The city of San Francisco played an important part in the legal battle for same-sex marriage in California, joining the lawsuit by gay rights advocates and crafting the scaled-back, one-state-at-a-time argument that a federal appeals court adopted in striking down voter-approved Proposition 8.
A new book has now disclosed that the city’s attempt to present that argument as a strategy to overturn California’s same-sex marriage ban was heatedly resisted by the plaintiffs’ high-profile private lawyers, who accused San Francisco of betraying their cause.
Attorney Theodore Olson and his colleagues were determined to bring a case to the U.S. Supreme Court that would establish a nationwide, constitutional right for gays and lesbians to marry, and were furious at the city’s October 2010 filing to the appeals court suggesting an alternative approach: a ruling that would apply only to California, journalist Jo Becker reports in “Forcing the Spring: Inside the Fight for Marriage Equality.”
The dispute came to a head in a “tense phone call” a month later, Becker said. Theodore Boutrous, a partner in Olson’s law firm, tried to persuade Therese Stewart, San Francisco’s chief deputy city attorney, to back off. Stewart tried to assure him that she was not looking to sabotage their broader case. Neither succeeded.
“The word ‘traitor’ crossed his lips before they both hung up,” Becker wrote, an account that Boutrous and Stewart confirmed in recent interviews.
“It was like having a fight with someone in your own family, a real passionate argument about the strategy,” said Boutrous, a Los Angeles attorney at Gibson, Dunn & Crutcher, the global law firm that represented two same-sex couples and the newly formed American Foundation for Equal Rights in the Prop. 8 case.
“It was a difference that existed from the very beginning in terms of Ted’s (Olson’s) enthusiasm and belief that he could get a sweeping victory,” said Stewart, City Attorney Dennis Herrera’s top aide and San Francisco’s lead attorney in nine years of state and federal litigation over same-sex marriage. “Ted’s folks were really mad, and I was getting a lot of pressure.”
The argument wasn’t just about strategy. It concerned the essence of the lawsuit and the risks it posed.
Wary of top court
Prop. 8 was passed by voters in November 2008, overturning a state Supreme Court ruling six months before that gave gays and lesbians a right to marry in California. Leading gay rights organizations challenged the measure, unsuccessfully, in the state’s high court. But they opposed going to federal court, or making any claims under the U.S. Constitution, because either step would start the case on a path to the conservative-dominated U.S. Supreme Court.
They recalled the court’s 1986 ruling that upheld state criminal laws against gay sex, a precedent other courts used to uphold numerous antigay measures until the high court reversed itself 17 years later. After 1986, “courts, state and federal, said, ‘You guys are criminals; you don’t get any respect under equal protection,’ ” said Stewart, a lesbian. “If you’ve been there, you were somewhat chastened by that experience.”
Risk versus reward
But Olson’s well-funded clients decided the potential rewards were worth the risks. Represented by Olson and another firm led by David Boies – Olson’s unsuccessful adversary in the Bush vs. Gore case that decided the 2000 presidential election – they filed suit in U.S. District Court in May 2009, beginning a four-year journey to the Supreme Court.
Groups like Lambda Legal and the National Center for Lesbian Rights assailed the suit, warning of a rerun of 1986, and instead advocated state-by-state political campaigns. San Francisco chose a midway path – joining the case as a co-plaintiff to protect its economic interests, while presenting arguments for narrow rulings that might avert a Supreme Court catastrophe.