition 8 ballot initiative outlawing same-sex marriage. |
| The nine justices, as is customary, barraged Mr. Olson and Mr. Cooper with questions so fast and varied that neither man had a chance to show off his oratorical skills. But some lawyers who know them both said they found their encounter a tribute to legal advocacy, which even in Washington can sometimes trump party affiliation. | The nine justices, as is customary, barraged Mr. Olson and Mr. Cooper with questions so fast and varied that neither man had a chance to show off his oratorical skills. But some lawyers who know them both said they found their encounter a tribute to legal advocacy, which even in Washington can sometimes trump party affiliation. |
| “It really made me proud to be a lawyer in the United States to see Chuck and Ted — good friends from the same political party — duking it out up there today,” said Theodore J. Boutrous Jr., a lawyer with long Washington experience who is on Mr. Olson’s legal team in the marriage case but has litigated alongside Mr. Cooper in the past. “This is the way to decide legal issues. It made me feel good about the court and the country.” | “It really made me proud to be a lawyer in the United States to see Chuck and Ted — good friends from the same political party — duking it out up there today,” said Theodore J. Boutrous Jr., a lawyer with long Washington experience who is on Mr. Olson’s legal team in the marriage case but has litigated alongside Mr. Cooper in the past. “This is the way to decide legal issues. It made me feel good about the court and the country.” |
| Mr. Olson has spoken of being shunned by conservative friends who felt betrayed by his public embrace of the gay marriage cause — and by his unexpected alliance with Mr. Boies, whom he opposed in the presidential showdown of Bush v. Gore in 2000. | Mr. Olson has spoken of being shunned by conservative friends who felt betrayed by his public embrace of the gay marriage cause — and by his unexpected alliance with Mr. Boies, whom he opposed in the presidential showdown of Bush v. Gore in 2000. |
| But Mr. Olson, 72, has a strong libertarian streak. When he prominently battled affirmative action, he said in 2009, he saw himself as combating the same discrimination by the government that he opposes in state bans on gay marriage. Addressing the court on Tuesday, he said that marriage is a “personal right,” not “society’s right,” and is “part of the right of privacy, association, liberty and the pursuit of happiness.” | But Mr. Olson, 72, has a strong libertarian streak. When he prominently battled affirmative action, he said in 2009, he saw himself as combating the same discrimination by the government that he opposes in state bans on gay marriage. Addressing the court on Tuesday, he said that marriage is a “personal right,” not “society’s right,” and is “part of the right of privacy, association, liberty and the pursuit of happiness.” |
| Mr. Cooper, 61, is a more traditional conservative and has described himself as an “originalist,” arguing for the letter of the law and the original meaning of the Constitution. On Tuesday he argued against tampering with “this age-old bedrock social institution” of marriage. | Mr. Cooper, 61, is a more traditional conservative and has described himself as an “originalist,” arguing for the letter of the law and the original meaning of the Constitution. On Tuesday he argued against tampering with “this age-old bedrock social institution” of marriage. |
| Even in the four years since the legal challenge to Proposition 8 began, the tide of public opinion has turned significantly in favor of gay marriage. More and more Republicans, following the example of former Vice President Dick Cheney, have acknowledged gay family members and said they deserve the same rights as heterosexuals. Many young conservatives, like their peers on the left, take as a given the right of gays and lesbians to marry. | Even in the four years since the legal challenge to Proposition 8 began, the tide of public opinion has turned significantly in favor of gay marriage. More and more Republicans, following the example of former Vice President Dick Cheney, have acknowledged gay family members and said they deserve the same rights as heterosexuals. Many young conservatives, like their peers on the left, take as a given the right of gays and lesbians to marry. |
| In fact, arguing the same case in 2009 before the United States District Court in San Francisco, when Judge Vaughn R. Walker asked Mr. Cooper what harm would be done were gay men and lesbians allowed to marry, Mr. Cooper responded, “Your Honor, my answer is: I don’t know. I don’t know.” Perhaps with those shifting public mores in mind, Mr. Cooper chose on Tuesday not to make a frontal assault on gay unions, modestly arguing instead that the court should not pre-empt what he called “an earnest debate” over the proper limits of marriage. | In fact, arguing the same case in 2009 before the United States District Court in San Francisco, when Judge Vaughn R. Walker asked Mr. Cooper what harm would be done were gay men and lesbians allowed to marry, Mr. Cooper responded, “Your Honor, my answer is: I don’t know. I don’t know.” Perhaps with those shifting public mores in mind, Mr. Cooper chose on Tuesday not to make a frontal assault on gay unions, modestly arguing instead that the court should not pre-empt what he called “an earnest debate” over the proper limits of marriage. |
| Mr. Olson evidently thought he could afford to be more direct. When Justice Antonin Scalia asked when, exactly, it became unconstitutional to exclude gay men and lesbians from marriage, Mr. Olson’s reply was not deferential. “May I answer this in the form of a rhetorical question?” he asked. “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” | Mr. Olson evidently thought he could afford to be more direct. When Justice Antonin Scalia asked when, exactly, it became unconstitutional to exclude gay men and lesbians from marriage, Mr. Olson’s reply was not deferential. “May I answer this in the form of a rhetorical question?” he asked. “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” |
| Born in Chicago, Mr. Olson grew up in the San Francisco Bay Area and went to Boalt Hall law school at the University of California, Berkeley. He made partner in a Los Angeles law firm before joining the Reagan administration’s Justice Department and has long been a leader in the conservative Federalist Society. Among many notable clients was Jonathan Jay Pollard, who was convicted of selling secrets to Israel and sentenced to life in prison in 1987. | Born in Chicago, Mr. Olson grew up in the San Francisco Bay Area and went to Boalt Hall law school at the University of California, Berkeley. He made partner in a Los Angeles law firm before joining the Reagan administration’s Justice Department and has long been a leader in the conservative Federalist Society. Among many notable clients was Jonathan Jay Pollard, who was convicted of selling secrets to Israel and sentenced to life in prison in 1987. |
| As the solicitor general for President George W. Bush from 2001 to 2004, Mr. Olson often defended that administration’s sweeping assertions of power to take on terrorism. He was himself poignantly associated with the Sept. 11, 2001, attacks. His wife, Barbara, a lawyer and outspoken conservative television commentator, called her husband twice from the hijacked American Airlines Flight 77 before it hit the Pentagon. (In 2006, he married Lady Booth, a tax lawyer and lifelong Democrat.) | As the solicitor general for President George W. Bush from 2001 to 2004, Mr. Olson often defended that administration’s sweeping assertions of power to take on terrorism. He was himself poignantly associated with the Sept. 11, 2001, attacks. His wife, Barbara, a lawyer and outspoken conservative television commentator, called her husband twice from the hijacked American Airlines Flight 77 before it hit the Pentagon. (In 2006, he married Lady Booth, a tax lawyer and lifelong Democrat.) |
| Mr. Cooper, born in Dayton, Ohio, attended law school at the University of Alabama and was a law clerk to Justice William H. Rehnquist, later the chief justice. He worked in the Reagan Justice Department’s civil rights division before succeeding Mr. Olson as the assistant attorney general in charge of the Office of Legal Counsel, the powerful arbiter of the government’s interpretation of the law. | Mr. Cooper, born in Dayton, Ohio, attended law school at the University of Alabama and was a law clerk to Justice William H. Rehnquist, later the chief justice. He worked in the Reagan Justice Department’s civil rights division before succeeding Mr. Olson as the assistant attorney general in charge of the Office of Legal Counsel, the powerful arbiter of the government’s interpretation of the law. |
| He was a partner in two Washington firms before founding his current firm, Cooper & Kirk. He represented Duke University lacrosse players falsely accused of rape and their teammates in a lawsuit against Duke and the City of Durham, N.C. | He was a partner in two Washington firms before founding his current firm, Cooper & Kirk. He represented Duke University lacrosse players falsely accused of rape and their teammates in a lawsuit against Duke and the City of Durham, N.C. |
| Mr. Cooper has generally maintained a lower profile than Mr. Olson. While he has played to the public in some high-profile cases, including the Duke lawsuit, he has routinely turned down interview requests about the marriage case. Colleagues describe him as a meticulous, cautious lawyer with a formal style. | Mr. Cooper has generally maintained a lower profile than Mr. Olson. While he has played to the public in some high-profile cases, including the Duke lawsuit, he has routinely turned down interview requests about the marriage case. Colleagues describe him as a meticulous, cautious lawyer with a formal style. |
| Back in 1987, when he testified to Congress on the Iran-contra scandal, the columnist Mary McGrory wrote in The Washington Post, “Cooper speaks in a kind of Victorian copybook prose, ever seeking the elegant variation for the blunt.” | Back in 1987, when he testified to Congress on the Iran-contra scandal, the columnist Mary McGrory wrote in The Washington Post, “Cooper speaks in a kind of Victorian copybook prose, ever seeking the elegant variation for the blunt.” |
| In his argument on Tuesday, the cautious lawyer in effect urged caution on the court. | In his argument on Tuesday, the cautious lawyer in effect urged caution on the court. |
| Addressing Justice Anthony M. Kennedy, Mr. Cooper said that it would “hardly be irrational” for a California voter to conclude that same-sex marriage is so new and untested that the state should “hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.” | Addressing Justice Anthony M. Kennedy, Mr. Cooper said that it would “hardly be irrational” for a California voter to conclude that same-sex marriage is so new and untested that the state should “hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.” |
Kitty Bennett contributed research. | Kitty Bennett contributed research. |
| This article has been revised to reflect the following correction: | This article has been revised to reflect the following correction: |
| Correction: March 29, 2013 | |
An article | An article about two conservative Republican lawyers who argued opposite sides of the Proposition 8 Supreme Court case on gay marriage misspelled the surname of a lawyer who has litigated with both of them in the past. And a correction in this space on Thursday misstated, in some copies, the day the article was published. The lawyer is Theodore J. Boutrous Jr., not Boutros, and the article appeared on Wednesday, not on Tuesday. |