http://www.anonymousliberal.com/2009/05/boiesolson-lawsuit.html The Boies/Olson Lawsuit
The Anonymous Liberal
Bill Araiza at PrawfsBlawg has a interesting post about the Boies/Olson gay marriage lawsuit that was filed in California yesterday. He echoes my thinking on the subject. Though Boies and Olson received a lot of favorable press yesterday,
it's not at all clear to me that they're acting either wisely or altruistically in filing this lawsuit.
The groups that have been tirelessly fighting for marriage equality over the last decade have deliberately avoided filing federal lawsuits. They reason, correctly I believe, that the groundwork has not yet been laid for victory at the federal level. They know that the odds of the Supreme Court issuing a Loving v. Virginia type of opinion with respect to gay marriage will be greatly enhanced if, at the time the case is heard, gay marriage is legal in a majority of states and supported by a majority of the population. If the Court rules on the issue before that happens, there's a real risk that it will issue an opinion that sets the cause back, maybe for decades.So instead of filing federal lawsuits, marriage equality advocates have been patiently pursuing a state-by-state strategy, a strategy that has recently begun to pay real dividends.
By filing this lawsuit, Boies and Olson are throwing a wrench into that strategy. They're taking a very big risk. Some have even suggested that this lawsuit is a cynical ploy to have this issue litigated at the federal level before the time is right. I don't think that's the case. I think Boies and Olson are sincere in their beliefs and want to win. I do think, however, that they are knowingly taking a big risk because they want to be the lawyers whose names are forever attached to the landmark opinion creating marriage equality. They want to be the Thurgood Marshalls of this particular civil rights issue, even though they are latecomers to the cause. In other words, they are grandstanding.
My best guess is that they're gambling that we are nearing a tipping point on gay marriage and they want to be the first lawyers to get their case all the way to the Supreme Court. They're gambling that by the time that happens, the political environment will be ripe for a Loving v. Virginia type of decision. I don't know if that's true. I've written here before that I think we'll see such a decision within ten years. But within 2 to 4? I don't know.
As Professor Araiza puts it, Boies and Olson have "grabbed a baby out of someone else's hands and are running pretty fast with it. I really hope they don't drop it."UPDATE: In Boies and Olson's defense, they likely also believe that, given their own reputations and skill as Supreme Court advocates--as well as their reputations within the political world--a suit brought by them would stand a better chance of succeeding than one brought by the interest groups that have long been linked to this particular cause. I think that's true, and when this issue eventually does make its way to the Supreme Court, this would be the team I'd want representing the marriage equality side. I just question whether now is the right time to start this train rolling. Like I said, this is a big gamble.
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