Turf Battles and Egos in the Fight for Marriage Equality

Ted Olson and David Boise - who will be in Norfolk tomorrow.

Sometimes it strikes me that one of the LGBT community's biggest problems are that (i) some of us prefer fighting with one another rather than fighting our real enemies on the far right and within the GOP, and (ii) some would hold us back in securing rights if they cannot be the ones who take the glory of winning the battles.  The last time I raised this issue when the lawsuit in Bostic v. Rainey was first filed I got pummeled by those were outraged that I would dare question the wisdom of the self-anointed "gay elite."  With oral arguments in Bostic taking place in tomorrow morning that will include Ted Olson and David Boies and possibly representatives of the Office of the Attorney General it is timely that a piece in the New York Times looks at the unwillingness of some of the "gay elite" and "professional activists" to welcome Olson's and Boies' help in other pending same sex marriage cases.  Having read all of the briefs and legal memorandum in the Bostic case, their input has been a net positive, particularly in tying anti-gay animus condemned in United States v. Windsor to the true motivation behind Virginia's Marshall-Newman Amendment.  In my view, winning is the real goal and it should not matter who gets to claim the victory.  Here are excerpts from the Times article:

WASHINGTON — Theodore B. Olson and David Boies, the star legal duo who defied skeptics by successfully challenging California’s ban on same-sex marriage, are seeking to play a central role in the next round of marriage cases that appear to be on a fast track to the high court. But in doing so, they have touched off a debate over who gets the coveted job of arguing what could be a landmark gay rights decision.

Mr. Olson, a towering figure in the conservative legal movement, and Mr. Boies, a celebrated trial lawyer who argued against Mr. Olson in Bush v. Gore, say they would like to take on a pair of appeals looking to overturn laws in Utah and Oklahoma that prohibit gay and lesbian couples from marrying.

But they have not exactly been met with open arms by the teams of lawyers already involved, whose response so far has been a cool “Thanks, but no thanks.”

[T]heir interest also raises questions of experience, ego and turf that are inevitable when the legal stakes involve the potential to reshape the nation’s jurisprudence on such an emotionally and politically charged civil rights issue.

Mr. Olson, in an interview on Monday at his office — where the walls and bookshelves are lined with memorabilia from his 60 appearances before the Supreme Court — cited the expertise that he and Mr. Boies have accumulated through years of preparing the case to overturn California’s Proposition 8. As Mr. Olson spoke, he was preparing to argue a separate case in a lower court in Norfolk, Va., on Tuesday that challenges the state’s ban on same-sex marriage.

"The reason we were brought in,” he said, “was the people in California who first contacted us were very concerned that lawyers would bring a challenge to Prop 8 that didn’t know how to take a case all the way to the Supreme Court — how to prepare it, how to build a foundation, how to present it, how to articulate the arguments.”

“It is impossible,” he added, “to overstate how important it is, and how meticulously handled it must be in order to ensure the best outcome.”

So far the lawyers arguing the Oklahoma case have not brought on any counsel from out of state.

The plaintiffs in the Utah case have brought on lawyers from the National Center for Lesbian Rights. But that is all the outside help they plan to accept for now.

Shannon Minter, a lawyer for the center, declined to comment on whether he had heard from Mr. Olson, Mr. Boies or their representatives, but he did point out that who argues the case is not the only important factor.

The path to the Supreme Court has come much faster than anyone, perhaps even the justices themselves, expected. The Utah case, in which the state is appealing a lower-court ruling that said the state’s prohibition of same-sex marriage was unconstitutional, will be argued on April 10 before the United States Court of Appeals for the 10th Circuit, in Denver. The same three-judge panel that hears the Utah case will hear arguments in the Oklahoma case a week later.

“There just is not a better combination of lawyers for this,” said Richard Socarides, a former adviser to President Bill Clinton and a gay rights lawyer.

Some legal experts said the only drawback to their involvement would be a few hurt feelings. “From the perspective of the lawyer who had the case all along, it might ruin their chance of having their moment in the sun,” said Michael J. Klarman, a law professor at Harvard. “But from everybody else’s perspective, it’s probably a good thing.”

Mr. Olson said he can empathize with a lawyer’s pride of ownership. “It would be human nature to feel that way,” he said.

I for one do not want to have a bad ruling handed down due to people's egos or the desire of some gay rights organizations to be able to claim that THEY won the right to same sex marriage nationwide.  I simply want marriage equality for myself and every other LGBT American.   I frankly do not care who wins that basic equality for me.