Redeeming the Dream

Frederick Hertz reviews the new book by David Boies and Theodore Olson.

The narrative of marriage equality in California is as much a lecture in civil procedure as it is in constitutional law or sexual politics. The story of the rise and demise of Proposition 8 encompasses many core legal ingredients: the initiative process, state versus federal court jurisdiction, the place of morality in family law, cameras in the courtroom, and surprisingly, the importance of "standing."

It's a drama filled with unexpected turns - starting with then-Mayor Gavin Newsom's 2004 ill-fated attempt to authorize same-sex marriages in San Francisco, followed by the California Supreme Court's landmark 2008 ruling legalizing gay marriage (In re Marriage Cases, 43 Cal. 4th 757 (2008)). Then a few months later, with the passage of Proposition 8, an unpredictable course of events unfolded. When the California high court lost its mooring in 2009 and upheld the constitutional ban on same-sex marriage, long-time gay activist lawyers elected not to pursue a federal court challenge, only to be upstaged by a newly formed organization, the American Foundation for Equal Rights (AFER) unafraid to take on the Supremes. It featured a cast only a screenwriter could make up: David Boies of Boies Schiller & Flexner and Ted Olson of Gibson, Dunn & Crutcher represented the plaintiffs, and by chance the case was randomly assigned to a gay district judge, Vaughn R. Walker. Rounding out the list: two successive California governors who refused to defend the initiative.

Boies and Olson have teamed up to tell the inside story of the Prop. 8 trial and appeals, and it's riveting. The details will delight: Big law firms, political egos, endless press attention, and a passionate sense of mission are front and center, and the descriptions of witness preparation, appellate strategizing, and insider disclosures are bound to fascinate everyone who cares about the debate.

That's what is good about this book. What is less appealing is the authors' overflowing narcissism. (Admittedly, I'm pleased these big-shot straight guys care about my community - especially when one of them is a Republican with a stellar government pedigree.)

Painfully ironic as it was for attorneys who'd labored in these trenches for decades, it's no accident that it was the newly formed AFER that was able to raise big bucks and recruit prominent attorneys who could put on a trial that clinched a result that probably was inevitable. But would the outcome have been any different if gay advocates had led the charge? Perhaps it did take a posse of outsiders not worn down by the passage of Prop. 8 and not intimidated by the prospects of losing at the U.S. Supreme Court. But the implied message of the book - that same-sex marriage wouldn't have happened in California without Boies and Olson - detracts from an otherwise compelling narrative.

The book's other shortcoming is its lack of depth and an absence of full disclosure. The authors tell us that their conservative friends criticized them - but not enough about who said what and when. We learn that most of the legal team's services were donated but the challenge still cost a lot of money - yet we aren't told how much, or where the donations came from. It's apparent that press coverage of the case was vital to the shift in popular opinion, yet we aren't told how the authors or AFER garnered the stories that really mattered. And they simply ignore the negative consequences of the Supreme Court's ruling on standing for other progressive causes, and gloss over the legal irony that same-sex marriages were allowed to resume without the Court ever issuing a substantive decision.

Every chapter offers a fine introduction to the key issues, but the authors seem to have dropped their deeper insights, and the best of the details, on the publishing-room floor.

Frederick Hertz is an attorney-mediator and author of Making it Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions (Nolo 2014).

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Kari Santos

Daily Journal Staff Writer

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