John W. Dean

The Olson/Boies Challenge to California's Proposition 8: A High-Risk Effort

By JOHN W. DEAN
Friday, May 29, 2009

This week, famously, the California Supreme Court issued its decision, Strauss v. Horton, upholding Proposition 8, the voter-adopted prohibition against same-sex marriages. Within twenty-four hours, former U.S. Solicitor General Ted Olson and celebrated trial attorney David Boies had together filed a federal lawsuit seeking to overturn this controversial provision of the California Constitution.

Olson and Boies are best known for their roles in Bush v. Gore. In their challenge to Proposition 8, Olson, the conservative, and Boies, the progressive, represent two California couples who are precluded from marrying in light of Proposition 8's changes to California law.

Clearly, with the high-profile Olson and Boies in charge, this is a carefully- considered move in taking same-sex marriage to federal court. However, for many good reasons, some in the Gay and Lesbian community, and some of the attorneys who have been toiling in this field for many years, are concerned about their action. It is an aggressive undertaking that could end marriage discrimination against gays, but it could also backfire, and set back efforts that have been proceeding state by state, with considerable success, over the past decade.

Allow me to broadly sketch the situation and the potential problems it raises.

The Olson/Boies Action

The Olson/Boies lawsuit is being underwritten by the American Foundation for Equal Rights (AFER). This foundation is newly-organized, and this is its first and only effort so far. According to persons with whom I spoke who are familiar with the new organization, it is being funded by individuals associated with the production of the successful Hollywood feature "Milk" the story of the late San Francisco Board of Supervisors member and gay rights activist Harvey Milk.

AFER assisted in enlisting Olson, who in turn enlisted Boies. The combination was sought to make the point that this case is not about a Republican or Democratic issue, nor a conservative or liberal issue; rather, it is about a fundamental civil rights issue for all Americans who are being denied equal protection under the law by being denied the right to marry based on their sexual orientation.

The lawsuit was filed in the U.S. District Court for the Northern District of California. It was assigned to Chief Judge Vaughn Walker, who was appointed by President George H. W. Bush (actually, Ronald Reagan first selected Judge Walker, and Bush I reselected him when he was not confirmed during the Reagan years). He is considered an unpredictable judge.

The plaintiffs are Kris Perry and Sandy Stier, who live in Northern California, and Paul Katami and Jeff Zarrillo, who live in Southern California. The defendants are the key California officials responsible for enforcing the new law, including Attorney General Jerry Brown. Although Brown's office was responsible for defending the Proposition 8 case, Brown -- who is likely to again run for governor -- has previously expressed his dislike of Proposition 8. As a result, it was not Brown, but former U.S. Solicitor General Kenneth Starr -- now the Dean of Pepperdine Law School in Malibu, California who represented the "Yes On Proposition 8" organizations in the recent litigation, successfully convincing the California Supreme Court to uphold Proposition 8.

No one should be surprised if Starr returns to this litigation once again, seeking to intervene to support the ban on same-sex marriages, and claiming that Attorney General Brown's office is not likely to do the job since Brown himself does not like the law. And even if Ken Starr does not step in, the "Yes On Proposition 8" folks will likely find someone else to join their fight to maintain the ban.

The Risks of a Federal Action: Many Federal Judges, and Even the Supreme Court Itself, May Be Hostile to the Arguments Made

Prior to Olson and Boies's action, there has been no federal lawsuit seeking to overturn state bans on same-sex marriages. Nor have there been suits attacking the federal discrimination against gays perpetrated by the so-called "Defense of Marriage Act", which precludes gay couples from receiving benefits to which others are entitled. The reason these federal suits, thus far, have never been brought is that attorneys familiar with the federal courts find them so overloaded with conservative Republican judges that they doubt that such efforts would be productive and fear they could actually be damaging, by setting anti-gay-rights precedent. In short, given the current federal appellate bench, such efforts are not merely futile, but potentially counterproductive.

In the few months President Obama has been in office and of course, he is no great champion of same-sex marriage little has changed. Obama's nominee for the U.S. Supreme Court, Judge Sotomayor, may be empathetic to gay rights, but, in fact, nobody knows what her position on this issue may be, or what role, if any, her Catholic faith might play. Her record during her service on the U.S. Court of Appeals for the Second Circuit in the area of equal protection under the Fourteenth Amendment the basis of the Olson and Boies lawsuit enables no prediction, one way or another, as to how she might rule in Boies's and Olson's federal equal protection suit.

No doubt correctly, Olson and Boies believe if there is any federal circuit in which they can win, and place a case before the U.S. Supreme Court, they are in that court in California in the U.S. Court of Appeals for the Ninth Circuit. Olson and Boies are seeking a preliminary injunction. Win or lose at the trial-court level, this is an immediately appealable matter, so it will be in the hands of the Ninth Circuit relatively soon. And if, as expected, the plaintiffs win before the Ninth Circuit, that ruling will certainly be appealed to the Supreme Court by those who want to keep the California ban, and possibly expand it to other states.

The retirement of Justice David Souter, with his possible replacement by Judge Sonia Sotomayor, does very little to change the balance on the U.S. Supreme Court on this issue, other than to make it even more risky. The conservatives on the High Court will likely oppose overturning the Proposition 8 ban. The advantage of the fact that one of their own Ted Olson is seeking to set aside this law is seriously diluted by the fact that Olson is a hired gun here. Olson did not take on this effort out of the goodness of his heart and a desire to make American law fair for Gays and Lesbians. Thus, Justices Scalia, Thomas, and Alito and Chief Justice Roberts will not be moved by Olson's involvement, and will likely be four solid votes against overturning Proposition 8.

The moderates on the Court -- Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer, will likely be sympathetic toward removing Prop 8's discriminatory impact. No doubt, Justice Souter would have voted with the moderates as well. As noted above, the vote Judge Sotomayor if confirmed would cast is unclear.

Meanwhile, another key unknown here was, and still is, Justice Anthony Kennedy. Kennedy wrote for the majority in Romer v. Evans, invalidating a provision of the Colorado Constitution that precluded homosexuals from filing local discrimination claims. He also wrote for the majority in Lawrence v. Texas, striking down the Texas law that prohibited sexual acts between same sex couples, and overturning Bowers v. Hardwick, which had long had a negative impact on the Gay and Lesbian community. These rulings, however, are not necessarily indicative of how this practicing Catholic member of the Court, who appears sympathetic to gay rights, might vote regarding same-sex marriage. Among other distinctions, Kennedy saw the provision in Romer as potentially quite extreme, and Lawrence was a case about criminal penalties, not civil benefits.

Why the ACLU and LGBT Organizations Oppose the Federal Court Actions

After the California Supreme Court upheld Proposition 8, the American Civil Liberties Union, and the leading LGBT (lesbian, gay, bisexual, transgender) organizations posted their advice to same-sex couples about marriage: Rather than advising further court action to deal with the California ban, they advised that it was time to return to the ballot box. And they discouraged the filing of federal lawsuits.

These organizations are very clear about why there should be no effort to file a federal case: "[T]he U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas's law [in Lawrence]."

More specifically, the ACLU and LGBT rights organizations have noted that a loss in the U.S. Supreme Court on this issue would have a seriously negative impact on the state courts that have been striking down marriage bans on their own. In addition, it might negatively impact efforts at the ballot box. These organizations, which have been fighting these battles for decades, reminded their community that "it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld Georgia's sodomy law. That was fast for the Supreme Court. And during that time, many LGBT Americans lost jobs, lost custody of their children, and suffered other harms because the Bowers decision was taken as a license to discriminate against us."

In speaking off-the-record with the ACLU, I learned that they are quite worried about the Olson/Boies action. No one questions the good motives behind the action, nor Olson's or Boies's skills as attorneys, although this is their first venture into a unique area of the law. The questions raised are simply about the wisdom of taking a tremendous risk, a gamble that may grievously backfire.

It would be wonderful if Olson and Boies were to succeed. It will be a disaster if they fail. While they will go on to their next big case, untold thousands in the LGBT community could be devastated by their failure. Olson and Boies are placing at risk the slow, state-by-state, steady progress that has been moving apace across the nation.

The American Foundation for Equal Rights which, as noted above, is backing the Olson/Boies suit -- should enlist the resources of the ACLU and LGBT organizations who have been fighting this fight to coordinate the activities of Olson and Boies with the ongoing efforts of the entire Gay and Lesbian community. For instance, the ACLU and other LGBT organizations have spent decades gathering good scientific material to address the often outlandish claims that arise in these lawsuits. Hopefully, Olson and Boies will draw on their work before charging ahead.

Let's hope such cooperation is possible. It would give a lot of people comfort to understand that everyone was working together on the most basic civil rights issue of the 21st Century.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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