Who “Owns” the Marriage Equality Issue?

Posted on June 9th, 2009 by Katherine Franke

The last several weeks have been busy ones in the battle for marriage equality.  The governors of Maine and New Hampshire signed laws that allowed same sex couples to marry.  California’s Supreme Court upheld the constitutionality of Proposition 8, and we expected the New York State legislature to have a darn good chance of passing a marriage equality bill this session since the measure had already passed the Assembly and was working its way through the Senate – but then things all went haywire in Albany.  All of these efforts were plotted, led, coordinated and largely controlled by lesbian and gay litigation and policy organizations.  GLAD ran the plays in New England, and Lambda Legal, the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, and the National Center for Lesbian Rights all played key roles in picking the plaintiffs, picking the state courts, and picking the state houses where the battles would be fought from Iowa to California to New York.  Almost without exception, the struggle and the strategy to secure marriage rights for same sex couples have been orchestrated by organizations that “belong to” the lesbian and gay community. These groups have held the view that it was best to take a state-by-state approach, working through state courts and state legislatures and staying clear of any federal court or congressional effort to secure marriage rights.

The whole thing took an odd turn the other day however when a newly formed group innocuously called the American Foundation for Equal Rights announced that it had filed a complaint in federal court in northern California challenging the constitutionality of California’s law restricting marriage to different sex couples.   AFER held a press conference on May 27th in which it produced two couples – one lesbian, the other gay – and two high powered and famous lawyers, Ted Olson and David Boies – both straight – who had filed a lawsuit in federal court the week before alleging that the California law violated the U.S. Constitution’s rights to Equal Protection and Substantive Due Process.  The complaint in the case is available here, other papers here.  It appears that AFER was formed exclusively or at least largely for the purpose of bringing this lawsuit.  It’s board, which it revealed in a press release issued several days after the announcement of the lawsuit, is made up, in part, of prominent Los Angeles movie business types/good guys -some of them straight, such as Rob Reiner and his wife Michelle Singer Reiner.

boies-olsonAt the AFER press conference Olson and Boies stated emphatically that the California marriage/domestic partnership system established a separate and unequal regime that discriminated against lesbian and gay couples and denied them “the most fundamental of rights,” the right to marry the person you love.  They noted how they had been on the opposite sides of important litigation – most notably Bush v. Gore – and while Olson was a conservative and Boies a liberal, they both agreed that the U.S. Constitution secures same sex couples the right to marry, and analogized the constitutional harm here to that recognized by the Supreme Court in Loving v. Virginia.

The “mainstream” gay groups were outraged at the filing of this lawsuit, and immediately issued a statement of their own warning that this was not the right time to bring a marriage equality suit in federal court with the aim of taking it all the way to the Supreme Court.  Instead, they argued, the California problem should be resolved at the ballot box next November, and the federal marriage issues should be addressed carefully in GLAD’s “thoughtfully constructed” lawsuit challenging the federal Defense of Marriage Act.

Matt Coles, director of the ACLU’s LGBT Project, commented sarcastically in the New York Times : “It’s not something that didn’t occur to us. Federal court? Wow. Never thought of that.”

So what should we make of this new organization and its celebrity lawyers jumping into this issue with a risky strategy all Johnny Come Lately?  It’s not like straight people can’t understand the issue – after all, the lead lawyer at Lambda Legal handling the marriage litigation is heterosexual, and so was the lawyer Lambda hired to argue the issue before the Iowa Supreme Court.  Surely having two VERY prominent and gifted lawyers representing both ends of the political spectrum arguing the AFER case will impress the federal judge to whom the case was assigned, not to mention the Justices of the Supreme Court, who know them well (see below).

So often the lgbt litigation team worries about a case being filed by some inexperienced solo-practitioner who happened to have clients walk in the door and naively filed a case making all the wrong arguments and being way over their heads.  That’s not the issue here.  Olson and Boies aren’t naive, they just came to a different strategic judgment about the wisdom of going into federal court on this issue.

On the other hand, it’s hard to miss the odor of hubris that emanated from the AFER press conference and the dynamic duo’s subsequent discussion of the case in the press.  It’s almost like they’ve taken the view that the lgbt community’s lawyers got the issue started and now it’s time for the serious lawyers to get involved.  Whatever you might say about the arguments made by the movement lawyers – and I’ve been plenty critical of their decisions – you cannot deny that we’ve got very smart and effective lawyers and lawyering at Lambda, the ACLU, GLAD and NCLR.   Boies and Olson’s decision to get in now, and to get in in a way that not only ignores the work of movement lawyers, but flies in the face of their collective judgment, leaves me with a very bad taste.  Their comments betray little sensitivity to the fact that these cases are not only about the two couples they conjured up who want to marry, and are not only about the rightness of their analysis of the rights secured by the Constitution.

“If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally,” Mr. Olson said at the news conference.  “I couldn’t have said it better,” said Mr. Boies, patting Mr. Olson on the back.  But this issue isn’t about the Boies-Olson love-o-meter, it’s about a moment that has grown out of a political movement and that has  a critical ethical relationship to that movement.

What gets me about this lawsuit and the Boies/Olson part of it is the way in which it’s a win/win for them, possibly at the lgbt community’s expense.   Yea, they might win – and then they look like the big straight daddies coming in to save the lgbt community from the ill- advised judgment of it’s own less experienced lawyers.  And if they lose, well, they look all the better for taking on a difficult cause.


Ted and Lady Olson's Wedding

There is no downside for them.  Instead of showing up all Dudley Do-Right to save the day, grandstanding before the cameras about how righteous they are, they could work behind the scenes to persuade their peers, left and right, on this issue.  What I’d really like to see them do is “suspend” their own marriages and urge straight people to go on matrimonial strike until same sex couples gain full equality.  Indeed, both of them seem to LOVE getting married. Olson has been married four times.  His third wife Barbara, as most of us know, was a conservative commentator who was killed when she was a passenger on the hijacked American Airlines Flight 77 that crashed into the Pentagon on September 11, 2001.  He married his fourth wife, Lady Booth, a tax attorney who donated to the Obama campaign, on October 21, 2006 in the presence of many Washington luminaries, including Justices Sandra Day O’Connor and Anthony Kennedy.

Boies has been married three times.  He married his high school sweetheart in college. While studying law at Northwestern after they had divorced, he fell in love with a fellow law student,  Judith Daynard Fillman, who happened to be the wife of one of the law faculty, and both of them transferred to east coast law schools, Judith to Columbia (’65) and David to Yale (’66) and they married three years later.  They later divorced, but Judith Boies remains a partner in the Bois law firm.  He married his third wife, Mary McInnis, in 1982.

I’m the last person to throw stones at people who have fallen in love and committed to more than one person in their adult lives, as these two men have.  But I have little tolerance for straight people who refuse to see or distance themselves from the financial, social and personal value they have gotten out of the institution of marriage as an exclusive club only they can join.

Sure, get involved in the marriage equality movement.  Lend us your expertise, your legal wisdom and your firm and professional resources.  But you can’t have it both ways – marrying early and often and professing a principled objection to the exclusion the institution represents.

Kinda makes you wonder what other clubs they belong to.


  1. oh, and also:

    While the lawyer who argued Lambda’s NY marriage case is heterosexual, the Marriage Project Director is not.

  2. thoughtful post on federal marriage challenge from Katherine Franke. http://bit.ly/gLAz0

  3. I had been waiting for this post! Thanks for so thoughtfully articulating the skepticism I felt when I heard about the Olson/Boies suit. This old dog’s sniffer picked up on “the odor of hubris,” too.

  4. […] Franke has a thoughtful post on her blog, that touches on much of this.   I share  her concern that Olson and Boies are […]

  5. […] no opportunity to keep their case and their own names in the press.  Indeed, some have argued, myself included, that it isn’t clear whose interests are most advanced by this litigation: those of the […]

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