On January 11th, a remarkable legal case opens in a San Francisco courtroom—on its way, it seems almost certain, to the Supreme Court. Perry v. Schwarzenegger challenges the constitutionality of Proposition 8, the California referendum that, in November, 2008, overturned a state Supreme Court decision allowing same-sex couples to marry. Its lead lawyers are unlikely allies: Theodore B. Olson, the former solicitor general under President George W. Bush, and a prominent conservative; and David Boies, the Democratic trial lawyer who was his opposing counsel in Bush v. Gore. The two are mounting an ambitious case that pointedly circumvents the incremental, narrowly crafted legal gambits and the careful state-by-state strategy that leading gay-rights organizations have championed in the fight for marriage equality. The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.
Olson’s interest in this case has puzzled quite a few people. What’s in it for him? Is he sincere? Does he really think he can sway the current Court? But when I spoke with Olson, who is sixty-nine, in early December, he sounded confident and impassioned; the case clearly fascinated him both as an intellectual challenge and as a way to make history. “The Loving case was forty-two years ago,” he said, perched on the edge of his chair in the law offices of Gibson, Dunn & Crutcher, in Washington, D.C., where he is a partner. “It’s inconceivable to us these days to say that a couple of a different racial background can’t get married.” Olson wore a brightly striped shirt and a paisley tie, without a jacket; there was something folksy in his speech, which reminded me that he’s a Westerner, who grew up and was educated in Northern California. He said, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been involving a man and a woman,’ when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The Justices of the Supreme Court, Olson said, “are individuals who will consider this seriously, and give it good attention,” and he was optimistic that he could persuade them. (The losing side in San Francisco will likely appeal to the Ninth Circuit, and from there the case could proceed to the Supreme Court.) Olson’s self-assurance has a sound basis: he has argued fifty-six cases before the high court—he was one of the busiest lawyers before the Supreme Court bench last year—and prevailed in forty-four of them. Justices Sandra Day O’Connor and Anthony Kennedy attended his wedding three years ago, in Napa. Olson said that he wanted the gay-marriage case to be a “teaching opportunity, so people will listen to us talk about the importance of treating people with dignity and respect and equality and affection and love and to stop discriminating against people on the basis of sexual orientation.”
If the Perry case succeeds before the Supreme Court, it could mean that gay marriage would be permitted not only in California but in every state. And, if the Court recognized homosexuals as indistinguishable from heterosexuals for the purposes of marriage law, it would be hard, if not impossible, to uphold any other laws that discriminated against people on the basis of sexual orientation. However, a loss for Olson and Boies could be a major setback to the movement for marriage equality. Soon after Olson and Boies filed the case, last May, some leading gay-rights organizations—among them the A.C.L.U., Human Rights Campaign, Lambda Legal, and the National Center for Lesbian Rights—issued a statement condemning such efforts. The odds of success for a suit weren’t good, the groups said, because the “Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states.” The legal precedent that these groups were focussed on wasn’t Loving v. Virginia but, rather, Bowers v. Hardwick, the 1986 Supreme Court decision that stunned gay-rights advocates by upholding Georgia’s antiquated law against sodomy. It was seventeen years before the Court was willing to revisit the issue, in Lawrence v. Texas, though by then only thirteen states still had anti-sodomy statutes; this time, the Court overturned the laws, with a 6–3 vote and an acerbic dissent from Justice Antonin Scalia, who declared that the Court had aligned itself with the “homosexual agenda,” adding, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Seventeen years was a long time to wait. “A loss now may make it harder to go to court later,” the activists’ statement read. “It will take us a lot longer to get a good Supreme Court decision if the Court has to overrule itself.” Besides, the groups argued, “We lost the right to marry in California at the ballot box. That’s where we need to win it back.” Plenty of gay-marriage supporters agreed that it was smarter to wait until the movement had been successful in more states—and, possibly, the composition of the Supreme Court had shifted. (During the last year of a second Obama term, Scalia would be eighty-one.)
