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thepoliticalfreakshow:

Fighting & WInning Against Proposition 8

On August 19, 2009, Jo Becker of the Times wrote a front-page profile of Ted Olson, the most well-known and highly regarded conservative lawyer in the country, who had filed a federal lawsuit challenging California’s Proposition 8, which amended the state constitution to prohibit gay marriage. Olson said that he hoped to take the argument to the Supreme Court, to seek a ruling that the Constitution guaranteed every gay and lesbian the right to marry. What’s more, Olson was joined in the lawsuit by one of the most prominent left-leaning attorneys in the country, David Boies, who had been Olson’s opposing counsel in Bush v. Gore. Boies, like Olson, is straight. Becker quoted Paul Katami, one of the gay plaintiffs in the California case, describing how Olson “put his arm around me and said, ‘We’re going to plan your wedding in a couple of years—this is going to happen.’ ”

I remember reading the story at the time and thinking, “This is clever.” A lot of people who were not in favor of same-sex marriage—or who weren’t even thinking about it, as it was only allowed in five states—might now seriously consider the issue. If two of the best lawyers in America, from opposite sides of the political spectrum, joined forces, and had resources comparable to those that they enjoyed when battling on behalf of corporate clients, it seemed like they had a real chance of convincing the Supreme Court that the Constitution did guarantee a right to marry.

The story was so intriguing to Becker that she covered it, full time, for almost five years, arranging with the plaintiffs and their lawyers to obtain unrestricted access to them during the case, on the condition that she not publish the complete story until after it was over. Her book, “Forcing the Spring: Inside the Fight for Marriage Equality,” will be released on Tuesday. (I was interviewed for the book.)

The book focuses on Chad Griffin, a Los Angeles political consultant, Hollywood fund-raiser, and former staffer in the Clinton White House (where he and I briefly worked together). Soon after the passage of Proposition 8, in November, 2008, the idea of hiring Olson was serendipitously suggested to Griffin by an acquaintance of one of his clients, who happened to drop in on their lunch one day at the Beverly Hills Hotel. Griffin was pained by the success of the anti-gay initiative and, like a good public-relations man, he knew better than to pass up a headline-grabbing idea. Olson, much to Griffin’s surprise, was more than eager to take up a challenge to what he regarded as the violation of a constitutionally guaranteed right to marry. Olson and Griffin decided to enlist a liberal co-counsel, to help convince gay-rights groups that their plan was not a sinister anti-gay scheme. After their first two choices declined, Boies agreed to sign on—Becker suggests that Boies liked the case from the start, in part because “its history-making potential and odd-couple story line was sure to garner huge amounts of press interest.” (The lawyers and their backers were so sure of this that they not only arranged for Becker to have behind-the-scenes access, they also had a documentary film crew and an award-winning photographer chronicle the story.)

Their strategy was simple: draw attention to the issue by featuring these new and unlikely advocates; wrap the cause in the American flag; embrace support from those who had come late to the fight; and orchestrate the whole thing like a political campaign. As we now know, this was, in many ways, a brilliant stroke, politically if not legally. The Proposition 8 lawsuit did not succeed in obtaining the broad Supreme Court ruling that Olson and Griffin had hoped for; the justices decided that their opponents didn’t have standing, and left in place a lower-court ruling overturning California’s ban. That did restore marriage rights to couples in that state; still, if that was all that the court had ruled that summer, it might have been viewed as a disappointment. But it was decided the same day as the Supreme Court’s historic decision in the case brought by Edie Windsor and her lawyer Roberta Kaplan to overturn the federal Defense of Marriage Act (DOMA). Becker reports that Olson and Griffin originally considered fashioning their case as a challenge to DOMA, but did not want to pit themselves against President Obama, whose Department of Justice would have had to defend the law. Still, there is no question that the Proposition 8 case was a major factor in the shift in public opinion that laid the political groundwork for Windsor.

It was the Court’s ruling in Windsor, not the Proposition 8 case, that has become the legal basis for a number of other cases seeking full federal recognition of same-sex marriage rights, which are now working their way through the appeals courts. One or more of these cases—possibly including a new one brought by Olson and Boies—will reach the Supreme Court in a year or two. As Becker describes in considerable detail, the California case and the strategy behind it worried and angered the established gay-rights legal community, which believed that the suit was too aggressive, might precipitate a Supreme Court ruling that could set back the cause, and was liable to upset the long-gestating, incremental legal strategy already under way—not to mention that two straight corporate lawyers, Boies and Olson, would get the credit if it succeeded. Becker reports that Paul Smith, the openly gay lawyer who argued Lawrence v. Texas before the Supreme Court, turned down a request to join the case from Olson and Griffin, because he believed that their approach was too risky. There was more to that than Becker perhaps acknowledges. But the Proposition 8 argument turned out to be insightful: it anticipated a developing shift in American public opinion on this issue, while at the same time helping to accelerate it. And whatever the internal battles, other gay civil-rights groups were at least publicly supportive of it. They helped to lay that groundwork, too.

Becker’s account of the hearings, and her analysis of the complicated legal theories involved in the long appeals process, are excellent. Her writing about the four plaintiffs in the case—the true emotional heroes of this book—is particularly affecting. The book is not, however, a neutral account of what happened: it is an account as seen largely through the eyes of Griffin and Olson. It could be argued that Becker is not sufficiently careful in drawing attention to this distinction, but I think any knowledgeable reader will understand that this is the case. The book is a rather adoring narrative profile of these two men and what they went through in an effort to change history, and perhaps to make their own personal marks on it. Here are a recently “out” and fairly conservative young gay Democrat from Arkansas and a very prominent Republican attorney who symbolized the triumphant conservatism of the Bush years, joining forces to fight for gay equality.

Even before its release, the book has attracted considerable attention: an excerpt appeared in the Times Magazine, detailing Obama’s own struggle to “evolve” on the issue, which I wrote about here. Late in the book, Charles Cooper, the lawyer who argued against Olson and Boies, reveals to Becker that his daughter is a lesbian—and this tidbit was leaked to the press last week to help create more pre-publication buzz. The portrait of Cooper, whom Becker interviewed at length after the case ended, is beautifully nuanced. “My views evolve on issues of this kind the same way as other people’s do, and how I view this down the road may not be the way I view it now, or how I viewed it ten years ago,” Cooper told her. That kind of admission would seem to be the whole point.

For the most part, Becker does not write about participants in the campaign for marriage equality who were not directly involved in bringing the Proposition 8 case, except to highlight their skepticism about what she clearly believes was an excellent legal strategy. Indeed, a reader coming to the story only through this book would miss something important about the roles of Evan Wolfson, whose Harvard Law School thesis formed the basis for the marriage-equality movement and who has continued to be a legal and political leader on the topic; Andrew Sullivan, who gave the movement intellectual heft with his writings on gay marriage in the nineties; and Mary Bonauto, the adored lawyer for the movement who brought the first successful marriage case in Massachusetts, among many others.

Anyone who wants a complete history and overview of the gay-rights movement can read Linda Hirshman’s excellent and comprehensive “Victory: The Triumphant Gay Revolution,” published in 2012, or, even before that, Dudley Clendinen and Adam Nagourney’s “Out for Good: The Struggle to Build a Gay Rights Movement in America,” published in 2001, which is still a treasure. But if you are interested in the story of how a Hollywood political consultant and a conservative lawyer joined forces in 2009, in the belief that they could really make a difference, and, no doubt, gain some notoriety for themselves and their cause, helping to dramatically change the way Americans thought of gay people and the way gay people thought of themselves—this book is for you. The real story it tells is how seemingly small moments, occurring by happenstance, when combined with boldness and imagination, can help to change the course of history. There is a moment toward the end of the book when Olson expresses some self-doubt, as he prepares to argue the case before the Supreme Court, but one of his longtime conservative friends tells him, “You’ve already won.”

Richard Socarides is an attorney and longtime gay-rights advocate. He served in the White House during the Clinton Administration and has also been a political strategist. He now oversees public affairs at GLG. Opinions expressed here are only his own. Follow him on Twitter @Socarides.

Photograph of Ted Olson by Amanda Edwards/Getty.

Source: Richard Socarides for The New Yorker

H/T: CNN.com

As expected, SSM returns to California, Prop 8 thrown out.

Tomorrow’s the big day for the future of our nation on the subject of LGBTQ rights and marriage equality. I surely hope that #SCOTUS decides to strike down #DOMA AND #Prop8

Predictions:

SCOTUS, your goals on the 2 big LGBTQ rights cases this week: Overturn DOMA and Prop 8.

Edie Windsor lost the love of her life in 2009. They had been together for more than 40 years. They were partners and best friends. They shared everything and honored their responsibilities to one another. Yet, in the eyes of federal law, their marriage was viewed as separate and unequal.

Edie and her late wife, Thea Spyer, are two of millions of lesbian, gay, bisexual and transgender (LGBT) Americans denied their fundamental rights to life, liberty and the pursuit of happiness with their families. When Thea passed away, Edie was billed more than $363,000 in federal taxes — because, under the Defense of Marriage Act (DOMA), the federal government treated her and Thea as complete strangers, thereby denying them the estate tax protections afforded to married couples.

With an unaffordable tax bill and an untenable system, Edie could not remain silent, and she decided to challenge DOMA as a violation of our Constitution. Thankfully, she is not alone.

Citizens across the country have risen up to challenge DOMA, and on Wednesday I will proudly join two of those Americans, my constituents Karen Golinski and Amy Cunninghis, to hear oral arguments before the Supreme Court. They have the support of President Obama, who ordered his administration to stop defending this measure in our legal system, and members of Congress, who have signed amicus briefs reaffirming our belief in marriage equality.

The only national leaders still standing on the wrong side of history are House Republicans, who have used taxpayer dollars to pay outside counsel to defend discrimination. The Republican-approved lawyers have lost in every case and appealed each ruling. So the fight goes on.

Wednesday, Edie’s case will come before the Supreme Court. On Tuesday, justices heard oral arguments on Proposition 8 — the measure that banned same-sex marriages in California.

In both cases, the justices will hear compelling stories of love, commitment and family. They will be asked to consider the individual facts of each argument alongside broader questions of DOMA and Prop. 8’s constitutionality. They will confront values and issues as old as our republic: matters of justice and civil rights, fairness and the role of government, equality and equal protection under the law.

The court’s conclusion must be firm and clear: DOMA and Prop. 8 are unconstitutional. Neither measure meets the standards of our founding principles. Both deserve to take their rightful place in the dustbin of history.

The proponents of laws against marriage equality have long known that such laws would not pass constitutional muster or withstand judicial review as demonstrated by their efforts to preclude judicial review. In 2004, the Republican-controlled House passed the so-called Marriage Protection Act to try to prevent federal courts from ruling on challenges to DOMA. They even claimed that the landmark case, Marbury v. Madison, was “wrongly decided.”

Their idea, known as “court-stripping,” betrays one of the cornerstones of our system of checks and balances: that our judiciary must be independent, free from manipulation by Congress and the president, so that our Constitution and individual rights are always safeguarded. Indeed, defending individual rights and equal protection are core functions of judicial review.

Those rights are at stake in the DOMA and Prop. 8 cases. It is clear that there is no legitimate federal or state government interest in discrimination. Under any standard or by any degree of judicial review, there is no justification for laws against marriage equality.

Both DOMA and Prop. 8 were enacted with motives ranging from “majoritarian prejudice or indifference.” Attempts have been made by proponents of these laws to justify them on erroneous and deeply offensive stereotypes. Yet prejudice — whether motivated by animus or indifference — does not make it right for LGBT families to be punished, stigmatized, or denied their rights.

By overturning DOMA, we will ensure that spousal benefits are provided to the husbands, wives and partners of LGBT service members and veterans. We will strengthen our economy by delivering tax deductions and employee benefits to same-sex couples, in the private sector and the federal workforce. By overturning Prop. 8, California can join the march of states across the country extending the rights and responsibilities of marriage to LGBT Americans.

For Edie Windsor and millions like her, the journey has been long, hard, and defined too often by stigma, injustice and inequality. For all Americans, the fight for civil rights has been a defining cause for our country. With the Supreme Court’s action, that journey and that fight can once again bear the fruits of progress. We can bend the moral arc of history once more toward justice and secure a future of equality for all American families. Today, I hope justice prevails for Windsor and for all LGBT Americans.

Nancy Pelosi, the first female speaker of the House, is the House Democratic Leader and has represented San Francisco in Congress for 25 years.

I wish that she was still the Speaker of the House.

h/t: USA Today

In oral arguments Tuesday morning on California’s Proposition 8, the Supreme Court appeared narrowly divided on the question of whether the Constitution’s guarantee of equal protection affords same sex couples the right to marry — but a majority of the justices appeared skeptical that the case has standing and flirted with throwing it out.

Chief Justice John Roberts set the tone by asking each of the lawyers to begin by explaining why the case has standing. The other justices backed him up with a series of questions, even as all three lawyers arguing the case insisted that it was properly brought before the court.

Seven of the justices voiced skepticism, to varying degrees, about whether the case was properly before the court. At issue is whether the case was properly defended. California Gov. Jerry Brown (D) declined to defend Prop 8 in court, and the defense was undertaken by one of the original proponents of Prop 8.

“I suppose there might be people out there with a personal interest” in whether gays and lesbians should have the right to marry, said Roberts.

“On a question of such fundamental importance why should it not be left to the people?” asked Alito, who also questioned whether the judiciary ought to be able to decide whether or not to legalize same-sex marriage, “which is newer than cellphones or the internet.”

Justice Stephen Breyer said the group defending Prop 8 was “no more than a group of five people who feel really strongly that they should vindicate the public interest.”

Justice Antonin Scalia was the only one not

The justices also held a spirited debate on the merits and appeared sharply divided as to whether or not states have the right to outlaw same-sex couples from marrying.

The political and legal history of gay marriage in California is torturous. Proposition 8 was passed by California voters in November 2008 in response to a ruling by the state Supreme Court earlier that same year that found a right to gay marriage under the California constitution. Same-sex marriage had previously been banned by statute and by a referendum passed by the voters in 2000. Following the passage of Prop 8, the California Supreme Court ruled in 2009 that it was valid, but left intact and legal the gay marriages that had been legally performed before Prop 8 passed. Challenges to Prop 8 were filed in federal court and eventually made their way to the Supreme Court, but not before an exceptional amount of legal wrangling and further involvement by the California Supreme Court.

h/t: TPMDC

Looks like Prop 8 will be history by the end of June.

Special Tuesday Prayer Notice: We pray that SCOTUS decides to nix both the Defense of Marriage Act (DOMA) and Prop 8 laws when they will be decided on, which is most likely going to occur in the final week of June of this year (much like how SCOTUS ruled on PPACA and AZ SB1070 during the last week of June back in 2012). It’s time to throw DOMA and Prop 8 off the books!

The Supreme Court will hear arguments Tuesday morning on California’s Proposition 8 — a case that could settle the national debate over marriage equality once and for all.

Or it could throw it back to the political realm for a series of lengthy battles across the dozens of states that have yet to permit same-sex couples to marry.

The case, Hollingsworth v. Perry, is about whether California’s ban on gay marriage, adopted by voters in 2008, violates the Constitution’s guarantee of equal protection under the law. The lawsuit was brought by Kristin Perry and Sandra Stier, who in May 2009 were denied a marriage license because they were a same-sex couple. Represented by über-lawyers Ted Olson and David Boies, they want the justices to recognize a constitutional right to marry. If a majority of the Court agrees, it would wipe out all state bans on gay marriage.

Alternatively the justices could reach a narrow ruling that strikes down just Prop 8 on the particulars and perhaps some other state bans on marriage equality — while leaving other bans intact. One possible route for the court would be to say states may not take away same-sex marriage rights after they have granted them, as California did prior to the passage of Prop 8.

The defenders of Prop 8 — ProtectMarriage.com, which spearheaded the original ballot initiative — argue that marriage should be left to states. If the justices agree, Prop 8 (and other gay marriage bans) would be upheld and proponents of gay marriage would face a state-by-state battle to overturn existing bans.

The outcome is difficult to predict. Even though the national political tide is turning rapidly in favor of equality, and although swing Justice Anthony Kennedy has a gay rights streak, some court watchers doubt that the most conservative Supreme Court since the 1930s would leap ahead of most states on the issue and enshrine a right to marry. On the other hand, some lower court decisions point to a victory for same sex couples in California, if not other states as well. (The Obama administration recently championed a constitutional right for gays to marry.)

Alternatively, the justices could determine that the case lacks standing because California has refused to defend the law, and send it back to the lower courts to try again. This is less likely given that the Court agreed to take up two major gay marriage cases back to back.

The Tuesday oral arguments on Prop 8 will be followed Wednesday by arguments on the constitutionality of the Defense of Marriage Act, the 1996 law that prohibits federal recognition of gay marriage and denies benefits to legally married same sex couples.

H/T: TPM