As a journalist who has had the good fortune to serve as an apprentice attorney on David Boies’ Proposition 8 legal team, I’ve been surprised by the press coverage the case has drawn. Mostly, it has intrigued me that after all this time, reporters and the public still love the story of the odd couple, of the Bush v. Gore rivals—conservative Ted Olson and liberal David Boies—who have become more companionable than Oscar and Felix for the sake of marriage equality. While much has happened since they first announced their joint plan to challenge Proposition 8 in federal court—a whole trial, for one thing—fascination with law’s dynamic duo is still more interesting to most observers than, say, trying to understand the nuances of the Due Process clause of the Fourteenth Amendment.
It’s kind of obvious why, of course: most people care about personality, not legal doctrine. But also, the idea all along of having the Dream Team take on gay marriage was that the case would go to the Supreme Court. That was the expectation. That was the headline. If the ACLU had taken the same case—and, of course, they argue lots of suits in front of the Big Nine—it would not have had the same significance, because this is what advocacy groups do all the time. Boies and Olson, private practitioners who are also devoted public citizens, only took on Proposition 8 because it matters. Which meant, it was going to the Supremes.
It may turn out that the people who made Proposition 8 a voter initiative should have minded their own business.
Personally, I have no idea if that was the plan at the get-go. I know it was the assumption by all observers. Which is infectious.
But now something ironic has happened. Team Boies-Olson might have done such a good job of proving that Proposition 8 was inappropriate—or rather, that a citizen referendum on marriage rights is unconstitutional—that they have made it impossible for its proponents to fight against gay marriage in court.
As has been much discussed, the issue of standing, in the simplest sense, is the right to sue, and the whole point of this legal doctrine is to ensure that parties to a case are only those people who are truly affected by the outcome; nosy, meddlesome bystanders who think they have an interest in a situation have to mind their own business.
While it’s been explained elsewhere, let me put it in simple terms, because I think it’s not been: Imagine that, for some reason, Rush Limbaugh were to find himself swingingly single once again (seems possible), and because way leads to way, I were going to marry him. Now, let’s say you are my best friend, and you want to stop this horrendous travesty from occurring. Of the many things you might do, the one thing you cannot do is go to federal court and file a suit to enjoin the ceremony—because, frankly, it’s none of your darned business.
Well, it may turn out that the people who made Proposition 8 a voter initiative, who were allowed to be part of the lawsuit as “intervenors,” should have minded their own business. The defendant in the case was California and its officials—and since the these officials have shown no inclination to appeal Judge Walker’s decision, that leaves only the people who put Proposition 8 on the ballot to do so. It might be that as a non-party, the intervenors can’t take this case any further.
Meaning: game over. The Proposition 8 proponents’ appeal of Judge Walker’s decision may be defeated before the issues are even examined—it might be dismissed for lack of standing—and the litigation may simply end in California.
In its order for an expedited appeal, the Ninth Circuit panel has asked the proponents of Proposition 8 to brief them on the issue of standing in their arguments. Quite honestly, I just can’t see this big, huge, glitzy case ending so easily.
But the precedent it would set if the Ninth Circuit decided that they don’t have standing is pretty immense and devastating: it makes it law, in one of thirteen regions of the federal judiciary, that voter groups who try to dictate matrimonial morality, have no valid legal point. It’s one more win against the tyranny of the majority.
But if the Ninth Circuit allows the appeal to proceed, that means it’s safe to say, next stop, Supreme Court. It’s a little unfair that a lot of really good public interest lawyers have worked in the trenches of the fight for gay rights, only to have the glory usurped by Ted Olson and David Boies, who are kind of new to this particular battle. But that’s what’s interesting: the courtroom is very fair; life—not so much.
Here’s the thing: David is easily the smartest person I’ve ever met. Everyone who writes about David gets that he’s a great trial lawyer, that he has a generous rapport with a jury, that after he has cross-examined a witness the person usually needs to be carried out in a stretcher—and they get that he has a humongous wine collection, that he likes to shoot craps, that he wears suits with sneakers and his watch on his sleeve, that he’s overcome dyslexia. But I am not sure they quite realize that when it comes to plain old intelligence, David is up there with any rocket scientist.
I assure you I am not easily impressed—actually, I’m easily disappointed, I spend much of my life amazed by how stupid things are that actually pass for acceptable. And as impressed as I am with David, I’m pretty amazed by Ted Olson too. Marriage equality got lucky—with all the injustices in the world, this is the one that is getting their attention. But in all the coverage of the case that has focused on personality, I worry that people have missed the reason Judge Walker decided in favor of overturning Proposition 8: overwhelming evidence was presented that showed that homosexual people are equal in every way with heterosexual people, while no evidence was presented that showed otherwise; all that was left to support Proposition 8 was bigotry.
Elizabeth Wurtzel is author of Prozac Nation, Bitch: In Praise of Difficult Women, and More, Now, Again. She has been popular music critic for the New Yorker and New York magazine, and the film reviewer for Nerve.