Yesterday began Ted Olson and David Boies’ federal suit against the state of California, billed as the first real federal challenge to anti-gay marriage laws. It’s certainly the first one with real star power. David Boies and Ted Olson faced each other in Bush v. Gore (Boies lost, to the ruin of all), and they’re widely regarded as the best appellate litigators of the day. You can see why, here.
What makes the suit even more unique is that the state of California is a defendant in name only. California refused to defend Prop8’s validity, and the attorney general filed an amicus brief… for the plaintiffs. The suit’s only real defendants are intervenors, private citizens with a glancing bystander’s interest in the litigation, from an organization calling itself “Protect Marriage.” They’re fighting tooth and nail, to the point of tossing out television cameras forcefully (query why they think that little bit necessary), to preserve their right to be free, apparently, from squeamishness about other peoples’ relationships. The intervenors have no real stake in the outcome of the case. If they win, they get nothing but a sense of satisfaction. If they lose, they may, one day, shiver to see two men, hand-in-hand and wearing wedding bands.
I’m well aware that the Federal Rules permit intervention broadly and, because Olson and Boies didn’t oppose their intervention, parties like ProtectMarriage.com are entitled to their status. But when your only real stake in a civil rights litigation is the money you invested in stripping the eventual plaintiffs of their lawful rights in the first place, it may be time to re-evaluate life.
Consider, too, that these legal privateers are still the odds-on favorites, and that their eventual victory could have terrible consequences. I’ve been nervous about this case from day one. Although a perfectly candid Supreme Court would hold for the plaintiffs in a heartbeat, that’s not the environment in which we live. A misfired Supreme Court case, resulting in adverse precedent, could set back our eventual victory, of which we must be assured, by another two to five years. Volokh disagrees, but the odds just aren’t worth it.
California — and the gay rights community — need a show of force. With Boies & Olson, they’re getting it. The district trial will be good theater, as the Prop8 crowd seems to agree, but it’s just not worth pushing to the Supreme Court. If Boies & Olson lose at the Ninth Circuit, they might well consider leaving it there, and using the loss as a lobbying platform, from which to shred the opposition’s mendacity, and criticize a Supreme Court upon which the wronged can no longer truly depend. For those with a real stake in the matter, they should consider the long term carefully.