After battling each other in an epic U.S. Supreme Court case that changed the course of American history, Theodore B. Olson and David Boies are at it again—this time on the same side.
The attorneys in Bush v. Gore, which resolved the 2000 presidential election, Olson (Bush’s lawyer) and Boies (Gore’s) are together representing two gay couples in a federal suit that seeks to overturn Proposition 8, the voter initiative approved in November that amended the California constitution to outlaw same-sex marriage.
In May, the pair filed Perry v. Schwarzenegger in federal court in San Francisco, claiming that Proposition 8 violates the U.S. Constitution’s due process and equal protection guarantees.
Yet despite their litigation credentials and high profile, not everyone is happy about the lawsuit, least of all advocates of same-sex marriage. Leaders of that movement have long agreed on a deliberate, state-by-state accumulation of civil rights.
“Here, you have two big-shot lawyers trying to put their own imprint on this,” says Loyola Los Angeles law professor Richard Hasen. “It could have payoff,” but, says Hasen, an election law expert, if the Supreme Court shoots it down, “it could blow up in their faces. … The Roberts court is not the Warren court.”
THE FIRST STEP
Nor were some observers confident that the federal case would go to trial. But in late June, U.S. District Judge Vaughn Walker issued an order to move “directly and expeditiously” to trial. Walker allowed Prop 8 proponents to intervene, but declined to dismiss a preliminary injunction that bans same-sex marriages.
At a hearing in early July, Walker told a packed courtroom that he anticipated an airtight trial and was “reasonably sure” that the case was “only touching down” in his court as “a prelude to what happens later,” according to published reports.
“How we do things here is more important than what we do,” Walker reportedly told the courtroom.
Back in May 2008, the California Supreme Court held that the state’s constitution allowed gay couples to wed. In response, voters approved Proposition 8 that November. Six months later, this May, the California Supreme Court rejected a state constitutional challenge to the initiative, thereby preserving the same-sex marriage ban.
To gay rights advocates who’ve been fighting the same-sex marriage battle for decades, Boies and Olson are considered interlopers.
“This is not a court that leaps to defend full constitutional equality of gay people,” wrote Yale Law School professor William N. Eskridge Jr. in an essay in the online journal Slate.
Citing “long odds against success,” Eskridge and his co-author, New York City attorney Darren Spedale, described the Boies-Olson case as “a brash, bold move to nationalize marriage equality and raise the stakes of the debate. … This is not the moment for federal judges to step in and close off discussion. Why not continue with the state-by-state process of debate, experimentation, and slow but increasing movement toward marriage equality?”
Some have suggested that Olson, a conservative with ties to the Federalist Society, perhaps wants the plaintiffs’ claim to fail before the Supreme Court, establishing a bad ruling that will not only stall gay rights but set the movement back.
“It’s hard for me to take that seriously,” Olson says. “In 45 years of law practice, no one has ever thought I took on a case in order to fail. And you wouldn’t have brought in David Boies to be your partner if you wanted to fail.”
Though he characterizes himself as a conservative, Olson says this is “not an issue for liberals or conservatives to own. It’s a matter of human rights and dignity and equality.” Boies, the Armonk, N.Y.-based chairman of Boies, Schiller & Flexner, didn’t respond to requests for an interview.
Still, gay rights advocates are get- ting edgy. Leaders of several organizations, including Lambda Legal, Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights and the American Civil Liberties Union, issued a joint statement about the case stating, in part, “The U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states.”
Those groups encourage members to be patient as state-by-state battles are fought, beginning in those with the best odds of winning: Connecticut, Iowa, Maine, Massachusetts and Vermont, the five that recognize gay marriage.
The hope is that federal courts extend the rights the states have already started, says Thomas Keck, a professor of constitutional law and politics at Syracuse University.
Drawing an analogy to the school desegregation strategy, Keck says, “Thurgood Marshall started his cases with law schools, something judges were familiar with—they weren’t making decisions about 6-year-olds. Marshall won those cases and eventually moved on to elementary schools.”
Similarly, gay rights activists have deliberately avoided federal suits, especially after their “very real history” with failure, he says. “In the 1980s, they challenged criminal sodomy laws and thought they had a great case,” Keck says. “But they lost at the Supreme Court. It created widespread problems for the LGBT community: They lost custody of children, and employers were suddenly justified in firing gays because they were ‘felons.’ ”
But Olson says federal court is appropriate. “How can you tell people that they should go back home and wait? And no one says for how long. Why shouldn’t we stand up and fight for constitutional rights?”
For his part, Washington, D.C., attorney Charles Cooper, who represents the official proponents of Prop 8, says he’s not willing to discuss substantive arguments in the press before making them in court. He did say, though, that if the plaintiffs’ claim succeeds, “it would sweep away not only Prop 8 but similar constitutional provisions regarding marriage in other states.”
The case now poses a strategic dilemma for gay rights leaders, Keck says. “Do they jump in and help out? Or try to get the case dismissed so the issue is delayed until public opinion shifts, Obama appoints more liberal judges and more states legalize same-sex marriage? It’s a classic dilemma of social movement litigation. Leaders develop careful strategies, but they don’t have total control. It can cause headaches.”
Gay & Lesbian Advocates & Defenders is pursuing one federal constitutional challenge in Massachusetts, where, unlike California, same-sex marriage is already legal.
It argues that the federal government unconstitutionally refuses to recognize perfectly legal marriages. As a result, “that case has more limited implications. It’s an effort by leaders of the movement to be more incremental,” Keck explains. “The California case is a much more sweeping request.”
THE KENNEDY QUESTION
If the Boies-Olson plaintiffs are crossing their fingers that Justice Anthony M. Kennedy, a frequent swing voter, will uphold same-sex marriage if the case gets to the Supreme Court, they may be disappointed. Kennedy is the author of the 2003 decision in Lawrence v. Texas, which struck down a Texas law that prohibited gay sex.
“Kennedy is not always predictable,” Keck says. “He can be quite conservative. It’s a risk.”
Even if Kennedy is inclined to support gay marriage, he may still uphold Prop 8 simply to avoid a populist backlash, says Columbia Law School professor Nathaniel Persily, an expert on voting rights and public opinion.
“If the Supreme Court finds in favor of the plaintiffs, it could polarize the population or create a backlash akin to Roe v. Wade,” Persily says. “The trajectory of popular support will be stultified—even if they win.
So Kennedy may beg off until there’s greater consensus,” he says.
That consensus may be just around the corner, Persily says. Attitudes about same-sex marriage have changed dramatically in the last five years. “After an initial backlash, there’s been a steep trajectory in support since 2004,” he says. “Within five years, if not sooner, we’ll see a majority in favor of same-sex marriage. The minute voters get a chance to overturn Prop 8, they will.”
In the meantime, the question is whether the new federal case will do far more harm than good. “It could establish a legal rule that will not grant gay couples the equal rights they’re seeking,” Persily says. “Then it’s a missed opportunity. If only they had waited for more Supreme Court appointments.”