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.

At 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.

Reform of divorce laws in light of the ways in which many women end up much worse off than their ex-husbands after divorce remains a huge problem for those of us concerned about Gender Justice.

But consider the current divorce case in the news of Marie Douglas-David, the 37 year-old woman who in 2002 married George David, a 67 year-old Connecticut executive who has a reported net worth of $329 million.  Prior to the marriage Douglas-Davis was an asset manager at Lazard Asset Management (and, um, a Swedish countess) who quit her job when she married David so that she could travel and entertain with him.

When the relationship hit the rocks after two years (evidently they both had affairs – he with a woman he met at a flower shop and she with a Swedish fencing champion) they entered into a post-nuptial agreement to the effect that upon dissolution of the marriage Marie would receive a $43 million settlement.  According to the Huffington Post, “Douglas-David wants the agreement invalidated. She’s asking to be awarded about $100 million in cash and stock, plus $130,000 a month in alimony.”  She maintains that her essential weekly expenses include $250 for a personal trainer, $700 for limousine services, $4,500 for clothes, $1,000 for hair and skin treatments, $1,500 for restaurants and entertainment, $2,209 for her personal assistant, $1,570 for horse care, $600 for flowers and $8,000 for travel.  In case you missed it, these are expenses per week.  (To be fair, he claims ten times as much in weekly expense: Clothes $2,500, Yacht maintenance $95,943, Eating out $1,773, Travel $7,491, Charities $18,042, Entertainment $7,125, Wife’s residences $67,12.  Who can’t relate to the crushing burden of the weekly “yacht maintenance” bill?  Source for these numbers. )

This case makes me crazy.

When Marie Douglas married George David she seems to have morphed from a competent, even shrewd, investment banker into a vulnerable, defenseless wife who was a victim of her husband’s power and prestige. Her lawyer has argued in court that she thought she was in “a loving, sound marriage” until she found e-mails disclosing an affair between her husband and a younger woman.  Shocking, shocking!  (Oh wait, George had a previous wife with whom he had had three children, and he met Marie when she, a woman less than half his age, invested in George’s business on behalf of Lazard.  Maybe the whole “younger woman-thing” is not so shocking.)

Marie, a woman with a serious, lucrative and successful career, junked it all when she met George, more than twice her age, and became a kept housewife.  In the divorce lawsuit Marie maintains that she shouldn’t be held to the terms of the $43 million post-nup.  Her lawyer argued in his opening statement to the judge that George coerced her to sign it by preying upon her fears of being divorced and childless.  “He put a [figurative] gun to the back of her head.”

Oh please.

These sorts of cases gain lots of media attention and they undermine the problem of equity in divorce cases between regular people whom Weitzman studies in her book, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America.  As a practical matter in most divorces, the less privileged party – usually the wife – walks away impoverished, or substantially less well off, than the more privileged party – usually the husband. This data hasn’t changed substantially since 1985, when she did her research.

When a woman such as Marie Douglas-David quits her job as an investment banker to become a wife – not only in the legal sense, but in the social sense (the servant to David’s professional and social life) – she’s not an absolute victim.  She’s making a choice, and I must add, a bad choice.  She did so at her peril.  There is, as my law & economics colleagues would call it, a moral hazard problem here: to relieve Marie Douglass-David of any responsibility for her own support, because she was, after all, George David’s wife, is to solidify women as the dependents of men.  They are the breadwinners, we are the arm candy and trophy wives.  They belong in the wage labor market, we belong at home with the kids. We are the mommies, they are the masters of the universe.

This isn’t the sort of case where the couple marries young, they make a deal that they’ll invest in his career first, hers second, and then he doesn’t live up the deal and she’s left with a bunch of sunk costs – to borrow again ideas from economists.  Or where they decide that it makes most sense for her to stay home and take care of the kids since, after all, he’s able to earn more given that he’s a man and they only need one wage to live on (a middle class scenario, that leaves out many, many families/couples that can’t afford to live on one wage).

No.  This was a woman, a countess even, who had a very lucrative career when she met her husband, indeed met her future husband, a client, at the office.

The lesson from the Douglas-David divorce: why would any woman want to be a wife?  You become a withered simalcrum of your former independent agentic self: unable to support yourself, vulnerable given your dependency on your husband’s wealth and support, and somehow exploitable by the prospect of being “divorced and childless.”

How can we avoid the even worse message this case delivers: What really is the difference between cashing out two years of marriage to a mogul as legalized prostitution?  How can we make a principled distinction between what she’s demanding and front pay?

Remind me why any woman would want to be a wife?

- Katherine Franke