Saying that “marriage is a conservative value,” and “we should want people to come together in marriage,” Ted Olson, former U.S. solicitor general and now partner at Gibson Dunn, spoke to ABA staff and Gibson Dunn lawyers about his work on the case to overturn the ban on same-sex marriage.
Introducing him as America’s “preeminent appellate counsel” who has argued 63 cases before the Supreme Court, ABA Executive Director Jack Rives opened “The Road to Marriage Equality” program at the ABA offices in Washington, D.C., in June to commemorate LGBTQ Pride Month and Loving Day (June 12).
Many cases came together to bring about marriage equality, but this key one had its beginnings when opponents to a May 2008 California Supreme Court decision granting same-sex marriage put Proposition 8 – the California Marriage Protection Act – on the ballot that November. And while California voters overwhelmingly voted for Barack Obama for president, they also voted for Prop 8, Olson pointed out.
Immediately there was a movement to file a lawsuit against Prop 8, spearheaded by Hollywood director Rob Reiner. Olson’s name was mentioned as a legal heavyweight who could help the cause. He said he agreed to take on Perry v. Schwarzenegger “if it was done right.”
Doing it right, according to Olson, involved six key strategies:
Choose the right constitutional principles: The case for marriage as a fundamental right was successfully argued using the principles of equal protection under the law and due process.
Use the case to change popular opinion: Olson said when he took on the California case, 57 percent of Americans were against same-sex marriage and 43 percent supported it. He prioritized elevating the case to move the needle on those numbers.
Bring in a high-profile co-counsel to draw publicity: Olson brought on his legal adversary from the Bush v. Gore case, David Boies, in part because he knew the two of them could draw press coverage, write op-eds and make TV appearances “whenever asked.”
Carefully choose the plaintiffs: Olson “wanted to tell a story to the American people” and wanted the public to be able to “look into the hearts” of two men and two women (Paul Katami and Jeff Zarrillo and Kris Perry and Sandy Stier). He also looked for four people who “could take the heat” of public exposure.
Develop a media strategy as well as a court strategy: Certain of the strength of their case, the lawyers tried to get the trial televised, but the California Supreme Court denied the request. (The trial was filmed, but the video has never been released to the public.)
Hire a film crew to document the events: From the start, the case was videotaped in real time so they would have a chronicle of how it went. The footage eventually became the HBO documentary “The Case Against 8,” which came out in 2014.
In January 2009, a three-week trial was held, followed by closing arguments in June. The decision was handed down in August 2010, and Olson said the 137-page opinion “was everything we could possibly expect.”
Despite the victory in district court, Olson said he knew the case would end up in the Supreme Court. It and several others did, and on June 26, 2013, the Supreme Court ruled the Defense of Marriage Act unconstitutional, and a few days later the plaintiffs in the Prop 8 case had the first two same-sex marriages performed in California.
Although some predicted a backlash to the decision, Olson (who, along with Boies was awarded the ABA Medal, the association’s highest award, in 2011) said it never materialized, and national polls revealed that by the time of the national ruling, public opinion had swung from pre-Prop 8 numbers to 57 percent supporting same-sex marriage and 43 percent against it. (By 2017, the numbers had grown to 62 percent support for it and 32 percent opposed.)
Olson reflected on those who filled the courtroom in San Francisco to watch the trial, including a gay couple that had been together for 49 years. The trial “taught us about ourselves,” they told Olson, and that “we didn’t think we’d ever want to get married, but if you win, we will.”