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Lessons from the Jo Becker Gay Marriage Book, Part 2: Two Edges of the Same Sword

BeckerBY LISA KEEN

Part One of Lisa Keen's look into Forcing the Spring appeared on May 6. Read it HERE.

May 14, 2009. Hollywood producer Rob Reiner and his wife Michele hosted a lunch to talk about a lawsuit they were supporting to challenge Proposition 8, California’s ban on same-sex marriage. At the table with them were public relations business partners Chad Griffin and Kristina Schake and openly gay Hollywood producer Bruce Cohen. Except that actor Dustin Lance Black was absent, this was the entire board of the one-month-old American Foundation for Equal Rights (AFER).

Gibson, Dunn & Crutcher partner Ted Boutrous was there, representing his colleague, the well-known conservative attorney Ted Olson, who had been engaged to lead the litigation. But Boutrous was not just a stand-in. He was a crisis management strategist, veteran appeals court advocate, and an expert in media affairs. He would be one of the legal team’s top attorneys.

DavidsonTheir guests were two attorneys from the nation’s oldest national LGBT legal organization, Jon Davidson (right) and Jenny Pizer, and two attorneys from the Southern California chapter of the ACLU, Ramona Ripston and Mark Rosenbaum. Davidson was national legal director for the 36-year-old Lambda, the group that helped win the Romer v. Evans case which many believe paved the way for later LGBT victories when the Supreme Court declared that laws disfavoring gay people cannot be justified by animus. Pizer represented Lambda as co-counsel on the in re Marriage Cases that won the May 2008 ruling from the California Supreme Court that allowed 18,000 same-sex couples to marry until voters changed the state constitution that November. Ripston was executive director of the southern chapter, an attorney whom the Los Angeles Time had recently named one of the “100 Most Powerful People in Southern California.” Rosenbaum, too, had racked up considerable kudos since joining the chapter staff in 1974.

According to Jo Becker’s Forcing the Spring, Rob Reiner started things off by giving the guests a synopsis of the AFER group’s discussions and then Boutrous said that Ted Olson had been engaged to lead the lawsuit.

“Someone is going to bring a federal marriage lawsuit,” Boutrous said, according to Forcing the Spring. “And you won’t find a better advocate than Ted Olson.”

Given Olson’s well-known conservative ties and activities, it was a bold statement. And Becker’s account states that the Lambda and ACLU attorneys interrupted Boutrous with a “cacophony of criticism that grew increasingly heated.” She said they complained that Olson wasn’t “one of them.” They characterized Griffin and his pals as “upstarts who didn’t know what they were doing.” And they echoed a point respected gay legal activist Paul Smith had already made directly to Olson: that if a lawsuit were brought too soon, it could set the LGBT civil rights movement back for decades.

Tempers flared and, according to Becker’s book, Lambda’s Davidson “threw a multi-page dossier on the dining room table, outlining all the conservative causes Olson had championed over the years. This, and more, would be released to the media if they went ahead with their ill-fated plan, he threatened.”

CONTINUED, AFTER THE JUMP...

Schake“Do it,” shot back Griffin’s public relations partner, Kristina Schake (right). Griffin tried to explain how having a conservative attorney would “move public opinion.” But the meeting, wrote Becker, “abruptly ended on that angry note.” And Michele Reiner pronounced the meeting a “disaster.”

Davidson says he doesn’t remember the meeting being the angry drama Becker paints. Neither does his Lambda colleague Pizer.

“We did not treat those present at the meeting who were affiliated with AFER as ‘upstarts,’” nor did it “end abruptly” or on any “angry note,” said Davidson. And the idea that Davidson would throw a dossier down on the table and make threats, he said, is “inaccurate.”

“That is not who I am.”

Davidson recalled that, “after the meeting was concluded, the Reiners, Chad Griffin, Ted Boutrous, and Bruce Cohen walked with us outside as we headed back to our cars and we all shook hands and said pleasant goodbyes.”
“We left the meeting with an agreement to talk further,” said Davidson, “and there were additional conversations between us and some of those affiliated with AFER who were present at the meeting between then and the filing of the suit.”
Pizer characterized the meeting as “very cordial and friendly.” 

“They seemed disappointed that we weren’t enthusiastic about their plan,” said Pizer. “Chad did, too. And maybe a little frustrated that we expressed skepticism about the Supreme Court’s likely willingness in the very near term to strike down 30 newly enacted state constitutional marriage amendments with a gay version of Loving v. Virginia.  But none of the interactions seemed angry or hostile.”

But the difference in strategy was significant. Lambda, the ACLU, and seven other major LGBT legal and political organizations released an “open letter” on May 27 –five days after the AFER-Olson lawsuit was filed— warning against “premature lawsuits,” propelling the behind-the-scenes conflict –however large or small-- into public view.

"There is a very significant chance that if we go to the Supreme Court and lose,” said the open letter, “the Court will say that discrimination against LGBT people is fairly easy to justify, and that same-sex couples can be denied the right to marry based on mistaken, antigay assertions that LGBT people make bad parents. Indeed, we have recently lost marriage cases on that very basis in the state high courts of New York, Maryland, and Washington, and in intermediate appellate courts in Arizona and Indiana. Such a ruling from the U.S. Supreme Court could hurt us badly in cases about parenting, schools, and government jobs."

BoutrosIn an interview last week, Boutrous (right) said he thinks the difference in strategies, even with the friction that went along with it, was a good thing. One strategy called for pushing hard for a court ruling to secure legal equality as quickly as possible; the other focused on building a "lasting, heartfelt understanding and recognition of the need for LGBT equality that is real and that endures in people's hearts."

"You need both," said Boutrous. After the AFER-Olson team filed the lawsuit, he said, the LGBT groups were "extraordinarily helpful" and still are.

"The combined strategies,” he said, “ended up giving the overall [marriage equality] effort the best of all worlds."

The Supreme Court struck down the Defense of Marriage Act (DOMA) in U.S. v. Windsor the same day that it agreed that Proposition 8 supporters lacked proper standing to appeal a federal district court ruling that found the ban unconstitutional. That was June 2013. Today, notes Boutrous, Lambda, the ACLU, Gay & Lesbian Advocates & Defenders, and the National Center for Lesbian Rights, and even Paul Smith (working with Lambda) are all working with the AFER-Olson team on the Fourth Circuit case that argued Tuesday in Virginia.

Davidson said he believes the LGBT groups’ assessment was correct in 2009 --that it was “too early” to launch a marriage equality lawsuit toward the Supreme Court and “that the Supreme Court would be more receptive to a challenge to DOMA first.”

“But, as I’ve said before, I may not have appreciated at the time how, if AFER had not launched a suit challenging Prop. 8, someone else who had less able counsel, less funding, and less public relations expertise than they did likely would have filed a challenge, and very well might not have succeeded in overturning Prop. 8,” said Davidson. “In addition, the public education surrounding the case was brilliant, and having Ted Olson leading the case was instrumental in helping pave the way for more conservatives to support marriage equality.  To me, what’s most important to recognize, however, is that we all had the same long-term aims.”

© 2014 Keen News Service. All rights reserved.

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Comments

  1. Jo Becker is just doing the most with this book, isn't she? My advice to her: calm down, Tracy Flick.

    Posted by: Kevin K. | May 17, 2014 11:37:04 AM


  2. See the review article by Claude Summers at glbtq.com in which he contrasts Becker's book with the book on Lawrence v. Texas by Dale Carpenter. He comments on the advantages and disadvantages of Becker having been embedded with the AFER camp as opposed to the larger contexts provided by Carpenter in his book. Here is a link.

    Posted by: Jay | May 17, 2014 12:17:19 PM


  3. My problem with this book is that it fails to consider or include the thousands of equally important advocates who were making the case for equal rights of all kinds for gays for over 60 years. None of what AFER, Boies and Olsen were able to do would have been possible had they not stood on the shoulders of the people who had been in this fight long before them.

    Posted by: Robert M. | May 17, 2014 12:17:27 PM


  4. Sorry the link didn't work. Here is the url for the Summers review: http://www.glbtq.com/sfeatures/becker.html

    Posted by: Jay | May 17, 2014 12:17:58 PM


  5. It's a good book.
    But as far as sales of the book go it's pretty much dead in the water at this point. It did not go on the NY Times Bestseller List nor will it and it's Amazon rank is now at 13,000 (which is pretty damn bad for a book that was published less than a month ago). I'm sure Penguin had much higher hopes for this title.

    Posted by: Lu | May 17, 2014 12:18:29 PM


  6. I see it as a very interesting book detailing the sort of gay aristocracy that took it upon themselves to manage the entirety of the gay rights platform in this country.

    Posted by: Vera | May 17, 2014 12:46:24 PM


  7. I read the book. It is what it is, and I'm not the least bit misled about it.

    But the ridiculously shrill reaction to it by the petty, credit-famished, attention-starved, "glory whores" (Andrew Sullivan et al) reminds me that they too are what they are, and I'm not the least bit misled by them either.

    I remember feeling some apprehension (if not outright suspicion) when reading about the AFER strategy, so I can sympathize with people who had spent much of their lives planning and litigating a more delibertate marriage equality strategy. But pretty early on I came to share the Boutros perspective--that having both groups advancing on different fronts, at different velocities, with different approaches maximized chances for success.

    But the important point to remember is that Marriage Equality is not yet won. It is far too early for advocates and allies to begin squabbling over who gets top billing in the movie version, or who gets named prom queen.

    Secure Marriage Equality and there will be more than enough credit to go around; lose it, and you will unleash hellfire as a backlash.

    Posted by: Hellfire | May 17, 2014 12:59:06 PM


  8. Re Vera's comment above about "detailing the sort of gay aristocracy that took it upon themselves to manage the entirety of the gay rights platform in this country."

    One of the points that Summers makes in the review I referenced is that Becker fails to realize the irony that the handful of millionaires who (initially) launched the Prop 8 litigation were actually much more in touch with the grassroots, who were sorely frustrated and impatient with the established gay groups, than those groups who were supposedly representing them. The activism that was sparked by the Prop 8 defeat in 2008 is what propelled the litigation, as well as the insistence that the Obama administration finally start doing something other than talk about gay rights.

    Posted by: Jay | May 17, 2014 1:09:41 PM


  9. So "combined strategies..." put the laser focus on being gay, and in the process made it more dangerous.

    Posted by: GEB | May 17, 2014 1:12:37 PM


  10. Jo Becker is just covering up financial opportunism of these individuals..This book is trying to justify all the donation money they looted for this cause..

    Posted by: styler | May 17, 2014 2:27:18 PM


  11. The Prop 8 trial was very important. Becker's book does a decent job recapping it. She says it's hard to make a narrative of a trial - and it shows - and I read the transcripts as soon as they were available - without claiming total recall I think Becker did a good job crafting a version of it. I enjoyed the book. It is a bit light on context, but anyone who reads one book and thinks they've got the whole story is a silly person.

    Posted by: Glenn I | May 17, 2014 2:27:55 PM


  12. This book was a just an work ad for a few lawyers...nothing more

    Posted by: styler | May 17, 2014 2:33:08 PM


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