The Boies/Olson Lawsuit
Bill Araiza at PrawfsBlawg has a interesting post about the Boies/Olson gay marriage lawsuit that was filed in California yesterday. He echoes my thinking on the subject. Though Boies and Olson received a lot of favorable press yesterday, it's not at all clear to me that they're acting either wisely or altruistically in filing this lawsuit.
The groups that have been tirelessly fighting for marriage equality over the last decade have deliberately avoided filing federal lawsuits. They reason, correctly I believe, that the groundwork has not yet been laid for victory at the federal level. They know that the odds of the Supreme Court issuing a Loving v. Virginia type of opinion with respect to gay marriage will be greatly enhanced if, at the time the case is heard, gay marriage is legal in a majority of states and supported by a majority of the population. If the Court rules on the issue before that happens, there's a real risk that it will issue an opinion that sets the cause back, maybe for decades.
So instead of filing federal lawsuits, marriage equality advocates have been patiently pursuing a state-by-state strategy, a strategy that has recently begun to pay real dividends.
By filing this lawsuit, Boies and Olson are throwing a wrench into that strategy. They're taking a very big risk. Some have even suggested that this lawsuit is a cynical ploy to have this issue litigated at the federal level before the time is right. I don't think that's the case. I think Boies and Olson are sincere in their beliefs and want to win. I do think, however, that they are knowingly taking a big risk because they want to be the lawyers whose names are forever attached to the landmark opinion creating marriage equality. They want to be the Thurgood Marshalls of this particular civil rights issue, even though they are latecomers to the cause. In other words, they are grandstanding.
My best guess is that they're gambling that we are nearing a tipping point on gay marriage and they want to be the first lawyers to get their case all the way to the Supreme Court. They're gambling that by the time that happens, the political environment will be ripe for a Loving v. Virginia type of decision. I don't know if that's true. I've written here before that I think we'll see such a decision within ten years. But within 2 to 4? I don't know.
As Professor Araiza puts it, Boies and Olson have "grabbed a baby out of someone else's hands and are running pretty fast with it. I really hope they don't drop it."
UPDATE: In Boies and Olson's defense, they likely also believe that, given their own reputations and skill as Supreme Court advocates--as well as their reputations within the political world--a suit brought by them would stand a better chance of succeeding than one brought by the interest groups that have long been linked to this particular cause. I think that's true, and when this issue eventually does make its way to the Supreme Court, this would be the team I'd want representing the marriage equality side. I just question whether now is the right time to start this train rolling. Like I said, this is a big gamble.
The groups that have been tirelessly fighting for marriage equality over the last decade have deliberately avoided filing federal lawsuits. They reason, correctly I believe, that the groundwork has not yet been laid for victory at the federal level. They know that the odds of the Supreme Court issuing a Loving v. Virginia type of opinion with respect to gay marriage will be greatly enhanced if, at the time the case is heard, gay marriage is legal in a majority of states and supported by a majority of the population. If the Court rules on the issue before that happens, there's a real risk that it will issue an opinion that sets the cause back, maybe for decades.
So instead of filing federal lawsuits, marriage equality advocates have been patiently pursuing a state-by-state strategy, a strategy that has recently begun to pay real dividends.
By filing this lawsuit, Boies and Olson are throwing a wrench into that strategy. They're taking a very big risk. Some have even suggested that this lawsuit is a cynical ploy to have this issue litigated at the federal level before the time is right. I don't think that's the case. I think Boies and Olson are sincere in their beliefs and want to win. I do think, however, that they are knowingly taking a big risk because they want to be the lawyers whose names are forever attached to the landmark opinion creating marriage equality. They want to be the Thurgood Marshalls of this particular civil rights issue, even though they are latecomers to the cause. In other words, they are grandstanding.
My best guess is that they're gambling that we are nearing a tipping point on gay marriage and they want to be the first lawyers to get their case all the way to the Supreme Court. They're gambling that by the time that happens, the political environment will be ripe for a Loving v. Virginia type of decision. I don't know if that's true. I've written here before that I think we'll see such a decision within ten years. But within 2 to 4? I don't know.
As Professor Araiza puts it, Boies and Olson have "grabbed a baby out of someone else's hands and are running pretty fast with it. I really hope they don't drop it."
UPDATE: In Boies and Olson's defense, they likely also believe that, given their own reputations and skill as Supreme Court advocates--as well as their reputations within the political world--a suit brought by them would stand a better chance of succeeding than one brought by the interest groups that have long been linked to this particular cause. I think that's true, and when this issue eventually does make its way to the Supreme Court, this would be the team I'd want representing the marriage equality side. I just question whether now is the right time to start this train rolling. Like I said, this is a big gamble.
posted by A.L. at 12:00 PM
19 Comments:
On the other hand, is it possible that the organized legal groups have a careerist interest in delaying the federal action? The long-range job prospects for gay civil rights attorneys are quite different if the strategy is many years of state-by-state litigation, vs. an early ruling by the supreme court (if successful). Also, the organized groups have their own interest in being recognized as the Thurgood Marshalls of gay civil rights. Self-interest doesn't begin with Boies and Olson.
I'm not so sure it's the wrong time. Or rather, that if we don't try now, that it'll be the right time any time soon. At the end of the day, the balance on the court is not going to get more liberal any time soon, unless something happens to Scalia/Thomas/Alito/Robers (like they get sick or hit by a bus.)
And given both Romer and Lawrence, I think there is more than a non-zero chance that they win.
'Scuse me. This is TED Olsen - of Bush v Gore. What John Dean said not withstanding, is it possible to be cynical enough?
My best guess is that they're gambling that we are nearing a tipping point on gay marriage and they want to be the first lawyers to get their case all the way to the Supreme Court.That's possible. Or it could be that one of them has discovered that he has a loved one who is gay and who, because of laws like the one in California, will be a second class citizen. I suspect that if Ted Olson had such a friend or relative and made an emotional announcement of that fact in the next few months, then that would have a profound impact on the Justices, most of whom admire Mr. Olson.
It's all speculation, of course.
It is a little Twilight Zone to see Olsen filing this lawsuit. I guess I remain tentatively optimistic that they will indeed win, that this will not derail the other attempts at marriage equality, and so forth.
In other words, I am holding my breath....
Jazzbumpa - I don't think that's possible!
Sorry, I don't see any reason to believe their advocacy skills or reputations -- well-deserved, btw -- will make one bit of difference assuming the case makes its way out of the 9th and to the Supremes (also a uncertain assumption).
“By filing this lawsuit, Boies and Olson are throwing a wrench into that strategy. They're taking a very big risk. Some have even suggested that this lawsuit is a cynical ploy to have this issue litigated at the federal level before the time is right. I don't think that's the case. I think Boies and Olson are sincere in their beliefs and want to win.”
AL- I think you owe your more gullible readers a better explanation than this. When you say “I don’t think that’s the case,” you imply that the conspiracy theory is within the realm of possibility (eg, some say that Obama is a secret Muslim, but “I don’t think that’s the case”).
Boies and Olson are two of the most well-respected lawyers in this country. I don’t say that in order to prove that they would never do something underhanded (although I know both of them somewhat and believe they are honorable people), but to illustrate the absurdity that they would throw away their reputations in a conspiracy to order to obtain a ruling against gay marriage. Think about it, they would have to either enlist phony plaintiffs (which would be a fraud on the court) or mislead real plaintiffs (which would be malpractice) in order to bring the suit in the first place. If their plan is successful, they get to be known as the lawyers who lost an extremely important case (not something that either one takes lightly). If their plan was revealed, they would be disgraced and disbarred.
I realize that as a conservative Republican, Olson is presumed to be dishonest and dishonorable by most of your readers. But Boies is a liberal Democrat, so that should cancel out.
Face it, if someone on the right had put out a theory such as this, you would call them deranged (or worse).
The update by law professor Tobias Wolff in this post at Pam's House Blend is must-read. In light of it, I daresay this case will be before SCOTUS in months, not years.
A. L. --
I have come to enjoy your political and legal analyses since Andrew Sullivan began linking to you.
What typically stands out in your posts is the thorough analysis of the issue at hand -- but in this case, it seems as though you're just wringing your hands and not really analyzing the suit's prospects.
To my mind, there are three key points on which to evaluate: 1) a Court nose count of the Court, which probably means Anthony Kennedy as the swing vote, 2) will there be enough precedents in place in the 2-4 years because this would reach the Court, and 3) what degree of scrutiny the justices would place this issue.
I don't know enough about the law to analyze for precedents and scrutiny, but as the author of Lawrence v Texas, Kennedy would seem ripe for the picking.
What's your take?
MLS,
Fair enough. I wrote this post very quickly during a lunch break (I've been on trial this past week), but your point is taken. I probably should have been more hostile/dismissive of the suggestion that this suit is some sort of cynical ploy to set back the gay marriage movement. That really is a preposterous suggestion.
Oneway,
I hope to provide more thoughtful analysis when my schedule permits it.
okay, here's the intelligent, reasoned discussion i was hoping for. wish i'd found it earlier.
i've been wondering as well, about david's point regarding the lgbt advocacy groups. rare that they would all come together against this, they don't often agree about anything. cynically, isn't it in their "interest" to see this take longer, get dragged out further?
in re: to olsen and ulterior motives, a commenter on my blog put it well, i think:
"no attorney gets to that level without having a killer instinct and extremely competitive nature. no attorney of that stature is going to take a case hoping to lose. losing would be a no-win for him."now matter how "dishonest and dishonorable" some dems automatically think some conservative republicans are, that point seems obvious. (as does mls's – boies cancels olsen out.)my gut tightened up when i heard about boies and olson and this case, not because of their political leanings, but since it seems like the be all to end all.
is this true? what happens if they fail? is marriage equality shut down for years?
It's not so much that they might want to lose, it's that they don't suffer much if they do. Olson returns to his legally recognized wife and continues on his ridiculously profitable career with just a tiny drop in his success rate. I assume Boies is also married from references to his "family".
And I wish people would stop talking about his as though these two men woke up one morning (in different beds, of course) and decided "the time has come". They were HIRED for this job and, like all lawyers with enormous egos, probably think they can win.
This lawsuit scares me to death. Even assuming that there are 4 votes for marriage equality (which I don't assume at all), we KNOW there are 4 votes against it, so it's a big roll of the dice, the dice being Kennedy. And he's a loaded pair of dice, since he's a conservative, moderate compared to the other 4 conservatives, but conservative nevertheless.
To get an idea of what a loss would do, Plessy vs Fergeson settled the question of school segratation (for the worse) for 60 years until Brown overturned it.
Also, it is very preferable for landmark cases on social issues to get unanimous rulings, so that the opponents have absolutely nothing to cling to. Brown was unanimous. Loving v. Virginia was unanimous. This Boise/Olsen suit won't be anywhere near unanimous, it will be 5-4 at best. Which means lots of folk in the country won't accept it and could respond by mounting an effort to pass a Constitutional Amendment banning same sex marriage.
I really fear that it's too early to do this. The state-by-state strategy is finally working, and now we torpedoe that effort for this huge gamble.
But it seems that the community is behind it, so I guess we go forward.
The only reason the state by state strategy is working is because many of the states that have already legalised SSM are low hanging fruit-i.e. liberal Northeastern states, with the laudable exception of Iowa. There are large chunks of the country where that won't be doable.
Using the pro-marriage equality term "state by state strategy" is misleading-while it evokes the Dems successful 50 state strategies of the 2006 and 2008 elections, getting SSM passed in purple-ish states will be a lot tougher than electing Democrats in very anti-GOP years. As California showed, even states that are nominally very blue may have ambivalent feelings about marriage equality.
I think that if you're gonna fault Boies and Olson for their egos, then as was pointed out, LGBT law groups also have a stake in their jobs. However, that overlooks the fact that marriage equality isn't the end all and be all of LGBT rights-especially for trans people.
There are still many hurdles for trans people that have nothing to do with marriage, that pass largely under the radar of leading LGBT organizations.
AL- good for you. Good luck in your trial.
Who cares; let the gays marry already and stop wasting money on this crap.
oddjob, thanks for flagging Professor Wolff's comments. If he is right it will be before the Supremes very soon.
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