Sunday, May 31, 2009

Ted Olson and David Boies Are Either: Ignorant About Gay Rights Litigation, Trying to Sabotage Same-Sex Marriage, Or Are Arrogant Heterosexuals

Theodore Olson and David Boies -- the prominent opposing lawyers in Bush v. Gore -- have filed a lawsuit in federal court that challenges California's prohibition of same-sex marriage. Their decision to file the lawsuit in federal court has very troubling and potentially disastrous implications for the attainment of GLBT rights.

Gay rights groups have generally condemned the litigators' decision to file a federal lawsuit, arguing that working with state legislatures and in state courts is the most promising path. I agree with this, and I have recently written an article on this same subject that is a forthcoming publication in the Connecticut Law Review (Connecticut recognizes same-sex marriage after a court ruling).

Over the last twenty years, the GLBT rights movement has made significant progress. The Supreme Court has issued two rulings that favor GLBT rights, but these decisions came after years of work in state and local governments, courts, and human rights commissions and with corporations. These efforts significantly altered the legal status quo with respect to sexual orientation.

GLBT groups learned an important lesson about "timing" and "venue" after suffering major defeats in the 1980s and early 1990s. After experiencing setbacks with the Supreme Court's blatantly homophobic ruling in Bowers v. Hardwick (which upheld Georgia's anti-sodomy law) and in several lower court cases challenging the military's discriminatory policy, GLBT activists embraced a strategy that pursued change at the local level and subsequently in federal courts. That strategy, culminating with rulings in Romer v. Evans and Lawrence v. Texas, proved highly successful.

Today, marriage equality advocates have pursued the same strategy, and they are currently achieving more success than any other progressive social movement. The only litigation in the federal system brought by seasoned GLBT rights activists center around benefits and employment, which are "safer" issues than marriage (especially in a poor economy). Given the level of public opposition to same-sex marriage, the current ideological composition of the Supreme Court, and the embryonic nature of same-sex marriage in the states, it is highly unlikely that the Supreme Court would rule in favor of plaintiffs claiming a constitutional right to same-sex marriage. Boies and Olson are playing with fire.

Despite the attendant risks of the lawsuit and the complaints from GLBT rights groups, Boies and Olson are determined to go all the way to the Supreme Court, if necessary. While the title of this blog entry may strike readers as being a bit melodramatic, I stand by it wholeheartedly. Bringing this litigation proves that Olson and Boies are either ignorant of the history of gay rights litigation, trying to sabotage same-sex marriage, or are arrogant heterosexuals who believe that they know more about this issue that experienced GLBT rights activists. Pick your poison, men.

PS: Another option: Boies and Olson are best friends with Justice Kennedy, and he told them that he is "down" with the cause!


andgarden said...

I share your skepticism. When I heard that Olsen was doing this, I figured that the object was sabotage. But Boies's involvement gave me some hope.

Ultimately I think the success of this venture will hang on what Justice Kennedy has for breakfast when he thinks about it. I guess that's not much hope at all, but it's hard to be strategic concerning one's own personal rights.

aratina said...

I was wondering what you would say about Ted Olson and David Boies' collaboration. If they do win, could we see something even worse than the extra 10-20 years of inequality a loss would bring--could we see a real attempt to pass the Federal Marriage Amendment and write discrimination into the Constitution?

Darren Lenard Hutchinson said...

Aratina: I do believe that a loss could setback gay rights -- just like Bowers did. Although the Bowers ruling involved a statute that prohibited sodomy regardless of gender, the Court turned it into a "homosexual sodomy" ruling. That conservative ruling impacted gays and lesbians in almost every legal context imaginable - including child custody and employment cases. The same thing could happen in this setting.

Andgarden: I think it is important to be strategic; this is certainly the lawyer's role. People can pursue justice in many venues - including the amendment process, which I suspect will reverse Prop 8. We often romanticize the Courts as instruments of social change. But even taking its most "liberal" era -- during the Civil Rights Movement -- the Court was responding to cues from public opinion, the President(s), Congress, social movements, international affairs, and state laws. A lot of activity outside of the court impacted its rulings. GLBT rights advocates have been modeling this approach.

I find this litigation quite bizarre. It could win in the Ninth Circuit and not make it to the SCT, but that's the "best" outcome that has a remote possibility.

andgarden said...

Waiting on this just seems grossly unfair. But I agree that this is probably either sabotage or secret info from Justice Kennedy. And I doubt it's the latter.

Decidere said...

Well, "down" with the cause makes me think of "homies" on the bench, maybe gonna "bust loose" on this one. With Cheney loosening up, maybe even Alito will be "in the house" on gay marriage. America's turned all funky all of a sudden. Is that George Clinton back in the house on Penn?

Darren Lenard Hutchinson said...

Andgarden: Waiting is the reality of social movements. People have to weigh the benefits of suing in federal court and possibly winning versus suing and losing themselves and setting back gay rights for a decade. Discrimination is grossly unfair - not the formation of sensible strategies.

Also, as I said before, it makes sense to pursue this in a new amendment process. That is not waiting; that's immediate action. Litigation could take years. A new amendment could happen next year.

Decidere - FUNNY.

Anonymous said...


First, I welcome Msrs. Olson and Boies to the cause! Welcome guys.

Secondly, Professor Darren, I share your skepticism. By all rational thougtht, this filing is rash. But...can we...all agree...that the sight of watching these 2 team up will be a powerful and surreal moment, and one that will certainly focus the minds of the justices?

Either way, this filing is invigorating, and I wish these fellas good luck.

It is what it is, people.

FLRN said...

PS: Another option: Boies and Olsen are best friends with Justice Kennedy, and he told them that he is "down" with the cause!

LOL - Darren you are killing me!

Darren Lenard Hutchinson said...

Anonymous: I do not think the Court will be impressed at the popularity of the attorneys making the argument. I would predict at lest a 5-4 ruling, possibly even more conservative that that.

"It is what it is" can mean another decade simply trying to get back to the status quo. Bowers v Hardwick kept parents rom having custody of their kids. These cases can have very long arms.

Anonymous said...

Kennedy was at Olsen's wedding a few years ago... so not such an impossible thing...

Darren Lenard Hutchinson said...

Anonymous: interesting!

rpannier said...
This comment has been removed by the author.
rpannier said...

I would point out to the sceptics of Mr Olson's intent, Ted Olson is a libertarian on social issues. He is a supporter of gay rights, the rights of people of color, etc. So, to those who say he is trying to sabatogue the GLBT movement I say you don't know what you're talking about.
Ted Olson was in the same graduating class as my father at Boalt Law School. They have been friends for years.

edited: Because I left something important out of my original post

Darren Lenard Hutchinson said...

rpannier: I do not seriously believe that Olson is trying to sabotage lgbt rights. So, perhaps he just does not appreciate the difficulty of succeeding in litigation of this nature in the federal courts. I personally do not believe the Supreme Court is prepared to rule that prohibitions of same-sex marriage violate the Constitution. But maybe Olson knows more about Kennedy than I. So, tell your dad that the world is not against his lifetime friend.

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