Lisa Keen | The Keen Files
Now that the great public gnashing of teeth has subsided over New York Times reporter Jo Becker’s history of the Prop 8 litigation, “Forcing the Spring”, there’s an opportunity to chew on some of the book’s useful disclosures.
For all the consternation it has caused, Becker’s trespass in portraying American Foundation for Equal Rights founder Chad Griffin as the Rosa Parks in the fight for marriage equality is not much worse than all the many times newspapers, magazines, and even knowledgeable people in the LGBT community have casually pronounced Stonewall as the start of the gay civil rights movement and rioting drag queens as the pioneers. The movement started decades earlier, and its pioneers were people who pushed back against discrimination in many different ways.
It also appears that Becker’s idea for dubbing Griffin, now president of the Human Rights Campaign, as the hero came from a National Archives development official. On page 381 of “Forcing the Spring,” Becker recounts how Jesika Jennings was showing Griffin and the plaintiffs around the Archives’ “Courting Freedom” exhibit. According to the Archives website, the exhibit “explores the evolution of American civil liberties with highlights from the evidence and judgments in important court cases, including documentation from the police report on the arrest of Rosa Parks.” While showing the group through that room, wrote Becker, Jennings told the plaintiffs that she was honored to show them around and that their own records “will be here in twenty to twenty-five years.”
“It’s like having the opportunity to give Rosa Parks a tour of the Declaration and the Constitution,” Jennings said, according to Becker. And Jennings, who now works elsewhere, confirmed the Rosa Parks quote as “quite accurate.”
It’s also worth noting that much-respected gay legal activist Paul Smith called the Prop 8 litigation “hugely significant,” according to a quote on page 387. Smith is the attorney who successfully argued the U.S. Supreme Court to strike down sodomy laws in the landmark Lawrence v. Texas case. He was also, according to what Olson told Becker, the first co-counsel Olson sought to work with on the Prop 8 case, but Smith turned him down.
According to Becker’s account, which she said she got from an interview with Smith, Smith had “entertained the idea of bringing a federal challenge to same-sex marriage bans” in the wake of his 2003 victory in Lawrence. He had just joined the board of Lambda Legal when Olson approached him about filing such a challenge in 2009. But Smith declined, telling Olson that he decided against filing a challenge to the marriage bans “after talking to a number of former Supreme Court clerks.” The clerks had convinced Smith that it would not be easy to win Justice Anthony Kennedy’s vote to strike down state laws banning marriage for same-sex couples.
Becker also famously paints a dramatic scene in which two well-respected legal activists from Lambda Legal and two of their allies from the ACLU storm out of a meeting early on with Griffin, several of his associates, and attorney Ted Boutrous from the Olson team. Becker wasn’t at that meeting, which took place on May 14, 2009. It was a meeting at which Griffin and his team were reportedly trying to seek support for their lawsuit from the LGBT legal establishment groups.
This was eight days before Olson’s team filed the lawsuit and arguably not the best time to make a sincere solicitation of input from lawyers who have been in the trenches representing the LGBT community’s legal rights for decades. It may have felt a little like, “Rosa Parks, we’re taking over this bus and driving all the way to the Supreme Court!” LGBT legal activists knew they were heading to the Supreme Court over marriage equality eventually, but they had been working meticulously on building the correct vehicle for the journey to maximize their chances for victory and avoid another Hardwick setback.
May 14, 2009. Hollywood producer Rob Reiner and his wife Michele hosted a lunch to talk about a lawsuit they were supporting to challenge Prop 8. 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 also 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.
Their guests were two attorneys from the nation’s oldest national LGBT legal organization, Jon Davidson 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 Lambda Legal, the 36-year-old 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 in the 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 Times 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 Becker’s “Forcing the Spring,” 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 the book. “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 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 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.”
“Do it,” shot back Griffin’s public relations partner, Kristina Schake. 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 is “inaccurate.”
“That is not who I am,” he said.
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, 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,” Davidson said.
Pizer characterized the meeting as “very cordial and friendly.”
“They seemed disappointed that we weren’t enthusiastic about their plan,” Pizer said. “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.”
In an interview [in mid-May], Boutrous 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 Prop 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 May 12 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,” Davidson said. “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 longterm aims.”
—Lisa Keen is an award-winning journalist who spent 18 years as editor of the Washington Blade. See more news from Keen and other select veteran gay journalists at keennewsservice.com.