Editor’s Note: Monday, October 6, 2014, the first day of the Supreme Court’s term, brought a surprise turn of events: the Court declined to review any of the three pending lower court decisions that ruled states could not, as a matter of due process, exclude same sex couples from marriage. By letting these cases stand without reviewing them, the Court permitted same sex marriages to proceed in five additional states (Virginia, Utah, Oklahoma, Indiana, and Wisconsin), bringing the number of states recognizing gay marriage to a total of 32. Once again, those seeking (in the words of the books reviewed in LARB in August of this year) to “Redeem the Dream” or “Force the Spring” of marriage equality have won a technical knockout: the Supreme Court has still not squarely ruled on the constitutional issue of whether states are forbidden to exclude same sex couples from the right to marry. Is the Court waiting until same sex marriage is a fait accompli in most states before head-on taking up the question? Or did the conservatives of the Court fear they didn’t have the votes to overturn? In August this reviewer predicted “the big constitutional issue — whether a state’s denying same-sex partners the right to marry is unconstitutional — will soon unavoidably find its way to the Supreme Court.” Now it seems the Spring many have dreamed for will be delayed.
— Legal Affairs Editor Don Franzen
JUNE 26 LAST YEAR, on the last day of its session, the United States Supreme Court released two momentous and long-awaited decisions. In United States v. Windsor, it ruled by a 5 to 4 majority that the Defense of Marriage Act (DOMA, for short), which forbid the federal government from recognizing same-sex marriages, was a violation of equal protection; and in Hollingsworth v. Perry, also by a 5 to 4 majority, the court let stand the decision of the Ninth Circuit Court of Appeals affirming a trial court ruling overturning Proposition 8, California’s ban on same-sex marriage. Just like that, overnight, in a dream come true for the gay rights movement, same-sex marriages resumed in California and same-sex spouses enjoyed all the benefits and privileges of traditional heterosexual couples under federal law.
The first anniversary of these decisions has just passed, but not before two books appeared, both promising the “inside” story of how the Gay Spring of 2013 was won. One of them, Redeeming the Dream, is quite literally an insider account, written by the two lawyers who headed up the constitutional challenge to Proposition 8. An odd couple they were: Theodore Olson, prominent conservative litigator, card-carrying member of the Federalist Society, and lead counsel in the Bush v. Gore case that installed G.W. Bush in the White House, paired with David Boies, left-wing legal gladiator, lifelong Democrat, and Olson’s unlucky opponent in Bush v. Gore. The other book, Forcing the Spring, is the work of Jo Becker, a Pulitzer Prize–winning journalist, who, though not a working member, was “embedded” (her word) within the team challenging Proposition 8. Her request to have similar access to the legal team defending Proposition 8 was turned down.
The two books recount much of the same narrative. November 2008 was the best and worst of times for the gay rights movement. An African American who cautiously supported gay rights had taken the White House on the same day that a majority of Californians reversed the decision of that state’s Supreme Court holding that the state’s prohibition of same-sex marriage violated equal protection of the law.
What comes next reads like an implausible screenplay of a Hollywood movie. Chad Griffin, a gay rights activist and film publicist, together with Rob and Michele Reiner, Hollywood royalty, resolve to challenge Proposition 8 in the courts. On the suggestion of an acquaintance, Griffin reaches out to archconservative Olson, who is surprisingly sympathetic and accepts the case. With the financial backing of celebrities recruited by Griffin and the Reiners, Olson and his prestigious white-collar firm, Gibson, Dunn & Crutcher, are retained; Olson in turn reaches out to his nemesis and colleague from Bush v. Gore, Boies, to complete a Left-Right Dream Team. Two same-sex couples agree to be the plaintiffs in the case that would be filed in the Federal District Court of San Francisco, Perry v. Schwarzenegger (eventually, when heard in the Supreme Court, entitled Hollingsworth v. Perry).
After a full trial, District Court Judge Vaughn Walker rules that Proposition 8 is a violation of the fundamental right to marry and strikes it down as unconstitutional. The proponents of Proposition 8 appeal (in a twist that would prove crucial, the State of California, under then-Governor Schwarzenegger, does not), and the trial court decision is eventually upheld by the Ninth Circuit appeals court, but on the more limited theory that the right to marry, once granted by the state’s Supreme Court, could not be taken away without violating equal protection.
While the Proposition 8 drama thus unfolded, another case, United States v. Windsor, challenging the constitutionality of DOMA, was working its way through the courts. Edie Windsor was legally married to her life partner, Thea, but despite this, was obliged to pay $363,000 in estate taxes because DOMA prevented the federal government from recognizing their marriage. Had Windsor been married to a man, the estate would have passed to her tax free.
These two legal comets aligned, and in 2012 the US Supreme Court voted to accept both for review, setting the stage for last year’s gay rights’ two home runs — the overthrowing of DOMA and the affirming of the trial court’s decision voiding Proposition 8.
The two books diverge in some interesting ways. Olson and Boies omit reference to any tensions within their team — rather, the two lawyers appear to be competing for the distinction of who can most fulsomely complement the other, a serial “anything I can do, you can do better.” Olson’s oral arguments, according to Boies, were incisive and cogent: Olson “dismantl[ed] [his opposing counsel’s] arguments like an expert shooter hitting one clay pigeon after another.” Boies’s cross-examination of adverse witnesses, according to Olson, was consistently brilliant and devastating — “David’s cross-examination skillfully painted a picture with our opponent’s brush that would live permanently as an endorsement of marriage equality.”
Becker, though, reveals that the marriage of Olson and Boies may not have been quite so heavenly at first. Boies was not, according to Becker, Olson’s first or even his second choice for co-chairing the legal attack on Proposition 8. Becker also reveals the financial arrangements of each law firm (not mentioned by either Olson or Boies): Olson’s firm handled the case for a “reduced” fee of around $5.6 million while Boies eventually donated back most of his retainer, initially quoted at just $250,000. (The money raised and spent on this case would prove to be a matter of controversy for some in the gay rights movement, who were accustomed to such cases being handled pro bono.)
Becker also explores some fundamental differences between the two lead counsels. Boies, a trial lawyer to the core, relished the opportunity granted by the trial judge to “prove” by evidence that the state had no legitimate interest in banning same-sex marriages. Olson, more the appellate jurist, saw the case more as an exercise in pure law: the logical extension of prior court decisions, principally Lawrence v. Texas, holding that the state had no legitimate interest in criminalizing sodomy, and Loving v. Virginia, holding that marriage was a fundamental right under the constitution. Olson even asked Charles Cooper, lead counsel for the Proposition 8 defense team, to shorten the trial by agreeing to stipulate to certain facts in order to set up the case for a ruling on the law. In part because of her concerns over Olson’s strategy, Terry Stewart, San Francisco’s City Attorney, convinced the mayor that the City should seek to intervene (that is, be added as a party) in the Proposition 8 case. The trial court granted the City’s request over the opposition of Olson and Boies.
Tensions existed also within the gay rights movement. The Olson/Boies team was greeted with suspicion (principally because of Olson’s Republican credentials) by many in the gay rights community, and the entire strategy of mounting a head-on constitutional challenge to Proposition 8 was considered risky by some, who feared it might result in a disastrous setback in the Supreme Court. Lambda, a leading gay rights legal advocacy organization, and others, advocated a gradualist, state-by-state approach, but Olson, according to Becker, wanted to go for a home run and secure a sweeping constitutional ruling instead.
Reservations over the Olson/Boies strategy seemed misplaced when Judge Walker awarded them a decision broadly upholding a same-sex right to marry, but this victory was followed by a tortured appellate battle in the Ninth Circuit Court of Appeals. Belatedly, the Proposition 8 defenders sought to invalidate the trial court ruling on the grounds Judge Walker was himself gay — a fact known to all concerned at the time of the trial. (This motion was denied.) Unsure if they even had a proper appeal before them, the appellate panel referred an issue back to the California Supreme Court to answer the question of whether the group supporting Proposition 8 had legal standing to appeal the trial court’s decision. (The State of California, first under Schwarzenegger, and then under Brown, had declined to appeal.) The California Supreme Court answered “yes,” and the case then made its way back to the Ninth Circuit for a ruling on the merits.
It was here, as revealed far more in Becker than in Olson/Boies that differences between the Olson/Boies legal team and the intervenor City of San Francisco came to the fore. Olson, arguing for the Proposition 8 plaintiffs, urged the court to create a constitutional right to same-sex marriage; Stewart, arguing for the City, stressed a more California-specific argument: that since the state had granted gays the privileges of marriage in all ways but in name (i.e., the word “marriage”), there could be no legitimate state interest in denying its gay citizens the status of “marriage.” In the end, the Ninth Circuit adopted another and more narrow approach than Olson had hoped for. Proposition 8, the panel ruled, was unconstitutional because it attempted to erase what the State’s Supreme Court had already determined to be a fundamental right — the right to same-sex marriage could not be taken away by state initiative any more than the right to desegregated schools could be taken away by state law once Brown v. Board of Education was decided.
Olson would have another chance at his longed-for constitutional grand slam when the Proposition 8 case, along with the DOMA case, reached the US Supreme Court in March of last year. As it played out, it was the DOMA case that made new law. In a decision written by centrist Justice Kennedy, the Court ruled that the federal government’s refusal to recognize same-sex marriages valid under state law violated equal protection. Edie Windsor did not have to pay an estate tax, after all. In the Proposition 8 case, its challengers were also handed a victory, but on a technicality: the Supreme Court decided the group supporting Proposition 8 lacked legal standing to appeal the Ninth Circuit’s decision — thus letting that decision stand unchallenged. In this way, the court sidestepped the question Olson and Boies hoped to bring before it: whether the state was constitutionally compelled to recognize same-sex marriage. Proposition 8 was unconstitutional, but on the specific facts of the case, and the ruling had no effect beyond California. Olson did not get his home run.
Though stripped of nationwide effect by the technical grounds on which it was finally decided, the Supreme Court’s Proposition 8 ruling made all the difference to same-sex couples in California. Within hours of the ruling becoming final, marriages between same-sex partners resumed — fittingly, among the first to be married were the plaintiffs who challenged Proposition 8. In an ironic twist, the decision also opened the way for a wedding within the family of one of the leading attorneys defending Proposition 8. During the course of the appeal, the daughter of Chuck Cooper, lead counsel of the Proposition 8 defense team, came out to her parents. By agreement, she waited until the case was concluded before wedding her partner.
In the end, the two cases, Perry (Proposition 8) and Windsor (DOMA), complemented each other. The DOMA case allowed the justices to approach the ultimate constitutional question without fully ruling on it. Sweeping language pointing toward a constitutional right to same-sex marriage was to be found in Justice Kennedy’s DOMA decision, and that language would hasten the appellate decisions that have since followed overturning same-sex marriage bans in state after state. The big constitutional issue — whether a state’s denying same-sex partners the right to marry is unconstitutional — will soon unavoidably find its way to the Supreme Court. While their technical win did not quite succeed in “forcing the spring,” Olson, Boies, and their team did go a long way toward “redeeming the dream.” For those who find it ironic that an archconservative led the charge, reflect on Olson’s own explanation of his devotion to the cause:
Marriage is a coming together of two loving individuals to create a family, to seek stability, to work together, to share hopes and dreams, to build an economic unit, to provide mutual support, to help form a community. What could be more conservative than that?