Legal Lions Boies and Olson Set Back Gay Marriage
(Corrects spelling of Bill Rubenstein in sixth paragraph.)
Eons ago -- OK, 1996 -- I was a fresh-faced summer associate at the venerable white shoe law firm Davis Polk and Wardwell in New York. As part of their civilizing mission for law students, the firm not only taught us how to drink dry martinis but urged us to adopt a pro bono cause. The most dynamic associate I met happened to be out of the closet, and by his good offices I ended up doing some work that summer for the Marriage Project of the Lambda Legal Defense Fund, run by the pioneering gay-marriage activist Evan Wolfson. At the time, the Hawaii Supreme Court had just become the first court to find that equality required same-sex marriage, and the predecessor to the Defense of Marriage Act was being bandied about in Congress: For an aspiring constitutional lawyer, it was game on.
I thought of Wolfson this week when hearing that Ted Olson and David Boies, lawyers for George W. Bush and Al Gore respectively in the great 2000 recount, were once again trying to attach themselves to gay marriage cases with a good chance of reaching the Supreme Court.
Back in 2010, when the duo managed to become lawyers for the movement challenging California's Proposition 8, they had no history whatever of working for gay rights. They proceeded to win a victory in the U.S. Court of Appeals for the Ninth Circuit, but the Supreme Court dismissed the appeal for lack of standing, most probably because Justice Anthony Kennedy was not ready embrace a general right to gay marriage.
From a lawyer's perspective, this was much worse than shameless headline grabbing. (Disclosure: We kind of admire that.) It was an attempt to steal the glory of arguing the Brown v. Board of Education of gay rights from the lawyers who had spent some 30 years fighting for the cause. It was as if John W. Davis, the former solicitor general and presidential candidate who founded the law firm Davis Polk, had switched sides and represented Brown instead of the Board of Education of Topeka, Kansas, because that side had a better chance of winning.
Of course Olson and Boies had an explanation -- you’d expect nothing less of two of the most distinguished lawyers in the U.S. Their official rationale was that it was every (straight) man's business to see justice done. Their unofficial justification was that if the name of the game was to convince Kennedy that America was ready for gay marriage, nothing could be better than a bipartisan dream team of heterosexual super lawyers.
As it turned out, however, Kennedy couldn't have cared less who was arguing against Proposition 8. Give the man a little credit. He's been shepherding gay rights into American public life since the 1996 case of Romer v. Evans, when he wrote the opinion striking down a Colorado state constitutional amendment that, he said, denied equal protection to gay people. In his way, Kennedy is almost as much a veteran of the gay rights movement as Evan Wolfson. There’s plenty of heroism to go around, like that of my colleague Bill Rubenstein, who, even before Wolfson joined Lambda, started the American Civil Liberty Union’s gay rights project.
What there isn't is room for Olson and Boies, two accomplished, intelligent and perfectly charming people who have lumbered into an extremely sensitive and complex area of legal activism in which they are, frankly, newcomers. Their Proposition 8 efforts substantiate this problem. Judge Stephen Reinhardt of the Ninth Circuit wrote an opinion in the Prop 8 case that was designed to avoid Supreme Court review -- because he himself, a former colleague of Kennedy's and the maestro of pushing the constitutional envelope, judged that the Supreme Court was not quite ready. When the case went before the Supreme Court anyway, Olson and Boies pushed the claim for universal gay rights instead of emphasizing Reinhardt's narrow holding. They had to -- because they were in it for the historic judgment, not to win a one-off case for their clients.
Now, once again, there is a risk that putting Olson and Boies at the helm of litigation could do harm. Perhaps the cases percolating their way to the Supreme Court from Utah and Oklahoma are the next ones that the court will be ready to hear. But Anthony Kennedy should be able to choose the case that he wants, when he wants. The gay marriage activists know this. They are not trying to pressure Kennedy into the decision that they seek and that he has all but promised he will one day provide. The stakes -- for them and the movement they represent -- are too high for that kind of brinksmanship. The marriage activists will let the various cases making their way toward the court proceed at their natural pace, as Thurgood Marshall did when he was ran the NAACP's Legal Defense Fund.
It's great that the cause of equality for gay people has hangers-on. In retrospect, I suppose that as a law student in 1995 I was exactly that. Olson and Boies are among the best general practitioners in the country. But sometimes (by which I mean always) you want to leave brain surgery to the brain surgeons.
(Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)
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