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| The plaintiffs in Bostic v.Rainey |
Most members of the LGBT community care little about which set of lawyers brings them full equality under America's marriage laws. The sole focus is that bans based on anti-gay animus and a Christofascist goal of keeping LGBT individuals inferior under the law be struck down. But in the battle to end religious based discrimination, the legal teams are too often more concerned about being able to claim who won and thereby inflate their own egos. And then there are the elements in Gay Inc. as I call them who like to dictate to others how and when things may be done with a goal of keeping the fundraising support rolling in. A piece in the Washington Post looks at the egos and rivalries behind the scenes in the context of battle to see Virginia's foul Marshall-Newman Amendment permanently struck down. Here are excerpts:
The legal forces challenging Virginia’s ban on same-sex marriage have been brought together in something like a shotgun wedding, uniting lawyers who previously clashed over the best legal strategy to pursue a common goal.
One side (of the same side) are celebrity lawyers Theodore Olson and David Boies, who have urged that bans on same-sex marriage should be met with a swing-for-the fences challenge to convince federal courts that the restrictions are unconstitutional.
Their uneasy allies in Virginia are the American Civil Liberties Union and Lambda Legal, groups that in the past have advocated a more measured and incremental state-by-state strategy.
Both approaches found some success at the Supreme Court last June. Now the two sides have been yoked as they and other challengers across the country embark on their shared goal: persuading the justices to establish a constitutional right to marriage that must be extended to same-sex couples no matter where they live.
But if they are now united in purpose and strategy, past tensions, egos and disagreements over who deserves credit for the progress are still on display as the advocates try to position themselves be the ones to take that potentially historic case to the Supreme Court.
This week, the focus shifts to Virginia, which has one of the country’s strictest bans on same-sex marriage and anything that resembles it. The American Foundation for Equal Rights (AFER), which employs Olson and Boies, and the ACLU have filed separate cases in the commonwealth.
On Tuesday, a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond is to review the decision of a Norfolk district judge in the AFER case.
With their case stymied, the ACLU and its team of lawyers sought to become a party in the AFER case. Olson and Boies objected, saying the organization would not add any arguments that were not already being made.
The two sides have a past. The ACLU opposed AFER’s 2009 decision to challenge in federal court California’s Proposition 8, which barred same sex-marriage. Like others who had been in the gay rights movement for years, the ACLU worried that the strategy of pressing federal courts to find that same-sex couples have a constitutional right to marry was premature and risky, without a proper legal foundation.
When AFER filed the California suit anyway, the ACLU put aside its reservations and tried to join it. Olson and Boies successfully kept them out. They were unable to persuade the 4th Circuit to do the same in the Virginia case.
But it is clear that some in the gay legal establishment, which for years painstakingly built an incremental path toward marriage, remain resentful of the attention given to the “stop waiting” approach of Olson and Boies.
Backed by Hollywood activists and fundraisers, the conservative Republican Olson and the liberal Democrat Boies, who represented opposite sides in Bush v. Gore, became an irresistible attraction for the news media when they shrugged off warnings from longtime activists that they were moving too quickly.
In United States v. Windsor, the court ruled 5 to 4 to overturn part of the Defense of Marriage Act (DOMA) and require the federal government to recognize same-sex marriages performed in states where they are legal.
The court’s reasoning in Windsor has been cited in an unbroken string of federal court decisions that have struck down state bans on same-sex marriage in Utah, Oklahoma, Texas and Michigan as well as Virginia. It has been the basis for judges in a handful of other states to say same-sex marriages performed elsewhere must be recognized.
The DOMA case was the product of established gay rights groups such as Gay and Lesbian Advocates and Defenders (GLAD), and supporters of the incremental approach say the importance of the Windsor decision validates their strategy.
William Eskridge, a Yale Law School professor and longtime strategist in the gay rights movement, is sharp in his judgment of AFER’s role in Virginia.
“Olson and Boies moved in to try to get the case that would give more glory to them,” he said, whereas “the ACLU and Lambda are in it” for the long run.
That is not how the Virginia lawyers who filed the case see it. Tom Shuttleworth and Robert Ruloff prepared the case for a couple, Timothy Bostic and Tony London, Ruloff knew.
“We got plenty of solicitations” from other groups that wanted to take over after the case was filed last July, Shuttleworth said. But a lawyer at their firm went to elementary school with a lawyer at Olson’s firm who worked on the Proposition 8 case. The Virginia lawyer approached the AFER team to see if it would join the case.
At Tuesday’s scheduled hour-long hearing, lawyers representing two county clerks defending Virginia’s laws are to split 30 minutes of argument time. On the other side, the allocations are more precise.
Olson will get 13 minutes, Esseks will receive seven. The remaining 10 minutes will go to Virginia’s solicitor general, who will join the call to strike down the state’s law.
It is another unusual facet of the case. Soon after taking office, Attorney General Mark R. Herring (D) announced that he felt the state’s restrictions were unconstitutional and that he would not defend them.
This case has special meaning for me since I know the same sex couples who are the plaintiffs, I know Tom Shuttleworth and Bob Ruloff from when we were in the same law firm many years ago, and I know Mark Herring. It goes without saying that I hope they prevail in this week's oral arguments.
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