The Road to Marriage Equality: Boies and Olson’s Wedding March

 

AP Photo/Adam Lau

David Boies kisses fellow lawyer Theodore Olson on the cheek at a public rally on Wednesday, Aug. 4, 2010 in West Hollywood, Calif. Gay rights supporters turned out in droves to celebrate a federal judge's overturning of California's Proposition 8, a same-sex marriage ban, a landmark case which could eventually land before the U.S. Supreme Court to decide if gays have a constitutional right to marry in America.

The history of civil rights for lesbian, gay, bisexual, and transgender (LGBT) Americans took a dramatic turn on June 26, 2013. On that date, the U.S. Supreme Court invalidated the Defense of Marriage Act (DOMA), which since 1996 had defined marriage as being between one man and one woman. The Court also let stand a lower ruling that declared Proposition 8—the 2008 voter referendum outlawing same-sex marriage in California—unconstitutional.

The two legal victories rode momentum that had revved and sputtered ever since the early hours of June 28, 1969, when patrons of the Stonewall Inn in Greenwich Village ushered in the modern gay civil-rights movement by resisting a police raid. Hopes rose with the 1977 election of openly gay Harvey Milk to the San Francisco Board of Supervisors, but his murder a year later dealt a psychological blow. In the 1980s and 1990s, the AIDS crisis brought urgency to the task of seeking equality, while bold tactics by groups like ACT UP and Queer Nation forced the country to listen to a community fighting for its life, and the courage of coming out to gain wider acceptance became a matter of survival.

The 2009 decision by legal titans David Boies and Ted Olson to lead a federal lawsuit, Perry v. Schwarzenegger, to overturn Proposition 8 may be looked back on as a moment when the LGBT civil-rights movement—and the quest for marriage equality in particular—found renewed energy. With Perry v. Schwarzenegger, Boies and Olson pursued a strategy most established LGBT organizations, such as Lambda Legal and Freedom to Marry, and the wealthy donors to OutGiving, the biannual conference that counsels rich gay men and lesbians on their political philanthropy, viewed with suspicion and actively resisted. They preferred to stick with the gradual, state-by-state approach they adopted since a 1993 ruling by the Hawaii Supreme Court declared that it was discriminatory to prohibit marriage licenses for same-sex couples. Intense backlash against the Hawaii decision was what had led to the passage of DOMA and to 31 states banning legal recognition of gay and lesbian couples.

Instead of picking off DOMA state by state, Olson and Boies pursued a national media strategy that placed them and their palpable sense of self-regard at its center as a political odd couple. Odd because the two were best known for their historic Supreme Court clash in Bush v. Gore, which put George W. Bush, Olson’s client, in the White House after the contested 2000 presidential election against Boies’s client, Vice President Al Gore. That Olson is a conservative Republican was viewed as essential to the duo’s effort to change minds on same-sex marriage, not just in law but in the court of public opinion.

The enterprise was as bold as it was risky. Boies and Olson wanted the Supreme Court to rule on a constitutional right for same-sex marriage. In Redeeming the Dream: The Case for Marriage Equality, Boies and Olson express no doubt in their strategy and their ability to get the job done. The perfect illustration of their faith comes early in the book from Boies. “It was essential that the case that was decided first be prepared, tried, and presented on appeal as perfectly as possible,” he writes. “With our experience, and with the unparalleled resources our two firms offered, we were confident that we could prepare, try, and appeal the case as well as, and probably better than, any alternative team.” The LGBT establishment’s fear of adopting such a distant goal was understandable: Failure at the high court could be a setback akin to Bowers v. Hardwick, the devastating 1986 ruling that upheld the constitutionality of state sodomy bans, extending a criminalization of gay sex that would not be overturned until the landmark Lawrence v. Texas decision in 2003.

The team got half of what it wanted. The Court eschewed the push for a blanket constitutional right to marry in favor of allowing same-sex marriage to resume only in California; the proponents of Proposition 8, it said, lacked standing to argue the case before the Supreme Court. Still, Redeeming the Dream is the story of Boies and Olson’s righting a wrong, albeit one told through a subjective lens where their arguments are always sound and their clients and witnesses are beyond reproach.

 

Redeeming the Dream opens with a recounting of how Boies and Olson went from strangers battling each other in court to close friends whose families vacation together. They had a lot in common. Both were born in Illinois. Both moved to California with their parents at an early age, and both “felt deeply that Proposition 8 was wrong and fundamentally at odds with our vision of America, and of our understanding of California and Californians,” Boies and Olson write.

In separate chapters, each explains why he felt compelled to sign on to the case. Olson was brought in by director Rob Reiner, one of Hollywood’s most politically active figures. Proposition 8’s passage at the same time as President Barack Obama’s history-making election had deeply depressed Reiner. Over lunch at the Beverly Hilton a few days later, Reiner and his wife dined with Chad Griffin and Kristina Schake, partners in a public-relations firm who had been part of the failed effort to defeat the anti-gay proposition. It was during this lunch that they hatched the plan to mount a constitutional challenge to Proposition 8. At first rejecting a friend’s suggestion that they reach out to the conservative Olson, Reiner sent Griffin—a former Clinton administration staffer who worked for Reiner after leaving the White House (Griffin has since become head of the Human Rights Campaign, the nation’s largest gay-rights advocacy organization)—to Washington to take Olson’s measure. The meeting between a lion of the Republican Party and the young, openly gay Democrat was surreal for both.

Olson’s and Boies’s respective explanations for taking the case are earnest. Olson, firm in his conservative belief that marriage brings stability to family and communities, writes that he “did not think that the right to marriage should or could constitutionally be withheld from homosexuals. And I could only begin to imagine the hurt, pain, anguish, isolation, and alienation that is created when that relationship is denied to two loving individuals.” For Boies, “It was the easiest decision of my professional life. … The movement to end antigay discrimination is the defining civil rights issue of the first half of the twenty-first century.”

In his chapter, Boies takes the reader on a brisk journey through the history of the LGBT-rights movement. He starts with the formation in 1950s Los Angeles of the Mattachine Society, one of the nation’s first gay-rights groups, moves through Stonewall, Milk’s election, DOMA’s passage, and the revolutionary moment in February 2004 when then-Mayor Gavin Newsom of San Francisco ordered county clerks to issue marriage licenses to same-sex couples. Boies also covers legal cases that awakened his support for marriage equality, and Supreme Court cases that informed his and Olson’s strategy to ensure that a federal challenge get quickly to the high court.

By paying homage to people and events that shaped the LGBT movement, Boies and Olson might inoculate their book against the criticism from writers Andrew Sullivan, Noah Feldman, and others that dogged the April release of Forcing the Spring: Inside the Fight for Marriage Equality by reporter Jo Becker of the New York Times. Becker’s book chronicles the same events, stars the same cast of characters, and features criticism similar to Boies and Olson’s of the LGBT establishment’s incrementalist strategy. But Sullivan, the former editor of The New Republic who made a pioneering call for marriage equality in a 1989 piece for that magazine, and Feldman, a Harvard law professor, criticized Becker for what they view as her complicity in an effort by Boies, Olson, and Griffin not only to marginalize those who have been in the movement for decades, but to take credit for their work. They accused Becker of rewriting the entire history of the decades-long quest for marriage equality. But this is not the book she wrote. Rather, because Becker was embedded with Boies, Olson, Griffin, and the plaintiffs throughout the litigation, hers is an insider’s view of a key case in the movement. The skepticism and harsh reaction to Becker’s book is no different than that showered on Olson and Boies by the LGBT establishment when they began their push for a Supreme Court showdown. The accusation of hogging the limelight leveled against Olson and Boies, on the other hand, is tough to counter.

Where the skepticism of gradualism is expressed in Becker’s account by people like Academy Award-winning Milk screenwriter Dustin Lance Black, activist Cleve Jones, and Griffin, in Redeeming the Dream Olson and Boies speak for themselves. They wanted to move quickly:  A second California Supreme Court case (Strauss v. Horton) challenging Proposition 8 was about to be decided. The decision in that suit, which argued that the change to California’s constitution banning same-sex marriage was done improperly, was expected to uphold Proposition 8. Olson and Boies believed such a ruling would give them the opportunity to challenge the state law in federal court and argue for a right to marriage for same-sex couples under the U.S. Constitution. They wanted to be first because they were concerned that “other lawsuits would only confuse matters without contributing any meaningful benefits.”

Despite opposition to their lawsuit from “many in the gay community, including most of those who had long led the fight for equality,” Boies laid out four reasons the team decided to proceed. They believed they would win. They believed this was the time to push for a constitutional right to marry. They believed the case “would advance the cause of equality and public support for it.” They believed “there was no way that a federal constitutional challenge could be avoided.”

What follows is Olson and Boies’s triumphant version of the events that led to the Supreme Court’s ruling in their case. They explain the creation of the American Foundation for Equal Rights (AFER), an organization that supplied fundraising and communications support behind the case. They recall the quest for two perfect clients, “mature adults with a strong and deep desire to be married” who would be able to “remain together for the three to five years the process would require.” Kris Perry and Sandy Stier (married in 2004 and raising four boys) along with Jeff Zarrillo and Paul Katami (a Burbank couple who came to AFER’s attention after their memorable YouTube response to the pernicious pro-Proposition 8 commercial, “A Gathering Storm”) fit the bill.

Olson and Boies revisit the secretive, suspenseful launch of the suit in San Francisco in 2009 by Enrique Monagas, one of many lawyers on the team. When the clerk commented that “it must be an important filing” since it was coming in so late on the Friday before Memorial Day, “Enrique surreptitiously crossed his fingers and said, ‘I haven’t even read it.’” Monagas was able to sneak a peek at the clerk’s screen to see which judge was picked to take the case: “VRW.” Chief Judge Vaughn R. Walker, a 1987 appointee of President Ronald Reagan whose nomination was initially opposed by Democrats (renominated by George H.W. Bush, he was confirmed in 1989) because of his membership in an all-male athletic club and his work on a case that blocked the use of the word “Olympics” by the Gay Games. Walker would come out publicly after the case’s resolution.

Rather than go for summary judgment, Walker insisted on conducting a trial and asked both sides’ lawyers to submit evidence on 19 specific questions about homosexuality, discrimination, the impact of marriage on gay and straight couples, and raising children. Boies and Olson make it clear that this was a great development for their case. The evidence and testimony compiled during trial in answer to those questions, and the legal record they created, would prove vital to subsequent courts and to the public’s understanding of marriage equality. They liken the benefits of Walker’s move to the famous Scopes trial of 1925 that educated the public on evolution, creationism, and the role of science in public education.

Each played a distinct role as the drama unfolded. Where Boies was the grand inquisitor who tore witnesses apart on cross-examination, Olson was the closer, shaping testimony into a potent argument. Olson and Boies heap praise on the skill and credentials of their opposing counsel Charles Cooper, a conservative luminary and a longtime friend of Olson’s. They then gleefully recount Cooper’s team’s every misstep: how its witnesses fell apart either during pretrial hearings or on the stand and how they succeeded in turning its expert on marriage and children into their best witness on the state ban’s harm to same-sex couples and their families. (They got him to admit that “adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.”)

But it would be an answer from Cooper that, as Boies and Olson write, would “produce one of the most memorable and decisive moments in the case.” When pressed by Judge Walker on what impact same-sex marriage would have on the procreative purpose of opposite-sex marriages, Cooper replied, “Your Honor, my answer is: I don’t know. I don’t know.” That response, which got to the heart of the case for both sides, would haunt Cooper all the way to the Supreme Court.

But do yourself a favor when reading Redeeming the Dream. Have Becker’s Forcing the Spring close by. Reading Boies and Olson, I was struck by how breezy it is compared to the detailed, in-the-room nature of Becker’s recounting. The legal odd couple present events from their victorious point of view, while Becker gives you a wider spectrum of opinions and recollections and a more complete picture of what happened.

For instance, Boies and Olson present the selection of Perry and Stier and Katami and Zarrillo as the lead plaintiffs as a flawless operation. Instead, Becker describes in detail the “mad dash” to find the perfect clients as the clock ticked toward a ruling in Strauss v. Horton. In fact, the “dream couple—a Latina lesbian and her white partner who had been together forever”—backed out of the case. Of Perry and Stier, Becker reveals that Griffin “knew that the couple wasn’t perfect” because Olson didn’t want couples with children and because of concern that Stier’s previous marriage to a man would complicate their argument that being gay was not a choice. “At this late date, they would do,” Becker writes of Griffin’s initial decision to see if Perry wanted to join the federal suit.

In another instance (which I pointed out at PostPartisan on washingtonpost.com), in which Boies and Olson write how happy they were that Walker wanted a trial, Becker writes that Olson “was not initially keen on the idea of a trial.” His goal was to get the case to the Supreme Court. So eager was he to circumvent a trial that, Cooper told Becker, Olson suggested they jointly oppose Walker’s push for one. “We don’t want to have some Scopes Monkey trial here, do we?” Cooper recalled Olson saying.

When Boies and Olson filed their case in May 2009, marriage equality was legal in only Massachusetts, Iowa, and Connecticut. As of this writing, it is legal in 19 states and the District of Columbia, while statutory and state constitutional bans on same-sex marriage have been overturned in Utah, Texas, Oklahoma, Virginia, and Pennsylvania, among others. That there are so many cases on the docket is testament to the state-by-state strategy credited to advocates such as Evan Wolfson, the founder of Freedom to Marry. The number of cases speaks to the DOMA ruling’s power as well. Essentially, that decision, in United States v. Windsor, came down to a tax case: Plaintiff Edith Windsor was legally married to her spouse Thea Spyer. When Spyer died in 2009, Windsor was hit with a $363,053 estate tax because the couple’s marriage was not recognized by the federal government. The nine federal and state judges who have declared state bans on same-sex marriage unconstitutional all cited the Windsor case argued by attorney Roberta Kaplan in her first appearance before the justices. Olson and Boies failed to secure a constitutional right to marry for same-sex couples. Instead, they won because the justices ruled that the proponents of Proposition 8 lacked the legal standing to defend the initiative. Still, it was a historic ruling. As a result of their case, marriage for same-sex couples resumed in California, the nation’s most populous state.

Since the June 2013 rulings on Proposition 8 and on DOMA, the LGBT-rights movement seems to have revved into overdrive. Public support for marriage equality, which inched over 50 percent for the first time two years before the Supreme Court’s hearing of the Proposition 8 case, has jumped to 59 percent, according to the latest Washington Post–ABC News poll. That same poll showed that 50 percent of those surveyed believe that equal protection under the law guaranteed by the U.S. Constitution extends to the right to marry for same-sex couples.

Last September, Boies and Olson joined the Virginia case, known as Bostic v. Rainey, which overturned that state’s same-sex marriage ban in February. This tells me two things. One, after reading Redeeming the Dream, I have no doubt that the case will go to the Supreme Court. Two, the justices will not be able to dodge the question the two men asked them in Perry v. Schwarzenegger: Is there a constitutional right to marry for same-sex couples? Olson and Boies have made the case in court and in their book. All that’s left is for the Supreme Court to rule in the affirmative.

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