Petrelis Files

CA Lawyer Magazine: Hidden Story
Behind Olson/Boies Prop 8 Lawsuit

(Cover of January 2010 issue of California Lawyer.)

My boyfriend Mike works downtown in a law firm and on New Year's Eve, he came home with the January 2010 issue of California Lawyer, featuring a cover story on the federal lawsuit challenging Prop 8. The only pull quote, a paraphrase, in the magazine's piece was from longtime lesbian legal scholar Nan A. Hunter. She said:

"A very careful and deliberate, collaborative strategy was thrown off by an organization with a small number of people who are wealthy enough to pay for a major litigation effort."

There's much to chew over from the article, and of keen interest to me was the behind-the-scenes, and public spillover, disagreements between Gay Inc orgs and the American Foundation for Equal Rights, AFER, instigators of the lawsuit filed by high-powered lawyers Ted Olson and David Boies.

Nan Hunter's quote wins no sympathy in our household. The Gay Inc strategy, which has produced some successes like gay marriage in Iowa, has also left us with more than 30 state ballot prop losses. We also seen a devout allegiance to that state-by-state strategy, with Gay Inc leaders saying there was no Plan B alternative to their thinking.

My partner Mike and I see nothing wrong with AFER leaders using big bucks to provide the gay community with another avenue to secure gay marriage in America. I doubt we're the only gays who've followed the disagreements between Gay Inc and AFER and think the former are upset with competing ideas that they don't control.

Over the weekend, California Lawyer posted the full article on their web site, and I expect it will be widely read by everyone concerned with Olson/Boies lawsuit, and the trial that begins a week from today.

Here are a few excerpts of keen interest to me that I hope lead lots of people to read the entire piece:

"We didn't want there to be an explosion of lawsuits around the country," says Theodore Boutrous Jr., a partner in Gibson Dunn's Los Angeles and Washington, D.C., offices who helped draft the complaint. The litigation group was mindful, however, that many lesbian, gay, bisexual, and transgender (LGBT) advocacy groups were pursuing a different strategy to legalize same-sex marriage, taking a state-by-state approach and avoiding a federal challenge. "We did not want to have a big debate about what we felt was the right strategy," Boutrous explains. "We did not want that debate to break out before we launched our suit." [...]

According to Boutrous, by April the legal team had examined the issues from all angles and concluded it could win a majority ruling at the U.S. Supreme Court. [...]

The litigation sponsors decided to proceed if they could get the necessary elements in place—including enough money to support the case all the way to the U.S. Supreme Court. Boutrous describes Gibson Dunn's fee arrangement with AFER as a "hybrid."

"We agreed to make a pro bono contribution of the first $100,000 of our services and then flat fees for the various phases, to be augmented and adjusted in our collective discretion," he said.

Millions of dollars in fees and expenses would be required. To raise it, [Chad] Griffin [of AFER] gathered people from the business and entertainment industry for a series of private meetings in Los Angeles and New York. Olson attended nearly every fundraiser, and Boutrous all the Los Angeles events. The foundation met its goals, though Griffin won't identify the donors, saying he'll reveal them only when the Prop. 8 proponents disclose their supporters.

Yes, the article is heavy with the disagreements between the pro gay marriage folks, and the machinations of the case wending its fast-track way through Judge Vaughn Walker's court, but the piece ends on a humorous note.

Longtime lesbian advocate and lawyer Kate Kendell of the National Center for Lesbian Rights, provides a reason to chuckle:

The LGBT legal groups also agree that Olson's involvement is a significant and positive development. Kendell says, "Seeing this person, who was a star of the conservative right, speaking out for the rights of LGBT couples to marry really did feel like, 'Gosh, this really could help change people's hearts and minds.' " In one of her early conference calls to discuss the complaint, Kendell jokingly named Olson an "honorary lesbian."

I don't think Olson would mind that designation one iota. Kudos to the author of the California Lawyer article, Chuleenan Svetvilas, for a comprehensive look at this important case, one week before the trial gets underway.