A (Federal) Case for Marriage

As an all-star legal team mounts an ambitious federal challenge to California's Proposition 8, the future of national marriage equality weighs heavily on its shoulders.

BY Andrew Gumbel

July 06 2009 12:00 AM ET

Social movements are often made of strange bedfellows. Just ask Chad Griffin, the Los Angeles-based political consultant and an emerging gay rights activist.

At 36, Griffin is the main instigator behind a high-profile and contentious federal lawsuit to overturn California's Proposition 8. The suit was filed in May on behalf of a gay male couple in Burbank and a lesbian couple in Berkeley who were denied marriage licenses.

Griffin's stated goal -- to establish national marriage equality -- mirrors that of gay organizations that have laid the intensive groundwork through years of legal battles, political campaigns, and lobbying of state and federal regulatory agencies. But by attempting to step into federal court, Griffin departs from a long-standing state-by-state strategy for marriage rights. And he's doing so with a man he once regarded as his enemy.

In December 2000, as an unabashed Democratic Party partisan and veteran of the Clinton administration, Griffin sat appalled in Al Gore's living room as the U.S. Supreme Court issued its notorious ruling to end the recount of presidential election ballots in Florida, thus handing George W. Bush the keys to the White House.

A particular target of his indignation was Theodore B. Olson, perhaps the nation's most prominent conservative lawyer, who argued the Bush campaign's case before the nine justices. "Until very recently," Griffin says, "if you'd asked me to come up with a list of 10 people in the world who I don't want to meet, Ted Olson would have been on it."

But now, Olson is Griffin's close ally, as co-lead counsel on this Prop. 8 lawsuit along with David Boies, an equally prominent lawyer who argued Bush v. Gore on behalf of the Democrats. "I think it makes complete sense to allow, and in fact encourage, individuals who want to live in a stable, committed relationship. I don't know why we would stigmatize them," Olson tells The Advocate. "There is a category of individuals who believe marriage should only be between men and women, which is an outgrowth of their religious convictions: what they believe the Bible stands for, and the church stands for. I don't quite understand how that identifies itself as conservative."

On paper, Olson is an unlikely proponent of marriage equality. He served as President Bush's solicitor general from 2001 to 2004, argued before the Supreme Court in 1996 against the admission of female cadets to the Virginia Military Institute, and donated to the campaigns of antigay politicians like former U.S. senator Rick Santorum as recently as 2005. But Olson asserts he's also been advocating marriage rights for same-sex couples for at least 10 years, arguing -- as he is doing now in the lawsuit -- that sexual orientation should not be a bar to enjoying the equal protection and due process provisions of the U.S. Constitution. As such, he is proving to be significantly more progressive than President Barack Obama, whose administration in June launched a vigorous legal defense of the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.

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