Margaret Talbot was on Fresh Air tonight talking about Perry v. Schwarzenegger. It’s worth listening to if you want to understand the argument for equal marriage rights that could be heard by the United States Supreme Court.

Ted Olson is arguing against California’s Prop 8 and similar state laws that deny marriage rights to gays and lesbians. Olson and partner David Bois will argue such laws violate the Equal Protection Clause in the 14th Amendment to the United States Constitution.

Here’s Olson in Talbot’s New Yorker piece.

“The Loving case was forty-two years ago,” he said, perched on the edge of his chair in the law offices of Gibson, Dunn & Crutcher, in Washington, D.C., where he is a partner. “It’s inconceivable to us these days to say that a couple of a different racial background can’t get married.” Olson wore a brightly striped shirt and a paisley tie, without a jacket; there was something folksy in his speech, which reminded me that he’s a Westerner, who grew up and was educated in Northern California. He said, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been involving a man and a woman,’ when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The Justices of the Supreme Court, Olson said, “are individuals who will consider this seriously, and give it good attention,” and he was optimistic that he could persuade them. (The losing side in San Francisco will likely appeal to the Ninth Circuit, and from there the case could proceed to the Supreme Court.)

Also read Olson’s The Conservative Case For Gay Marriage in Newsweek Jan. 9, 2010