When most of us read history, it is from a distance. We were not there, nor do we know anyone who was, and unless we intend to make a study of a period not our own, we are likely to take an author’s account as generally true, with room for interpretation. But sometimes, a serious attempt is made to establish a historical narrative when it happens. The results can be disconcerting.
Such is the case with marriage equality, which is quickly emerging in a number of accounts as a victory achieved by two straight men, Republican Ted Olson and Democrat David Boies, who had the courage to take a case to the U.S. Supreme Court when more-established gay rights organizations were too timid to do so.
This is the story that dominates Jo Becker’s Forcing the Spring, an inside account of Olson and Boies’s lawsuit against California’s Proposition 8, which was widely criticized when it was released earlier this year. And it is repeated in The Case Against 8, a documentary from Ben Cotner and Ryan White, which aired on HBO last night. These accounts reveal more about Olson and Boies’s media savvy than they do about the long fight for marriage equality. And taken in tandem, they risk distorting U.S. history in significant ways.
In her “Note on Sourcing and Other Matters,” Becker writes that “For more than four years, leading up to and throughout the trial and subsequent legal proceedings, I had complete and unfettered access to the plaintiffs and their team.” HBO trumpets The Case Against 8 in similar terms. When the documentary went into production last year, the network announced that “Over the last five years, directors Ben Cotner and Ryan White have had exclusive access to the work of the powerhouse legal team led by Ted Olson and David Boies, as well as the lives of the four plaintiffs in the case.”
Putting aside how “exclusive” such access could have been, and why neither Becker nor Cotner and White note each other’s presence, such allowances ought to have made both writer and filmmakers suspicious about how baldly Olson and Boies were grasping for history. By casting the team who litigated the Proposition 8 case as heroes who stepped into a void ( The Case Against 8) or who boldly cast off the consensus of an ill-defined gay legal establishment ( Forcing the Spring), both the book and film tell a story that is less interesting and less true.
Most significantly, the stories are the same, and Olson and Boies are writing their own account of the trial as well
Becker, Cotner and White all got access to the participants as they prepared for the various phases of trial, but that does not mean they came away with insights into their minds.
Both book and documentary are content to praise Olson for his surprising support of marriage equality, rather than to really explore the roots of his thinking or to plumb what he might want his legacy to be. Much is made of the fact that Olson and Boies opposed each other in Bush v. Gore, but little of the alternative legacy each man might want to build for himself, Boies as a winner rather than a loser, Olson as a man above politics rather than a partisan operative.
In both projects, established gay rights groups are treated as impediments to progress, if they are mentioned at all. In The Case Against 8, Kristina Schake, who finished a stint as Michelle Obama’s communications director last year, says that an outside gay rights group threatened to try to sabotage Olson’s participation. Edie Windsor’s case, the one in which the Supreme Court actually struck down a key part of the federal Defense of Marriage Act, does not get a mention until an hour and forty-nine minutes into the documentary, and then only in closing notes before the credits.
“Forcing the Spring” does a better job of incorporating the Windsor case, but it is more hostile, with little reasoning, to established gay rights groups. Becker suggests that their primary aim was to avoid the courts, without parsing the ways in which gay rights organizations were working to advance their cause through a suite of strategies that included both the brief and the ballot box.
It is certainly fair to acknowledge that Olson, Boies and their team placed a winning bet on their case. But Becker dismisses the rest of the movement’s strategy repeatedly without giving it any particular hearing in the book, fair or not. It seems odd to dismiss the gay legal establishment as any sort of monolith opposed to making change through the courts when Gay and Lesbian Advocates and Defenders filed a marriage equality case in Massachusetts in 2001 and gay couples in Iowa won a marriage equality ruling in 2007, cases Becker acknowledges only briefly.
And Becker does not really weigh the value of a focus on legislation and organizing. A more dispassionate analysis might have granted that this focus was a reasonable response to a wave of constitutional amendments in response to court cases advancing gay rights. It also would prove a necessary hedge to protect positive court decisions when they did arrive, something Becker mentions briefly in an explanation of Chad Griffin’s tenure at the Human Rights Campaign.
She also might have noted that it took a certain amount of privilege for Olson and Boies to take the gamble that they did, leeway that is not available to gay rights organizations. Had the two lawyers taken the Proposition 8 case to the Supreme Court and failed, the impact might have been catastrophic for gay and lesbian couples, but both men would have been able to continue practicing law without facing devastated constituencies and professional exile.
And neither project, as might have been expected from a book and film focused on the Proposition 8 decision rather than the larger marriage equality movement, has much to say about California. In The Case Against 8, plaintiff Sandy Stier explains her disbelief that the initiative passed, and Olson expresses his disappointment, but the movie never goes beyond these surface reactions.
Becker repeats the oft-cited figure about African-American opposition to marriage equality, crediting a turnaround in public opinion to President Barack Obama’s change of heart. It is disappointing that a journalist of her caliber did not at least acknowledge the statistical analysis that suggests that Proposition 8 voting had more to do with age than race.
Like Andrew Sullivan and other dissenters to this emerging narrative, I know some of this, because in a small way, I was there. I interned for Freedom to Marry Massachusetts in the summer of 2003.
During those months, Freedom to Marry was waiting for a ruling in Goodridge v. Department of Public Health. That time was not spent idly. Freedom to Marry mobilized its supporters to thank the U.S. Supreme Court after the justices struck down sodomy laws in Lawrence v. Texas in late June, then turned its focus to the state Supreme Court. In the advent of a successful ruling, Freedom to Marry would have to defend a marriage equality decision in the legislature at a state constitutional convention.
Gay couples did win in Goodridge, and marriage equality opponents did try to undo the decision. The fight to preserve this small win is not the sort of thing that engages either The Case Against 8 or Forcing the Spring, which acknowledges these sorts of bitter battles only briefly. It was not until 2007, almost four years after Goodridge, that the last attempt to amend the Massachusetts constitution to exclude gay couples from the institution of marriage failed.
The reason that the United States’ movement toward marriage equality is so remarkable is not because a small group of men and women decided that the time was now. It involved every branch of both the federal and state governments and courageous decisions by individuals in public service and private life. This tipping point came about because people like Freedom to Marry founder Evan Wolfson and intellectual leaders like Sullivan and Jonathan Rauch worked so hard to push a once-impossible idea up a very steep hill, and because others came on board to push it over the peak with them.
The story that is gaining momentum may enshrine Olson, Boies and their compatriots on the rolls of history. But in the process, it diminishes the remarkable movement they joined and the astonishing accomplishment that so many Americans — from the visionary activists who were there in the beginning to those who joined the great tide of equality-minded sentiment — have been a part of.