Part 1 in this series was published earlier on SCOTUSblog.

Part #2: Progress v. Backlash

–"We knew everyone wouldn't agree with us and we're okay with that."
Political strategist Chad Griffin

The Polo Lounge at the famed Beverly Hills Hotel was a fitting place to hatch the grandiose idea. Long a premiere spot of brokered and broken Hollywood movie deals, the group of friends dining that afternoon in November 2008, combined the chutzpah and Hollywood credentials to turn a fantasy into a dramatic narrative.

Still bitter over the passage of Proposition 8, Chad Griffin commiserated with director Rob Reiner, and his wife Michelle, about what course to take now.  LGBT groups believed they could win the same-sex marriage vote in California in two years, but Griffin had no patience for that strategy.  He wanted something big and bold.  Still, what was the right next step to secure marriage equality? One of the other guests had a suggestion–why not call my brother-in-law, Ted Olson.

"Entertainment industry people tend to have a very go-for-it-attitude," Milk producer Bruce Cohen told California Lawyer. "If you have a big, huge idea and you've got the right people and have all the pieces in place, "Oh my God, let's go for that.' And that's really what this case is."

Within two weeks, Ted Olson had signed on to lead the federal challenge that became Perry v. Schwarzenegger, and David Boies soon joined the team.  The high-profile pairing made an irresistible national story, and with such a conservative stalwart as Olson on board, the message to Americans was clear:  "Marriage equality is not a partisan issue but one that impacts everyone," says Griffin.

The news did not sit well with other conservatives.  "I don't think Ted Olson is a conservative," says Brian Brown, executive director of the National Organization for Marriage.  "To say that you're conservative and yet want to strike at the heart of the foundation of civil society, which is the nature of marriage, is simply not a position that is at all tenable. To say one is conservative and then to state that judges have the right to redefine marriage is just plain wrong.  The notion that somehow his position represents conservatives is just silly. He's one individual who has chosen to undermine the constitution and democratic process."

The Olson-Boies coup came with a steep price tag. They would work on a hybrid fee arrangement–part pro bono, part hourly fee. Being among the most expensive lawyers in the country, millions of dollars would have to be raised to support the Perry litigation. Rob Reiner leaned on several of his wealthy billionaire friends who donated $5 million in seed money to get the group's newly formed American Foundation for Equal Rights up and running.

From the sidelines, many in the LGBT legal community worried that the aggressive fundraising for marriage equality put AFER in direct competition with funding needed for other movement efforts, such as employment and housing discrimination, HIV patient support and foster homes for LGBT youth. And there was a serious question about which effort had the greater capacity to make the daily lives of gay people better.

"Many of us believed, from the small margin of Prop. 8’s passage," explains Jennifer Pizer, Senior Counsel of Lambda Legal, "that we could win a repeal fight in California in just a couple of years with a concerted educational effort engaging the many newly emerged activists.  It sends a very different message when equality for a vulnerable minority is approved by popular vote, rather than imposed by a court contrary to popular opinion.  Of course, that’s what our Constitution and courts are for.  But, many people thought federal litigation was riskier than it was sensible, especially before this Supreme Court, which has taken multiple hard-right turns in recent years, up-ending long-settled law along the way."

At the same time, Pizer adds, "bold up-ending of at least some restrictions might be just the ticket in this case.”

The AFER group believed established gay rights organizations had become saddled with diminished expectations. "You don't ask for less," award-winning screenwriter and AFER board member Dustin Lance Black told the Hollywood Reporter, "and I think that's what other organizations have been doing over the past decade and a half.  It's what needed to stop."

To other gay rights groups, the tragic suicides of ten gay teens in the last three months are a reminder of the need for prudence. "It's true that with every social justice struggle," says Kate Kendell, NCLR's executive director, "as you make gains, those who are intransigent about your progress will fight back so there's a backlash to gains you make. When you have this national discourse as we definitely do now it emboldens both LGBT people to be more visible and also emboldens those who either out of fear, ignorance, or just bigotry can't abide by our gains."

Adds Pizer: “A concern is how quickly can we move forward without spinning off the track. What's the maximum speed we can sustain without backlash and still hold on to our successes?"

A vigorous debate ensued over the wisdom of bringing a federal challenge now. "Anytime you're trying to move civil rights forward there's going to be potential for defeats," Ted Olson told me.  "The same arguments were made to Martin Luther King, Jr., and proponents of civil rights in the fifties and sixties felt they couldn't stand by and wait for the occasion when someone would tell them that they were going for sure to win."

LGBT movement lawyers, meanwhile, determined to retain some control of the direction marriage equality took, attempted to intervene in the Perry case. Chad Griffin adamantly expressed his objection in a prickly July 2009 letter:

On behalf of the plaintiffs and our board, donors and supporters, I am writing to ask that you do not intervene in Perry v. Schwarzenegger.

Given our willingness to collaborate with you, and your efforts to undercut this case, we were surprised and disappointed when we became aware of your desire to intervene.

You have unrelentingly and unequivocally acted to undermine this case even before it was filed. In light of that, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening. Therefore, we will vigorously oppose any motion to intervene."

Today, Griffin downplays the letter. "I'm a political strategist," he told me, "and I'm used to strategic disagreements with my friends who I love, trust and respect, and to me, that's what that was.  There were people who simply disagreed with our strategy and I very forcefully made the case why this was the right decision. We executed this case with as close to perfection and precision as possible.  And I was not going to let anything undermine that.  But again, this is water under the bridge now. We quickly agreed to disagree and moments after that we were all on the same page and working together."

Déjà vu permeates these debates. The same issues divided civil rights lawyers in the fifties as they explored ways to mount a challenge to racial segregation in the Topeka public school system. "There was a big argument within the NAACP in these school cases," recalled Roger Wilkins in a 2004 documentary about Brown v. Board of Education. "Shouldn't we just go for equalization? Because if you go straight to the Supreme Court, if you lose, the whole program of litigation relying on the 14th Amendment is gone.  The other side said: "ultimately separate but equal is a non sequitur. And it's the separation that's killing our kids.'"

A chief architect of the Brown litigation, federal judge Robert Carter recalled: "I thought there was a possibility we would lose. There were a number of people, of course, who thought "oh, no, you're going too far, you're going to be set back. But I knew we weren't going to get beyond the status quo where we were and I was prepared for that. And I was prepared for victory, too. "

As LGBT lawyers fear with Perry, Carter worried that the public, especially Southerners, "were not ready for such sweeping change and those who were meant to benefit from the ruling might suffer consequences."

Perhaps President Eisenhower had it right, then and for now, when he said: "I think we ought to all of us work at this but the real answer here is in the heart of the individual; just law is not going to do it. We have never stopped sin by passing laws and in the same way, we are not going to take a great moral ideal and achieve it merely by law."

Posted in Cases in the Pipeline, Featured

Recommended Citation: Mary A. Fischer, Special feature: California’s Proposition 8 appeal (Part 2), SCOTUSblog (Dec. 5, 2010, 7:24 PM), http://www.scotusblog.com/2010/12/special-feature-california%e2%80%99s-proposition-8-appeal-part-2/