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 05 2009 11:00 PM ET

THEODORE B. OLSON XLRG (GETTY) | ADVOCATE.COM

Success at the federal level requires more than just a sound legal argument, Olson contends. In this instance, it's also about capitalizing on a watershed moment of shifting public opinion. "The political environment is exceedingly important," he says. "Judges make their decisions breathing the same air as the rest of us, and they are affected, subliminally or directly, by the political decisions that surround us. The more individuals join with us and say, 'This is discrimination, it is inequality, and it needs to be changed'… in an intangible way, I believe it helps us win the Supreme Court argument."

In the past year alone, marriage equality has been realized in Connecticut, Iowa, Maine, Vermont, and New Hampshire. At the same time, the number of states explicitly defining marriage as a union between a man and a woman has increased to 30. This is a war with many fronts, and it has never been fought more furiously than now.

Griffin, whose consultancy practice has battled against oil and tobacco companies, began contemplating a federal lawsuit from the moment he realized Prop. 8 was headed to victory in November ("The biggest gut-punch I've ever had in my life," he says). He had worked on the "No on 8" campaign and, in its final three weeks, produced a rapid-fire series of TV ads to shore up steadily falling poll numbers. The campaign was enough to tighten the race, but not enough to win.

Within days of the election, Griffin heard from a "friend of a friend" that Olson might be interested in helping overturn the ballot measure. Shortly after, he took what he described as a "surreal train ride" from New York to Washington, D.C., to meet the infamous lawyer face-to-face at his offices. The encounter remained top secret for months -- Griffin was determined not to leak any of his plans to the media.

It was Olson who suggested bringing Boies on board to create a bipartisan legal team, presenting the federal courts with what Griffin sees as an irresistible duo. Boies, founder of the New York-based law firm Boies, Schiller & Flexner, was more likely to have the ears of the liberals on the court, while Olson commands the respect of the conservatives. In fact, he knows many of those conservatives personally. Justice

Antonin Scalia's son once worked for Olson's law firm, Gibson, Dunn & Crutcher. Chief Justice John Roberts has been a guest at Olson's home, while Justice Clarence Thomas attended Olson's 1996 wedding to conservative commentator Barbara Olson, who died in the September 11, 2001, attack on the Pentagon. (Olson remarried in 2006.)

The fact that these two attorneys seem far from being gay rights activists is part of what makes them so compelling, Griffin argues. Both can make a persuasive case that the principles at stake touch on core American values that reach far beyond the LGBT community, or, for that matter, any of the usual divisions and fault lines in American politics. "This is about bringing people along who are not currently with us," Griffin says.

To fund the lawsuit, Griffin established the American Foundation for Equal Rights, a nonprofit dedicated to marriage equality. The group is composed largely of Hollywood power players: Director Rob Reiner, for whom Griffin worked in the 1990s, is on the board of directors, as are Milk coproducer Bruce Cohen and screenwriter Dustin Lance Black. Rather than hiring the lawyers pro bono, Griffin says he decided the attorneys would work more effectively if they were fully paid. For its part, Olson's firm softened the blow of what is likely to be a long, expensive fight by making a large donation (the exact figure has not been disclosed) to the foundation.

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