.The New War Over Gay Marriage

A Berkeley couple teams up with a Bush lawyer to fight Proposition 8 in federal court, while opponents fixate on politics and polygamy.

When a lesbian couple from Berkeley filed suit in federal court last
month to overturn Proposition 8, some prominent gay-rights activists
questioned the timing of the case. Critics said that the US Supreme
Court was not ready to embrace same-sex nuptials. After all, the
California Supreme Court, which is more liberal than its federal
counterpart, had just voted to uphold the anti-gay marriage amendment.
But a closer look at the lawsuit filed by Kris Perry and
Sandy Stier reveals that they have a stronger case than many
realize, while their opponents appear to be focused on political scare
tactics.

Perry and Stier, along with their co-plaintiffs, Paul Katami
and Jeffrey Zarrillo, a gay couple from Los Angeles, also have a
powerful ally. Their main lawyer is Ted Olson, a staunch
conservative who is considered one of the top constitutional scholars
in the country. Olson, who is straight, served under President
George W. Bush as the US solicitor general. In that role, he
represented the Bush administration and successfully argued numerous
cases in front of the US Supreme Court, and so is well aware of its
political leanings and its judicial philosophies. He also represented
Bush in winning the infamous case that decided the 2000 presidential
election — Bush v. Gore.

But Olson also is a civil libertarian who believes that denying gays
and lesbians the right to marry is wrong. In Perry and Stier’s lawsuit,
which Olson authored, he argues that Prop. 8 violates the US
Constitution’s ban on discrimination and disparate treatment. The
Berkeley couple also is represented by David Boies, a prominent
liberal attorney, whom Olson asked to be his co-counsel, thereby giving
the case bipartisan credibility. Boies was the lead lawyer for Al
Gore
in Bush v. Gore, and so has first-hand knowledge of Olson’s
considerable skills. One of Olson’s strengths is his ability to frame
an argument simply and powerfully.

That skill is on display in Perry and Stier’s lawsuit. “As a result
of Prop. 8,” Olson wrote in the straightforward, ten-page filing,
“plaintiffs are barred from marrying the individual they wish to marry
and are instead left only with the separate-but-unequal option of
domestic partnership.” In one short sentence, Olson managed to make
Prop. 8 sound downright un-American, while at the same time referencing
one of the most important US Supreme Court cases in history —
Brown v. Board of Education, the 1954 landmark decision that ordered an
end to segregated, “separate-and-unequal” schools.

Indeed, Olson has framed Perry and Stier’s case as a historic civil
rights battle, akin to Brown or Loving v. Virginia, the 1967 Supreme
Court ruling that ended state bans on interracial marriage. As a
result, the case is far different from the recently decided state
challenge to Prop. 8, which centered on the narrow question of whether
a simple majority of voters could amend the state’s constitution to
eliminate the rights of a minority. Perry and Stier’s lawsuit by
contrast, is a broad, sweeping assault on all same-sex marriage bans,
using Prop. 8 as its primary target. It contends that the measure
illegally discriminates against gays and lesbians and unlawfully denies
them their constitutionally protected right to liberty and happiness in
violation of the Fourteenth Amendment’s Equal Protection and Due
Process clauses. And because it’s a federal case, it will not only
legalize gay marriage in California if it wins, but will make same-sex
nuptials legal throughout the nation.

So how did Perry and Stier get involved in the case? The two
declined to be interviewed, saying they were not yet ready to go public
with their story. But a little sleuthing revealed that their
involvement appears to be linked to their relationship to the true
backers of the lawsuit, gay-rights activist and political operative
Chad Griffin and film director Rob Reiner, whose hit
movies include When Harry Met Sally and The Princess
Bride
.

Griffin and Reiner have been friends since the mid-1990s, when
Griffin worked in the Clinton White House and Reiner was researching
his film, The American President. The two recently created a
nonprofit, the American Foundation for Equal Rights, which is
sponsoring the lawsuit, and sit on its board. Other board members
include Bruce Cohen, co-producer of the Academy Award winning
film Milk, and Dustin Lance Black, who won an Oscar for
writing the Milk screenplay.

As for Perry, she is executive director of First 5 California, a
Sacramento-based foundation created by Reiner that distributes
tobacco-tax funds to childcare and educational groups and
organizations. The funds come from the Reiner-sponsored 1998 state
initiative Prop. 10. Perry has headed up First 5 California since 2005.
According to sworn statements that she and Stier filed with the court,
they have been together since 2000 and have raised four sons in
Berkeley, the oldest of whom is now in college, the second oldest is
entering college, and the two youngest are beginning high school this
fall.

Perry and Stier said in the statements that they originally got
married on February 21, 2004 at San Francisco’s City Hall just after
Mayor Gavin Newsom began marrying same-sex couples. “In August
of that same year, we renewed our vows in a large celebration with our
friends and family,” Perry wrote. “Over 100 guests attended. Our
beautiful children were in the wedding party. It was one of the
happiest days of my life.” But Perry said she and Stier were devastated
when the state Supreme Court invalidated their marriage later that
year. She said they intended to wed again when the high court legalized
gay marriage last year, but then decided to wait until the Prop. 8
fight was settled. In preparation for the lawsuit, they applied for a
marriage license last month with the Alameda County Clerk-Recorder’s
Office but were denied because of their sexual orientation.

In an interview, Griffin said his organization chose Olson after an
acquaintance suggested that the Bush lawyer was on their side and was
ready to take up the cause of gay marriage. “That was shocking to me,”
said Griffin, who also helped lead the political campaign last year
against Prop. 8. “Ted Olson was someone I’ve loved to hate from afar. I
blamed him for the torturous eight years of George Bush.” But Griffin
said that while meeting with Olson late last fall, he quickly decided
that having the lawyer who won Bush v. Gore lead the federal
same-sex-marriage fight could be a game-changer. “About halfway into
our meeting,” Griffin said, “I realized I was seated across from
someone who is one of the grandest, most articulate advocates for gay
marriage that our movement has ever seen.”

As for the argument by some gay and lesbian activists that it’s too
early to take the case to federal court and that it’s better to fight
for gay marriage politically, one state at a time, Griffin pointed to
the long list of civil rights victories won in courtrooms over the
years. If others had waited for society to finally accept their causes,
it might have taken decades longer to desegregate schools or allow
people of different races to intermarry. “The time is now, because
people are suffering today because of Prop. 8,” he said. “I’m not
willing to wait another ten to twenty years for equality.”

Griffin also described the struggle for gay rights as a “war” that
should be fought “aggressively on all fronts.” One of those fronts is
film. Griffin also was an executive producer of Outrage, a
recently released documentary that exposed the hypocrisy of closeted
gay politicians who have fought against gay rights over the years,
including Larry Craig, the former Republican US senator from
Idaho who was caught trying to solicit sex from a male cop in a men’s
restroom.

The lawsuit against Prop. 8 names Governor Arnold
Schwarzenegger
and state Attorney General Jerry Brown as the
main defendants in the case. But neither is expected to mount much of a
defense. Instead, it will be the anti-gay-marriage Prop. 8 proponents
— the Alliance Defense Fund — who will battle Olson and
Boies. In an interview, one of the Alliance Defense Fund’s attorneys,
Joseph Infranco, described the lawsuit as being “radical” and
believes that the definition of marriage is an issue best left up to
the states. He also argued that the US Supreme Court would not overturn
the will of the people. “I don’t believe the court will disregard a
substantial majority of Americans and constitutions of thirty states,”
he said, referring to the states that, like California, only recognize
heterosexual marriage.

But predictions aside, the anti-gay marriage folks appear to be
short on solid legal arguments and fixated on politics and spin —
at least so far. For example, during our interview, Infranco chose not
to directly respond to Olson’s Due Process or Equal Protection
arguments, and instead argued that allowing gays to marry represents a
slippery slope that will ultimately lead to the legalization of
polygamy. “Once marriage can be redefined in one way, it can be
redefined in other ways,” he said.

To most gays and lesbians, the polygamy argument is an offensive
canard designed to demonize them, scare heterosexuals, and confuse
people about what will happen if gays are allowed to marry. “It just
shows how weak their arguments are,” said Ted Boutros, one of
Olson’s legal partners. “There are no decisions by the Supreme Court,
or any other court, that would support the polygamy theory that the
Prop. 8 proponents keep peddling.”

The polygamy argument also is an attempt to define what this case is
about. The anti-gay-marriage folks want the focus to be on gays and
lesbians trying to “redefine marriage.” It’s an argument they know
sells in Middle America where people are resistant to changing
established institutions. Along the same lines, they’re attempting to
portray gays and lesbians as seeking new rights for themselves that if
granted will open the door to others who want new rights, too,
including polygamists.

But from Olson’s point of view, gays and lesbians who want to marry
are not seeking some new right; they’re simply asking to be treated
like heterosexuals. And because Prop. 8 prevents that, it violates the
Fourteenth Amendment of the US Constitution. In other words, gays and
lesbians aren’t seeking to “redefine marriage,” or expand it so that it
someday will include polygamists. They’re merely asking to marry the
person of their choice — just like heterosexuals. “Our clients
want the same rights that everyone already has,” Boutros said. “A
polygamist would be asking for a right that no one has.”

At this point, it looks as if the battle over whether gays and
lesbians should be treated equally under the law or whether they’re
attempting to “redefine marriage” may dominate the case. The first
significant court hearing is scheduled for July 2 in San Francisco
federal court. Perry and Stier are asking for a preliminary injunction
that would prohibit Prop. 8 from taking effect. That may be a long
shot, but the case ultimately appears headed for the US Supreme Court,
regardless of the initial outcome.

Right now, there seems to be two solid votes on the high court
against gay marriage. In the 2003 case Lawrence v. Texas, Justices
Antonin Scalia and Clarence Thomas voted to uphold a
Texas law that made gay sex a felony. But how the two other
conservative justices, John Roberts and Samuel Alito,
will vote is less certain. Roberts, in particular, may be attracted by
Olson’s equal-protection argument, because he is a staunch opponent of
discrimination. And as for the swing vote, Justice Anthony
Kennedy
, gay rights supporters have to be heartened by the fact
that he authored the majority decision in Lawrence. And that he sided
with the four liberal justices and wrote the majority opinion in
another gay rights case, Romer v. Evans, in 1996.

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