Howard Rice's Bobbie Wilson
NLJ PRO BONO AWARDS | HOWARD RICE NEMEROVSKI
If at first you don't succeed, keep going
January 5, 2009
If anything, the pace of events in California's same-sex marriage debate has heated up since Proposition 8 passed on Nov. 4.
First, state Attorney General Jerry Brown declared that he was constitutionally bound to uphold the measure, which defined marriage as strictly between a man and woman. More recently, Brown changed his mind and filed arguments urging the California Supreme Court to strike down the measure.
Meanwhile, Proposition 8 proponents are going to court to invalidate more than 18,000 marriages performed during the 4 1/2 months that same-sex marriage was legal in California. Their legal team includes former Bill Clinton special prosecutor Kenneth Starr.
It's another stage of a hard, long slog for Bobbie J. Wilson, one of the Howard Rice Nemerovski Canady Falk & Rabkin attorneys who have been working on the issue for more than four years — ever since Valentine's Day 2004, when San Francisco Mayor Gavin Newsom declared that the state's existing ban on same-sex marriage was unconstitutional, and gay and lesbian couples flocked to the city to get hitched.
"I got a call that [Newsom] was contemplating issuing marriage licenses and, as this was unprecedented, I anticipated a flurry of legal activity," said Wilson, a litigation partner at the San Francisco-based firm.
"At first, I was surprised that people would be as passionate about it as they turned out to be," Wilson said. "People sent letters to the press that they would never spend money in San Francisco, or on the other side the outpouring of emotion in support." Once the marriages started, Wilson said, "we got bombarded with temporary restraining orders, and there were long nights working with the city of San Francisco" to defend the marriage licenses.
Eventually, the California Supreme Court ruled that it wasn't the mayor's job to interpret constitutional law and invalidated the marriages performed to that point. Then, on May 15, exercising its authority to interpret the California Constitution, the court struck down the ban on equal protection ground.
By that time, Howard Rice had thrown 10 lawyers — representing about 10% of its 100 attorney head count — plus five legal assistants and various support staff into the case. The firm devoted about 5,000 hours in billable hours, worth more than $2 million.
In the weeks since Proposition 8 putatively overruled the court, five Howard Rice attorneys including Wilson have been helping to build a case that the initiative was not a simple amendment to the California Constitution but rather a revision, which must be approved by the Legislature before being submitted for a popular vote. Brown, the state attorney general, has raised a different objection — that the constitution doesn't allow a majority to deny to minority groups equal protection of the law.
San Francisco Chief Deputy City Attorney Therese Stewart, a leading strategist for same-sex marriage, singled out Wilson as a leader in the gay marriage wars, along with Howard Rice litigation partner Amy E. Margolin, a constitutional law specialist.
Stewart also credited O'Melveny & Myers for its work on a "significant" amicus brief, along with "tremendous amicus support" from other firms with offices in San Francisco.
O'Melveny San Francisco partner Peter Obstler worked on that brief, which argued that the marriage ban violated the 14th Amendment's equal protection clause, to the extent that gays and lesbians are eligible for the same "suspect classification" protection as are ethnic minorities and women, and that the ban must survive strict scrutiny and serve a compelling state interest.
O'Melveny invested 1,160 hours in the cause, including about 80 partner hours, 1,000 associate hours and 80 paralegal hours, together worth about $436,000.
Wilson isn't surprised that the battle is not yet decided. "If you look at the history of civil rights, it's rare that a single court decision gets you where you want to go," she said. "In the marriage cases, originally everybody wanted to help because of the hot-button topic, but as the years went on and the drudgery set in, not so much. I'm happy the firm had stick-to-itiveness to see it through."
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