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Special feature: California’s Proposition 8 appeal

Part #1: No one owns the movement

“If you lose before the Supreme Court, this whole program of litigation relying on the 14th Amendment is gone–and we’ve just lost the whole ballgame.” 1953. One faction of the NAACP in the lead up to Brown v. Board of Education

On Monday, December 6, San Francisco police are bracing for record crowds to jam the streets surrounding the United States Court of Appeals for the Ninth Circuit.  For fans of baseball, the appeal of Perry v. Schwarzenegger is sometimes viewed as the crucial eighth inning of a World Series home game. For others, the likelihood that the marriage equality case will be tested before the U.S. Supreme Court next year makes this appeal nothing short of the next momentous step in the modern era’s civil rights movement.

Last week, rounding out the baseball analogy, the umpires of the appeal were announced: the judges will be a liberal, Stephen Reinhardt of Los Angeles; a moderate, Michael Daly Hawkins, of Arizona; and a conservative, Randy Smith, of Idaho.

The stakes in the appeal are high, and so is the caliber of the leading players. Legal all-stars Ted Olson and David Boies filed the federal challenge to voter-approved Prop. 8 in 2009 and will lead Monday’s fight to uphold U.S. District Judge Vaughn Walker’s August 2010  ruling that the same-sex marriage ban was unconstitutional. Once fierce opponents in Bush v. Gore, they are now the media’s celebrated “odd couple,” attempting to do for gay rights what the NAACP Legal Defense Fund did for racial equality.

Meanwhile, LGBT movement lawyers – many of whom for decades have been pivotal in shaping the path toward marriage equality – have taken a supportive role in the challenge.

On the surface, there seems to be no hard feelings about the hierarchy arrangement. After Olson and Boies filed the Perry lawsuit in May 2009, thus wresting control of the fight for gay marriage away from LGBT lawyers and pushing it into the federal arena, some claim prematurely, media accounts told of bruised egos, secrecy, and infighting between the two legal camps.

But a year later, as people I talked to said uniformly, those media reports were “exaggerated and overblown,” and “we are all on the same page,”  “united now to win.”  Instead, the outlook that now prevails in the LGBT legal community arises from a reality inherent in all social justice movements.  “No one ever owns the movement,” explains Jennifer Pizer, Senior Counsel and Marriage Project Director for Lambda Legal. “We constantly deal with the reality that a lot of people in this movement have different ideas about what the goals and strategies should be, and that’s healthy.”

The press conference on May 27, 2009 outside the Biltmore Hotel in Los Angeles had the expected media blitz. Standing behind a bank of news cameras, Ted Olson and David Boies announced to the world that they were leading the trial team in Perry. “I must say that being up here on a platform with Ted Olson and all these lights makes me want to urge everybody to count every vote,” Boies said, drawing laughs.

The news at first stunned many LGBT movement lawyers who had not been consulted or advised about the federal challenge, and who for years had mapped out and gained successes in a more gradual state-by-state legislative strategy. “Who knew that Ted and David cared one bit about the right to marriage for same sex couples?” Kate Kendell of the National Center for Lesbian Rights said at the time. Lambda Legal and other LGBT legal groups issued warnings: “ill-timed law suits can set the fight for marriage back.”

A truth behind the pairing of the legal giants – that David Boies was not Olson’s first choice – has never been made public. Those in the legal community who know the two lawyers whom Olson first approached – one of whom is rumored to have been Paul M. Smith, who successfully argued Lawrence v. Texas, in which the Court struck down the state’s sodomy statute – say their reasons for rejecting Olson’s offer reinforces their position. “The lawyers who were first approached,” says a source close to the Perry case who requested anonymity, “basically agreed that it was premature to bring this case before the Supreme Court because even if it did succeed in wiping away all the state marriage restrictions, that could trigger a federal constitutional amendment.”

Still, no one disputed Boies and Olson’s masterful legal skills, but they had scant understanding of the movement’s complicated legal history. “I understand their frustration,” Olson told me recently. “We have great respect for all those people but we respectfully disagree with their strategy.  What year were they going to be successful in, say, Arkansas? This is a very important civil right to literally millions of people and how long can you ask people to hold on while their constitutional rights are being violated?”

Kendell concedes now that the high-stakes federal challenge “has not developed into a broad consensus, but we are miles ahead and in a much different place in terms of the national discourse and understanding because of this lawsuit than we would have been otherwise.”

The divergence of strategy was actually born a year before the Perry filing, out of a young man’s devastation over the passage of Prop. 8.  On the night of the 2008 election, in a room at San Francisco’s landmark St. Francis hotel, the city’s mayor Gavin Newsom watched the election returns with a group of friends, among them: Bruce Cohen, producer of Milk and American Beauty, and thirty-year-old Chad Griffin, a native of Hope, Arkansas who at the age of nineteen went to work in the Clinton White house, sharpening his partisan political skills at the knee of the Ragin’ Cajun, James Carville.

Closeted the entire time he lived in Arkansas, Griffin says he “lacked the courage, will or ability to accept who I was at that time in my life.”  He moved to Los Angeles in 1991 and with Kristin Schake, opened a communications and political strategy firm that soon gave him access to money and power, with Maria Shriver, director Rob Reiner and HBO among his clients.

On the night of the election, the group monitored the presidential election on the TV, while their laptop screens flashed results of state races. Griffin was particularly invested in the outcome of Prop. 8.  His firm had helped to raise millions of dollars (including $100,000 from Brad Pitt) for the “No on 8” campaign.

In another room at the St. Francis, Kate Kendell and her long-time partner expected to celebrate. “It was a very schizophrenic evening,” Kendell recalls, “because in one room they were broadcasting images of Obama’s victory and we were all elated and at the same time I felt like half my heart was in a vice grip, waiting to see what would happen with Prop. 8, which was still too close to call.”

As the night went on and Prop. 8 passed – with fifty-three percent of the vote – “the vice grip turned to a meat cleaver,” recalls Kendell, “and my partner and I just broke down crying. I felt the same kind of profound grief when I lost my parents and brother.”  In the morning, having barely slept, Kendell had a stark realization: “Gosh, the world is going to go on and I don’t know how that can happen.”

However, the next move was already in the works. NCLR, ACLU, and Lambda Legal would file the challenge they had prepared just in case Prop. 8 won, working together as they had in past litigation about rights for same-sex couples, and fight before the California Supreme Court to overturn the ban.  (That case, Strauss v. Horton, did not defeat Prop. 8, but it did validate the existing marriages of 18,000 same-sex couples.)

Griffin, meanwhile, channeled his grief over the passage of Prop. 8 in another way:  drawing on his brash Cajun political mentoring and influential Hollywood contacts to hatch an aggressive plan that would soon take the fight for gay marriage in a bold but risky new direction.

(Part 2 to follow.)

Recommended Citation: Mary A. Fischer, Special feature: California’s Proposition 8 appeal, SCOTUSblog (Dec. 3, 2010, 11:22 AM),