Modern litigation demands a media strategy. But there is something excessive—not to say bizarre—about the lengths to which famous litigators David Boies and Ted Olson have gone to try and assert ownership over the issue of gay marriage, which they first took on (for a $6.4 million fee) in 2008, fully 17 years after the first case was brought by three couples under the Hawaii state constitution.
The latest product of their strategy is Forcing the Spring, an “insider” account by the journalist Jo Becker based on exclusive access to the litigators as they challenged Proposition 8, the California ballot initiative that banned same-sex marriage in the state. The book, out Tuesday, will be joined in June by an HBO documentary called The Case Against 8, which features “exclusive” footage shot during the same period. Considering that the California case brought by the lawyers spectacularly failed to establish a right to gay marriage, this media attention reflects nothing so much as Boies and Olson’s self-promotional skills.
If all one could say about Boies and Olson’s efforts was that they are being wildly overhyped, the observation would hardly be newsworthy. “Famous Lawyers Seek Headlines” is right up there with “Dog Bites Man." But the problem runs much deeper. Other people have spent the last two decades slowly and painstakingly building the social movement for gay marriage and articulating the moral and intellectual foundation necessary for the creation of a new constitutional right. Those people have, unlike Boies and Olson, won many important cases, most recently United States v. Windsor, in which the Supreme Court struck down the federal Defense of Marriage Act the same day it refused to strike down Prop 8.
In order to take credit for results they didn’t achieve, based on the accomplishments of a movement to which they did not and do not belong, Boies and Olson and their media proxies need to marginalize and circumvent the real activists. But even that is not all. Their aim for credit has real-world consequences. Boies and Olson are seeking out new clients and actively trying to beat the gay-marriage movement’s own legal eagles to the courthouse in a mad rush to get credit for what they have already failed to achieve. In the course of doing so, they are engaging in high-risk legal behavior that could backfire on the whole movement.
The Becker book is framed as a brief in favor of the lawyers and their client, a political operative named Chad Griffin who began his career as an activist on behalf of gay marriage in 2008. As Andrew Sullivan has written, the book vilifies or ignores the efforts of pioneers like Evan Wolfson, who joined the Lambda Legal Defense and Education Fund in 1989 and headed their Marriage Project until 2001, when he spun off Freedom to Marry, still the leading coordinating organization for the gay-marriage movement.
What the book all but ignores is that, when push came to shove, swing Justice Anthony Kennedy was unprepared to declare a general right to gay marriage, and as a result, the Supreme Court actually dismissed the Prop 8 case on the ground that the law’s proponents lacked standing to defend it after California refused to do so. This weird result shows just how dangerous Boies and Olson’s case was. Imagine the Court had failed to find a creative way to dismiss the case: the Prop 8 case could actually have elicited a precedential judgment against gay marriage. Boies and Olson’s headlong rush for personal glory almost cost the movement its crown jewel.
Indeed, Boies and Olson’s own legal arguments in the Prop 8 case were weak. They hardly mentioned the equal dignity of gay people, which had been the basis for Kennedy's earlier gay-rights decisions and indeed became the basis for his opinion in the Windsor case. Instead they emphasized the right to privacy, problematically associated with the controversial constitutional right to abortion. Contrast the brief filed by Roberta “Robbie” Kaplan, the lawyer who represented Edie Windsor in the only successful gay marriage case the Supreme Court has decided. Kaplan’s brief put gay equality and dignity front and center. Becker’s book gives it a single paragraph, calling it “a legal love story.”
It's worth noting that longtime advocates Wolfson and Kaplan are gay, while Boies and Olson are straight. The insulting—and incorrect—implied thesis of the Becker book is that gay marriage somehow could not become mainstream without straight advocates, particularly the conservative Olson. As Becker depicts it, the gay-rights “revolution” didn’t exist until 2008—in other words, during the period when it was run by actual gay people. It could succeed only because of the magical efforts of the straight legal superstars who are the book’s focus.
This rescue fantasy ignores not only common sense, but a serious body of academic literature on the relationship between courts and social movements dating back at least to the abolition of slavery. As scholars like Reva Siegel of Yale Law School have shown, innovative legal arguments for significant social change rarely if ever succeed without large, well-organized social movements creating the groundwork for their advances. Court decisions can also sometimes spur advances in a social movement. But the law never exists in isolation, because the law is fundamentally a social phenomenon.
Why is a serious journalist like Becker, who has won a Polk and a Pulitzer, advancing such a strangely narrow and implausible picture of how the law works? With limited experience covering law, she may have been susceptible to the heroic self-narrative spun by the lawyers and by Griffin, who is compared to Rosa Parks.
Yet it is hard to escape the conclusion that something more pernicious is at work in Becker’s book. Why, after all, should anyone want to read about a failed effort by two middle-aged straight white men to convince the Supreme Court of something others have been advocating for more than 20 years? Emphasizing the roles of Boies and Olson looks suspiciously like an effort to tell a story that might appeal to straight readers, and not coincidentally might be sold to Hollywood as a tale of conversion and salvation.
Then there is the problem of future legal damage. Since Windsor, Boies and Olson have been trolling for clients to get back to the Supreme Court, where they have yet to win, and take credit for making the court extend Windsor to a general marriage right. Their race back to the court has put them at odds with the people they are claiming to help. In Virginia, Lambda and the ACLU filed a class action on behalf of all gay couples seeking to marry, and the district court certified the class. Boies and Olson found their own client, refused to join the class, and are trying to beat the class by expediting briefing and skipping a trial that would build a legal record for the Supreme Court.
When the class representatives sought to intervene in Boies and Olson's case, a standard step when a class action includes the circumstances of another case, Boies and Olson filed a skillfully written opposition. In this extraordinary document, they maintain that their clients need an instant answer because their constitutional rights are being violated every day that they wait for a decision. This is not much cover for a transparent effort to beat the other activists back to the Court and claim credit—thus providing a better ending for their own story.
Boies and Olson are past masters at manipulating litigation and playing the media. What they’re not so good at is winning cases for gay marriage. Too bad that’s the only thing that can actually gain them true glory.
Noah Feldman is Bemis Professor of Law at Harvard and the author of seven books, most recently the casebook Constitutional Law (18th ed.) with Kathleen Sullivan.