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

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.

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.

Attorney David Boies xLRG (getty) | ADVOCATE.COM

As olson and boies see it, marriage has been a right enshrined under the U.S. Constitution ever since the Loving v. Virginia ruling in 1967, which upheld the rights of interracial couples. Two more recent cases -- Lawrence v. Texas , which struck down sodomy laws in 2003, and Romer v. Evans , a 1996 U.S. Supreme Court ruling that rejected a Colorado antigay measure -- established the notion that discrimination based on sexual orientation is unconstitutional.

Filing the suit in California brings other advantages, the attorneys say. Since California recognizes domestic partnerships, the precedent for legal validation of same-sex relationships has already been set. It helps too that the state supreme court recognized same-sex marriage before Prop. 8 passed. The estimated 18,000 same-sex couples whose marriages remain valid despite the ballot measure present a manifest anomaly.

On these merits, many legal scholars agree with Olson and Boies. "There's no reasonable argument against marriage equality," says Erwin Chemerinsky, founding dean of the law school at the University of California, Irvine, and a noted constitutional expert. "The arguments are either bigoted or silly."

But Chemerinsky also echoes some of the concerns voiced by many of the gay activists who have fought hard -- and won -- the very state-marriage battles that have created the momentum Olson says his lawsuit needs. They argue that a loss in the Supreme Court could set back marriage equality for a generation, much in the same way that an unfavorable ruling in the 1986 case Bowers v. Hardwick kept sodomy laws on the books in many states for 17 more years. It's also unknown how an unfavorable ruling could affect future state litigation and existing legal protections for gays and lesbians.

Given the risk, organizations like Lambda Legal, the National Center for Lesbian Rights, and the Human Rights Campaign have all warned against the potential danger of federal lawsuits. "Our position has been that a state-based strategy is very important, and that there are important risks in asking the Supreme Court at this time to provide marriage equality to same-sex couples nationwide," says Jennifer Pizer, Lambda's senior counsel and marriage project director. "That has been our view in the recent past, and it remains our view today."

Michael Dorf, a constitutional law expert and a Cornell University law professor, is similarly wary. "I think the [arguments] are very strong, but I've thought that for a long time," he says. "The fact that a liberal law professor with nothing to lose says, 'Of course there's a constitutional argument for same-sex marriage,' is entirely predictable. The question is how it will play out in federal court."

1 PIXEL GIF | ADVOCATE.COM

Supporters of Olson and Boies, for their part, say that a federal suit was inevitable. It's therefore much better to file one with top-drawer lawyers and a rock-solid argument than a lesser one with a much higher risk of failure. In fact, the Obama administration in June moved to dismiss an earlier federal case filed in California by an Orange County gay couple who were married before Prop. 8 went into effect. Olson's clients were denied the right to marry, and thus have a separate legal argument.

"There is no way that the LGBT legal and political establishment could prevent somebody eventually from filing a lawsuit that would wend its way to the Supreme Court," says Courage Campaign founder Rick Jacobs, who supports the suit brought by Olson and Boies.

Prop. 8 defenders are furiously downplaying the impact of the Olson-Boies suit. "We've seen challenges to California's marriage laws before. This is just another one," says Jim Campbell, an attorney with the conservative legal group Alliance Defense Fund. The ADF has already filed a motion to argue the pro-Prop. 8 side in this case. Gov. Arnold Schwarzenegger has declined to defend the ballot measure in federal court.

At press time, Judge Vaughn Walker of the Northern District of California was scheduled on July 2 to hear arguments for and against issuing a temporary injunction against Prop. 8. That would be only the first step in a battle that could last at least two years as it moves from district court to the ninth circuit court of appeals to the Supreme Court.

If the Supreme Court takes the case, it will likely end in a 5-4 decision, with Justice Anthony Kennedy issuing the deciding vote, Chemerinsky says. This assumes that the broad political makeup of the court remains the same in the coming years -- the most likely, but not the only possible, scenario.

Kennedy is an interesting justice to hold this particular issue in his hands. The Olson-Boies team takes heart from the fact that he wrote the majority opinion in both the Lawrence and Romer cases. He also has spoken out about the need for judicial thinking on social issues to evolve with the times.

Griffin, meanwhile, asserts that the team he has created is ready for any opposing legal arguments before them. "This is a human rights and a civil rights issue," Griffin says. "It matters to everyone, gay or straight. In a certain sense it is nonpartisan -- discrimination and bigotry know no partisan lines."

1 PIXEL GIF | ADVOCATE.COM

Prop 8 map x555 (screen shoot) | advocate.com

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