The Mainstreaming of Marriage Equality

Published in: March-April 2015 issue.


Redeeming the Dream: The Case for Marriage Equality
by David Boies and Theodore B. Olson
Viking. 310 pages, $28.95


IN NOVEMBER 2008, California voters passed Proposition 8, which would amend the State’s constitution. By a vote of 52 to 48 percent, the electorate snatched away from same-sex couples the right to marry that they’d been granted six months earlier by the State Supreme Court. Lawyers David Boies and Theodore Olson filed a federal suit, arguing that the amendment was unconstitutional and that marriage rights for same-sex couples must be restored. Their suit made headlines everywhere, in good part because the two attorneys formed a most unlikely duo.

Nine years earlier, the liberal Boies and the conservative Olson had faced off in front of the U.S. Supreme Court over the high-stakes question of whether there should be a recount of Florida’s hotly contested votes in the 2000 presidential election. When Olson was victorious over Boies, the recount was halted and George W. Bush, reliably right-wing on all LGBT issues, became president of the United States. (Bush thanked Olson by naming him solicitor general.) But as Olson explains in Redeeming the Dream, he regards himself as a free-market kind of conservative, favoring less government—and same-sex marriage, which is, after all, a voluntary contract between two parties.

Redeeming the Dream traces how he and David Boies moved from being adversaries to being friends, how they were hired by the newly formed American Foundation for Equal Rights to lead the court fight against Proposition 8, and how they again argued a case in front of the U.S. Supreme Court, this time on the same side. Their purpose in writing the book, they say, was not only to tell that story but also to explain their own thinking on the marriage equality issue, hoping “to persuade more and more Americans to join us in achieving the ultimate goal that brought us together in this case.” With such a high-profile conservative as Theodore Olson co-authoring the book, Redeeming the Dream may indeed have some power to reach a demographic that has been slow to see the justice of marriage equality.

But the book’s focus on the fight against Proposition 8, which has already been discussed in great detail by Jo Becker in Forcing the

Ted Olson and David Boies wearing “politically correct” tie colors.
Ted Olson and David Boies wearing “politically correct” tie colors.

Spring: Inside the Fight for Marriage Equality (published two months before Redeeming the Dream), offers little else that is new. And like Becker’s book, Redeeming the Dream exaggerates the larger impact of the Proposition 8 case and doesn’t give enough credit to earlier battles that made possible the rapid progress in the legalization of marriage equality.

Olson and Boies tell how in the U.S. District Court they vanquished the Prop 8 supporters who claimed that gays and lesbians didn’t need marriage because they had domestic partnerships, which gave them all the rights of marriage: “It was akin to declaring that citizens of Chinese ancestry could have legal rights but could not call themselves U.S. citizens,” Olson and Boies countered. They showed that the powers behind Prop 8 were motivated by animus, and that what their witnesses presented as facts were mere prejudices that couldn’t stand up under scrutiny. They made those witnesses admit that gays and lesbians had a potential for long-term loving relationships no different from those of heterosexuals. They argued that deeming same-sex relationships unworthy of recognition opened gays and lesbians to discrimination and harassment and caused them “immeasurable harm”; that no overarching social good was achieved by denying them the right to marry; that Prop 8 violated the Constitution by creating a second-class status, based—like race—on an immutable characteristic; and that, in California, convicted murderers and child molesters had the right to marry, but even the most upstanding gay or lesbian citizen had no such right.

Olson and Boies report that when the federal judge who heard the case, Vaughn Walker, asked the attorney on the Prop 8 side, Charles Cooper, how it would harm opposite-sex couples if same-sex couples were allowed to marry, Cooper made several attempts to dodge the question. But Judge Walker wouldn’t let him slip out of it. Finally Cooper was forced to respond, “Your honor, my answer is, ‘I don’t know. I don’t know.’” That, together with Olson and Boies’ legal smarts, clinched it. Judge Walker declared that the civil rights of the two couples represented in Perry v. Schwarzenegger had been violated and that Proposition 8 was unconstitutional.

But Prop 8 proponents weren’t giving up yet. When they learned that Judge Walker was himself gay, they tried, unsuccessfully, to get his ruling overturned; they also tried to get California’s liberal Attorney General Jerry Brown, who became governor in 2011, to appeal Judge Walker’s decision. Instead, Brown filed a brief arguing in favor of overturning the amendment that prohibited same-sex marriage. Prop 8 proponents then pursued an appeal on their own, all the way to the U.S. Supreme Court, where it became Hollingsworth v. Perry.

Olson and Boies argued to the Supreme Court that the Prop 8 proponents had no “standing”: Hollingsworth et al. couldn’t show how the marriage of same-sex couples would hurt them personally, and therefore they had no right to bring the case to court. In an odd-bedfellows vote—with Justices Ginsburg, Kagan, Breyer, Roberts, and Scalia on one side, Kennedy, Thomas, Alito, and Sotomayor on the other—the Court agreed with Olson and Boies. The lower court decision was thus validated, and same-sex marriages were resumed in California two days later.

Olson and Boies declare in their book that the Supreme Court opinion “gave us and the country a victory that would echo throughout history.” Their claim is overblown. The decision reaffirmed that same-sex marriage must be permitted in California—but by the time of the decision, same-sex marriage was already legal in twelve states and the District of Columbia. The case that was a genuine victory for same-sex couples all over the country, and will surely echo throughout history, was heard by the Supreme Court the day after Olson and Boies presented oral arguments in Hollingsworth v. Perry. That case—to which Redeeming the Dream devotes less than a dozen pages—is United States v. Windsor. The Supreme Court’s decision in favor of Edie Windsor, who’d been stuck with a $363,000 estate tax bill after the death of the woman to whom she was considered legally married by the state of New York, overturned the most crucial section of the Defense of Marriage Act: the Court declared that the federal government must recognize any same-sex marriage that is recognized by a state government. Now that is a story truly worthy of a book or two.


Lillian Faderman’s forthcoming book, The Gay Revolution: The Story of the Struggle, a history of the LGBT civil rights movement, will be published by Simon & Schuster in September 2015.