As the gay marriage movement blossoms across the country, it’s become the civil rights triumph of our era — a big, beautiful story. Which explains, I suppose, why the fight over how to tell it has already begun.
David Boies and Ted Olson are the superstar lawyers who won the case that brought gay marriage to California last year. To chronicle their work, they let New York Times writer Jo Becker (along with an award-winning photographer and an HBO film crew for a documentary out this month) follow them daily. Becker’s book Forcing the Spring treats the California case as the only gay-marriage story worth telling, shortchanging the work of the activists, thinkers and lawyers who preceded them for almost two decades.
In case you missed the self-serving point, Boies and Olson have now published their own book. It’s called Redeeming the Dream, and that is exactly how Boies and Olson cast themselves, as the twin redeemers who saved gay marriage from the veteran lawyers in the field who had the temerity to disagree with them on strategy. Never mind that the litigators were the ones whose handiwork has led judge after judge to strike down 14 state bans on gay marriage in less than a year. (In 10 of those cases, appeals are pending.) That fact is being steamrolled out of existence by Boies and Olson — who were paid $6.4 million for their work — and their giant PR machine.
Let’s start, as lawyers like to, by stipulating to agreed-upon facts. Boies is one of the best trial attorneys in the country, and Olson is one of the best Supreme Court advocates. They argued against each other in Bush v. Gore (Olson for the Republicans and Boies for the Democrats). When they came together to put California’s gay marriage ban on trial in 2010, at the behest of activist Chad Griffin and Hollywood director Rob Reiner, Boies and Olson had an odd-couple act with instant appeal. And at the trial in San Francisco, they shredded the rationale for California’s ban, Proposition 8, exposing the arguments used to justify it as bigoted and outdated.
In the best part of their book, Boies and Olson expertly skewer the weaknesses and backtracking of their opponents’ key witnesses. Prop 8’s defenders lost big and fell hard. Lead counsel Charles Cooper famously blurted, “I don’t know. I don’t know,” in response to a question about how same-sex marriage would harm the traditional opposite-sex version of the institution. Under cross-examination, expert witness David Blankenhorn agreed that “we would be more, emphasize more, American on the day we permitted same-sex marriage than we were on the day before.”
Boies and Olson observe that sometimes “a trial is important to prove what everyone at some level already knows.” They may well be right that their case, Hollingsworth v. Perry, helped change minds. But nowhere in this book will you learn that Perry was not the foundational legal challenge to gay marriage or even the most important gay marriage case to go to the Supreme Court in 2013. That status goes to United States v. Windsor, argued by Roberta Kaplan and the culmination of a painstaking, decade-long strategy crafted by veteran gay litigators like Mary Bonauto and Evan Wolfson. Here is the truth that Boies and Olson’s hubris threatens to obscure: The gay marriage movement did not need two straight lawyers to come to its rescue.
There were two parts to the strategy of Bonauto, Wolfson and their colleagues. First, they emphasized pushing for gay marriage at the ballot box, so that the drive for equality would take root among voters. Boies and Olson say that back in 2009, when they decided to take the California case, no such election had been won.
Since then, three states have legalized gay marriage by popular vote, and seven states plus the District of Columbia have done so with legislation. This work is turning marriage equality into a democratically shared value, as the swiftly rising polls show.
Meanwhile, gay-rights litigators took a deliberately incremental approach in court. Their claim in Windsor was that the 1996 federal Defense of Marriage Act was unconstitutional, as a matter of states’ rights as well as equality, because it denied federal benefits (like a break on inheritance taxes) to gay couples whose states had already given them the right to marry.
Windsor is Perry’s plain sister, the unsexy one who gets things done. Last June, exactly as its strategists hoped, the Supreme Court struck down DOMA. On paper, the ruling applied only in states that had legalized gay marriage. But writing for a majority of five, Justice Anthony Kennedy made rousing statements about equality and dignity. In the months since, judge after judge has relied on those stirring sentences to strike down same-sex marriage bans in the 14 additional states.
Boies and Olson also won at the Supreme Court, and their victory is no small thing. Because of it, gay marriage became legal in California. But the Supreme Court based its decision on a technicality, saying that because California and its attorney general had declined to defend Prop 8 on appeal, the appeal itself was invalid. That’s why it’s the ballot box plus Windsor, not Perry, that matters nationwide for the future.
Boies and Olson are understandably proud of the role they played. For that, who can blame them? But it’s patronizing and completely wrong to insinuate that they got the strategy right while the movement got it wrong. And it is just asking for trouble to exaggerate their own importance at the expense of Bonauto, Wolfson and all the gay-rights groups and activists who stood with them. Where is their book? As the writer E.J. Graff points out, it has yet to be written. Enough already with the credit-hogging straight version of gay history. I want to read the story about gay marriage that gay parents will tell their children.
Emily Bazelon reviewed this book for The Washington Post.