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Redeeming the Dream: The Case for Marriage Equality

by Lewis Whittington
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Thursday Jun 26, 2014
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On June 16, 2009, the state of California determined that barring same-sex marriage violated the state’s Constitution, so gay couples were finally able to wed- until Nov 5, 2008- when Proposition 8, a ballot measure in that election cycle barring same-sex marriage, won with 52 percent of the voters.

The victory of Prop 8 was a major setback for GLBTQ rights, even though it galvanized GLBTQ activism. The political and religious bigotry that would put civil-rights of US citizens to a popular vote was bad enough, but for gay Californians who had been legally married, it was a crushing blow.

But, the story was far from over. Star litigators David Boies and Ted Olson spent the next five years, building the Constitutional case against Prop 8 that led to their victory in the US Supreme Court. A year after their historic Supreme Court win, they have released "Redeeming The Dream | The Case for Marriage Equality," describing how they and their elite legal teams, did it.

For a non-fiction legal book, it has page-turning pace of a Grisham courtroom drama. The two straight middle-age men, one politically conservative, one liberal, had squared off as opponents in front of the Supremes in Gore v. Bush, that decided the contentious 2000 Presidential election, were now teaming up to prove Proposition 8 had no legal merit under the Constitution.

The heart of the book though is the moving personal stories of the plaintiffs who were challenging Prop 8 as denying them their civil-rights guaranteed under the US Constitution. Plaintiffs Sandy Steir and Kris Perry, a lesbian couple, had been married in California, only to have their legal status thrown into limbo by Prop 8. Paul Katami and Jeff Zarrillo, the other couple bringing the case, were gay men who had been together for many years and wanted to have children, but not until they could get married, so their family would be legally equal to all others. Olson and Boies warned the couples that it was an arduous and long process.

Of course the most absurd viewpoints come when the lawyers are in front of the US Supreme Court and no one comes across as more true to bizarre form than Judge Antonin Scalia. Sort of like having the racist Bull Connor deciding the Brown vs.Board of Educa

The plaintiffs won their case in front of California Federal district court Judge Vaughan Walker, who instructed the lawyers to address every social implication of the case, and ruled that the Amendment was unconstitutional under the Fourteenth Amendment. Prominent appellate lawyer Charles Cooper, led the effort to uphold Prop 8 when California declined to challenge Walker’s decision. Olson and Boies were so effective that some of Cooper’s main witnesses, withdrew from the case, or were inadvertently helping the opposition.

At one point Cooper filed a motion that Walker’s decision should be thrown out because it was revealed that Walker himself was gay and should have removed himself from the case. This was soundly rejected by another court as a completely unsupportable charge.

Of course, the most absurd viewpoints came when the lawyers were in front of the US Supreme Court and no one came across as more true-to-bizarre form than Judge Antonin Scalia (sort of like having the Southern racist Bull Connor deciding the Brown vs. Board of Education school segregation case in 1954).

So much of the story involves how the Olson and Boies elite legal team was put together and the civil rights merits they were able to articulate in court to win. Aspects of court procedures and other dense legal aspects are part of the story, but never overwhelm the narrative of the four plaintiffs. The authors always focus on the real lives and compelling court testimonies of these plaintiffs.

Olson and Boies initially faced opposition from GLBTQ civil-rights organizations who thought this case would fail on the federal level, mainly because of the timing and make-up of the Supreme Court. A loss would be devastating to marriage equality and GLBTQ rights across the board. Olson and Boies, not only welcomed their input with complete respect, they eventually won them over to their view that there would be no guarantees that the conservative make-up of the court would be changing anytime soon. If not now, when, they argued and why should their clients have to wait?

This case will be studied for years not only because it was the keystone to a resounding Supreme Court victory that nullified Prop 8. "Redeeming the Dream" is an inspiring legal saga of an historic era for the civil rights of all Americans.

Lewis Whittington writes about the performing arts and gay politics for several publications.

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