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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

EARTH TO TED CRUZ AND MIKE LEE: Your anti-marriage equality bill will fail big. 


WASHINGTON — U.S. Congressman Rep. Tim Walz (D-Minn.) on Wednesday introduced the U.S. House version of the bipartisan “Protecting the Freedoms and Benefits for All Veterans Act,” aimed at ensuring LGBT veterans and their families receive equal treatment for equal service.

Currently LGBT veterans, spouses, and their families, depending on where they reside, can be denied survivor benefits, including death pensions, life insurance, educational assistance, bereavement counseling, spousal benefits, and flag burial honors.

The bill is a companion measure to legislation introduced earlier this year by U.S. Sens. Jeanne Shaheen (D-N.H.), and Kirsten Gillibrand. (D-N.Y.), who introduced the Charlie Morgan Military Spouses Equal Treatment Act of 2013, named for New Hampshire National Guard Chief Warrant Officer Charlie Morgan who died earlier this year after a battle with breast cancer.

The Senate version calls for additional benefits to be made available to all military spouses and families, regardless of sexual orientation, and a House version of that bill, the Military Spouses Equal Treatment Act of 2013 (MSET), was re-introduced in February.

Under the proposed bills, the Departments of Defense and Veterans Affairs would be required to honor any marriage that has been recognized by a state and provide a number of key benefits to the spouses of all service members.


h/t: Think Progress LGBT

h/t: Michelangelo Signorile at HuffPost Gay Voices

Concerned Women for America communications director Alison Howard joined CBN’s David Brody this week to talk about what it’s like to be a young person advocating against gay rights.

Howard told Brody that she sees the Supreme Court’s decision striking down a key part of the anti-gay Defense of Marriage Act in light of Roe v. Wade in that both will somehow deprive the world of mothers and fathers.

"Forty years ago, our parents faced a very big decision in Roe v. Wade," Howard said. "They decided at that point to allow the Supreme Court, nine people in black robes, to step in and try to decide for the entire nation the right to abortion. Forty years later, we see the consequences, don’t we? We see men and women hurt, 55 million children lost. And we’re dealing with that as individuals and our families, knowing everyone has a story of someone they know who has been affected."

“For 55 million children lost, you think about how many moms and dads, potential moms and dads, there were there that lost their motherhood or their fatherhood,” she added.

She predicted that the Supreme Court’s DOMA decision would create the same kind of “pain.”

“Conservatives and christians,” she said, will “have to deal with this, in 40 years maybe, the pain that comes from this, of what we have to deal with with children and hurt women and hurt men.”

h/t: Miranda Blue at RWW

h/t: Washington Blade editor-at-large and all-around homophobe Ben Shapiro is convinced that the Supreme Court’s decision to strike down the Defense of Marriage Act (DOMA) will result in the IRS rescinding non-profit tax exemptions from churches across the country - a delusional horror story that has no basis in reality.


A few things to note here:

1. The DOMA Decision Had Nothing To Do With Tax Exempt Statuses For Churches. The Supreme Court’s decision in Windsor v. United States dealt exclusively with whether the federal government should be allowed to deny federal benefits to same-sex couples who are legally married in their state. Allowing married gay couples to file joint tax returns has nothing at all to do with whether churches are required to perform same-sex weddings to maintain their tax exemptions.

2. Every State With Marriage Equality Already Has Exemptions For Churches. In every single state that’s legalized marriage equality, churches are exempt from having to perform same-sex weddings. No church in America has ever been forced to perform a same-sex wedding. Laws like DOMA only deal with the civil definition of marriage, not the religious celebration of weddings.

Still, to support his claim, Shapiro cites two incidents.

The first is the 1983 Supreme Court decision in Bob Jones University v. United States, in which a religious school lost its tax exempt status due to its ban on interracial dating. What Shapiro fails to mention is that the decision explicitly excluded churches from its scope:

We deal here only with religious schools - not with churches or other purely religious institutions.

Shapiro also cites the 2006 case of Boston Catholic Charities, which voluntarily withdrew from adoption services rather than serve same-sex couples. Again, that incident didn’t deal with a church, and has been debunked for a number of other reasons.

Shapiro joins a long line of conservative commentators in confusing civil marriage with religious marriage ceremonies, as well as confusing marriage laws with anti-discrimination laws

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

U.S. Sen. Bob Casey, who has faced mounting pressure in recent days to join the rapidly growing number of marriage-equality supporters, announced today that he now is in favor of the repeal of the Defense of Marriage Act — and full marriage rights for same-sex couples.

“After much deliberation and after reviewing the legal, public policy and civil-rights questions presented, I support marriage equality for same-sex couples and believe that DOMA should be repealed,” Casey said in a statement exclusively first released to PGN Monday afternoon.

Casey previously backed civil unions for same-sex couples and has said he opposes constitutional bans on same-sex marriage. He has supported pro-LGBT measures such as the Employment Nondiscrimination Act and the repeal of “Don’t Ask, Don’t Tell.”

Casey said this week that he began to reassess his position on marriage equality in 2011 when the Respect for Marriage Act, which would lift DOMA, was introduced for the first time in the Senate.

“I began to focus on the issue of same-sex marriage much more intensely than I had before,” he said.

Part of that process included considering feedback from LGBT Pennsylvanians and their families, Casey said.

Efforts to press the senator on his position ramped up last week as the U.S. Supreme Court held hearings on a challenge to DOMA and to California’s ban on same-sex marriage. A number of other senators announced they had evolved on marriage equality in the past few days.

Last week, Equality Pennsylvania, Keystone Progress and launched a major push to get Casey on board, which backers said generated more than 10,000 phone calls, emails and letters from Pennsylvanians urging the senator to support marriage equality.

Casey, a Catholic, acknowledged that his new position may not be universally applauded — but said the issue of equality should be one that people of all parties and background can support.

“I understand that many Americans of good will have strong feelings on both sides of this issue,” he said. “I believe elected public officials have an abiding obligation to refrain from demonizing and dividing people for partisan or political gain. Rather, Democrats and Republicans should come together and find areas of agreement to do what’s best for the country, including lesbian and gay Americans.”


During oral arguments this morning, U.S. Supreme Court Chief Justice John Roberts appeared to at least entertain the argument by House Republicans that gays and lesbians are too politically powerful for constitutional protection.

Roberts suggested that gays and lesbians must be “politically powerful” because politicians are “falling all over themselves” to endorse gay marriage, according to a tweet by Mother Jones’ Adam Serwer. The brief by Paul Clement, who represented the House of Representatives in defending DOMA, had reasoned that gays and lesbians are winning political battles and “have the attention of lawmakers,” an absurd claim since the “power” assertion is factually inaccurate, and because such an argument would also cancel out protections for racial minorities and women.

Roberts and his fellow conservatives also expressed concern over the White House’s decision not to defend the Defense of Marriage Act, with Kennedy calling it “very troubling” and Justice Antonin Scalia criticizing the Justice Department’s “new regime.”

By contrast, several of the court’s liberal justices expressed alarm over the impact of DOMA’s actual deprivation of federal marriage benefits on gays and lesbians, with Justice Ruth Bader Ginsburg calling the rights left for married couples after DOMA “skim milk” and questioning, “What kind of marriage is this?” Justice Elena Kagan, meanwhile, pointed to evidence from a House of Representatives report that lawmakers passed DOMA with improper motives. Justice Anthony Kennedy, the likely swing vote, repeatedly expressed a different concern with DOMA — that it impinged on state definitions of marriage.

H/T: Think Progress


The Supreme Court will today hear oral arguments in the case against the Defense of Marriage Act, the 1996 law that denies equal federal benefits to couples who are legally married under state law and also burdens families and the federal government.

The Congressional Budget Office estimates that DOMA increases the deficit by roughly$1 billion a year, and while that amount is small, striking it down would save far more than ending subsidies to NPR or some of the other “deficit reduction” ideas Republicans have pursued in the past.

Those savings would come from numerous sources. Tax revenues would rise by more than $400 million a year, and though costs on programs like Social Security and federal benefits would increase, costs for safety net programs like Medicare, Supplemental Security Income, Medicaid, and other programs would go down.

That’s significant, because the largest benefit from recognizing same-sex marriages comes from what it would do for individual couples and families. Same-sex couples aren’t allowed to file joint taxes, which prohibits them from claiming some tax credits and deductions that would benefit their families. They also aren’t eligible for spousal health, Social Security, or federal pension benefits, making it harder for some LGBT families to make ends meet. Older LGBT couples are more likely to live in poverty than married heterosexual seniors, which is why ending DOMA would reduce costs for programs like Medicaid and SSI — access to spousal benefits would lift many LGBT Americans out of poverty and off of the social safety net.

Striking down DOMA is important primarily to provide LGBT Americans equal protection under the law. But it’s also important because it will benefit the American economy by helping businesses, reducing the deficit, and lifting people out of poverty.

h/t: Travis Waldron at Think Progress Economy