Gay-rights lawyers on Wednesday welcomed longtime conservative lawyer Theodore Olson into the fight for same-sex marriage, but warned him and liberal colleague David Boies that they could hurt the cause more than help it by launching an attack on California's Proposition 8 in the federal courts.
"There is no end run around the nitty-gritty work of social change," Evan Wolfson, executive director of the New York-based Freedom to Marry, said in a telephone call. "If it was just about hiring a good lawyer and filing a good brief, we'd have won decades ago."
Olson, who represented George W. Bush in the landmark Bush v. Gore case that decided the 2000 presidential election, and Boies, who was Al Gore's lawyer, stole the post-Prop 8 spotlight Wednesday by holding a press conference to announce the filing of a suit challenging the measure on the ground it violates equal protection under the United States Constitution. A motion for a preliminary injunction was filed Wednesday in San Francisco federal court.
The eye-catching pairing of two high-powered lawyers from opposite ends of the political spectrum on such a divisive social issue caught many civil rights lawyers off guard. But the two men, representing a gay couple from Burbank, Calif., and a lesbian pair from Berkeley, Calif., said they had simply found a common cause regarding what they perceive as a violation of fundamental rights.
"We may vote differently from time to time," Olson said during a Los Angeles press conference that was presented online. "But we felt it was very important to present a united front and tell the courts this is not about right or left, conservative or liberal."
But the two men are defying the long-held view by gay-rights lawyers that a federal court challenge could eventually land the politically charged issue in front of a U.S. Supreme Court that might not be ready to make the leap that states such as Massachusetts and Connecticut have made.
"We only have one shot at the U.S. Supreme Court," Shannon Minter, legal director for the San Francisco-based National Center for Lesbian Rights, said in an e-mail message. "And any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a heavy responsibility to be certain they have fully considered the consequences of pulling the trigger on a federal challenge."
Wolfson agreed.
"We need to go before the court with the best possible climate and that means winning more states and winning more hearts and minds," he said. "Nobody should think the route to equality comes by rolling the dice and turning the question over to a court. It just doesn't work that way."
By coincidence, nine gay groups, including NCLR and Freedom to Marry, reissued a press release Wednesday warning about the dangers of lawsuits filed improvidently. Wolfson said the statement -- which had been updated to reflect the California Supreme Court's Tuesday ruling upholding Prop 8 -- has been issued following several gay rights losses and victories in recent years.
The statement urges going back to the ballot box to overturn Prop 8, "rather than filing premature lawsuits."
"There is a very significant chance that if we go to the Supreme Court and lose," it cautions, "the court will say that discrimination against [lesbian, gay, bisexual and transgender] people is fairly easy to justify."
The statement points to Bowers v. Hardwick, the 1986 Supreme Court ruling that upheld Georgia's sodomy law and was finally overturned 17 years later.
"That was fast for the Supreme Court," the statement noted. "And during that time, many [LGBT] Americans lost jobs, lost custody of their children and suffered other harms because the Bowers decision was taken as a license to discriminate against us."
Even with the possibility that Judge Sonia Sotomayor might not be President Obama's last nomination to the Supreme Court, gay-rights lawyers remain wary.
"We don't have any control over that," Wolfson said. "But we do have control over all the other things that need to be done, and this lawsuit should not divert from that important work."
During their press conference, Boies, a partner with Boies, Schiller & Flexner in Armonk, N.Y., and Olson, a partner in Gibson, Dunn & Crutcher's Washington, D.C., office, noted that they know the Supreme Court, its justices and constitutional law very well.
"We believe the courts are ready to grant equality to citizens based on sexual orientation," Olson said.
They also said that while they respect others' concerns about the timing of a constitutional challenge, they're not going to deny their clients their shot.
"When you have people being denied constitutional rights today," Boies said, "I think it is impossible to say to them, 'No, you have to wait. Now is not the right time.' If we had done that in prior civil rights battles, we wouldn't have the victories we now have."
Jennifer Pizer, senior counsel in Lambda Legal Defense & Education Fund's L.A. office, said non-civil rights lawyers might not understand the obstacles.
"It's difficult for people who haven't worked on these issues day to day to appreciate the depth of resistance we encounter everyday," she said. "It can seem irrational."
Olson and Boies filed the suit under the aegis of the American Foundation for Equal Rights, a newly formed group whose president is Chad Griffin, a top fundraiser for the Democratic National Committee who has ties to liberal Hollywood celebrities. Pizer declined to say whether Griffin had discussed the strategy with Lambda Legal before proceeding.
Olson, who served as solicitor general under George W. Bush, said Wednesday that he hopes no one suspects he has any underlying agenda to sink the gay-marriage fight in the federal courts.
"I feel very, very strongly that this is the right position and the right position for America," he said. "All I can do is prove to people [through] this case and our actions that we really, fundamentally believe what we're saying, and we're going to win this case."
Boies backed Olson. "He is a person that is committed in his heart and soul to equality, in his heart and soul to the Constitution. That is why he is here."
A hearing in Perry v. Schwarzenegger , 09-2292, is set for July 2 before U.S. District Chief Judge Vaughn Walker in San Francisco.
