ADVERTISEMENTS

The above quote, from Matt Coles, Director of the ACLU's LGBT Project, appears in the New York Times article reporting on the Ted Olson David Boies lawsuit challenging Prop. 8 in federal court.  (Ethan blogged about this lawsuit yesterday.)  One of the commentors to Ethan's post expressed some cynicism about Olson's agenda, and in the Times article a number of prominent gay rights advocates, like Coles, expressed some reservations about the timing of the suit.  I have no clue what Olson's (and Boies's) reasons are -- maybe they're sincere, or maybe, as suggested by a commentor to Ethan's post, they're cynical.  It's surely the case that the lawsuit represents a massive gamble: if it's successful in the lower courts the Supreme Court is bound to step in, and if Olson and Boies lose at the Court then the issue will be off the federal constitutional radar for a long time, maybe decades.

What I'm curious about is the appropriateness of cause-driven lawyers taking up a cause that wasn't previously theirs, and taking steps opposed, or at least avoided, by the architects of that cause's long-term litigation strategy.  To translate: it's apparently been the common wisdom among gay rights advocates that premature federal constitutional litigation on gay marriage could be harmful to that cause.  That makes a lot of sense to me, though for present purposes what's important is that the (fair enough, self-appointed) leaders of the movement think so.  Then in step Olson and Boies, filing their challenge the very day the state supreme court announced its impending decision in the Prop. 8 case.

Again, leave aside the possibility that this suit is a cynical ploy to create a blockbuster Roe-like federal constitutional/political issue just as the Republican Party is finding itself devoid of winning arguments it can make to the American people.  I don't like casual allegations of bad faith, and it would impugn a lawyer's reputation to make this kind of charge without evidence.  And the presence of David Boies -- surely, nobody's fool -- casts further doubt on the conspiracy thesis, unless Olson and Boies are simply making different political calculations.  Rather, what I'm interested in is the interloper aspect of the lawsuit, where Olson and Boies swoop down, pluck some plaintiffs off the ground and fly off the federal court with a high-profile lawsuit and even a fancy new organization.

Is this appropriate?  Note, this is not an average litigator getting a visit from a same-sex couple who really want to get married and decides to not worry about larger political implications but simply to advocate for the rights of the clients in front of him.  That seems absolutely appropriate to me -- maybe even compelled, though I don't know enough about the relevant legal ethics rules to make that last judgment.  I have got to assume that Olson and Boies picked this cause, and only then went looking for clients.  Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.

If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing  concern and even annoyance about the lawsuit -- who have made gay rights their lives' work.  (Hence the title of this post.)  At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else.  If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.

Just to state the obvious: if this lawsuit is successful then I'll be thrilled.  I wish Olson and Boies good luck and good lawyering.  But they've grabbed a baby out of someone else's hands and are running pretty fast with it.  I really hope they don't drop it.

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.