This morning, before a patriotic display of no less than 20 U.S. and California flags, the unlikely duo of David Boies and Ted Olson announced a federal lawsuit intending not just to stop Prop 8 but to challenge it as a violation of the due process and equal protection clauses of the constitution.
Their move has rattled other legal eagles who have been pursuing same-sex marriage, state-by-state, for years. Jenny Pizer, one of the lawyers who argued the Prop 8 case before the California Supreme Court, called the move" "terribly risky," according to Reuters, and a coalition of groups including Lambda Legal issued a statement saying that "without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage." (Full statement here.)
"We think we know what we are doing. We have studied the constitution. We have studied the Supreme Court," said Olson, who most famously squared off against Boies in the 2000 Bush vs. Gore recount, before citing Loving vs. Virginia, the 1967 Supreme Court decision that struck down state bans on inter-racial marriage.
"It is critical to understand that this is a present, continuing violation" of the constitution, Boies said in arguing for the urgency of pursuing the case at the federal level.
Standing with them in a Biltmore Hotel ballroom were the plaintiffs in the case, two same sex couples who would like to be married — Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo — as well as the person who spearheaded the effort, Chad Griffin. Olson even credited Griffin for contacting him about the case, which is being done through the auspices of a new organization called the American Foundation for Equal Rights.
To anyone who straddles the world of entertainment and politics, Griffin is well-known. A former staffer in the Clinton White House's communications team (he, too, hails from Hope, Arkansas), he moved west after Clinton left office and established a business among the cottage industry of political consultants for prominent names. Griffin's client list includes Steve Bing, Rob Reiner, and Janet and Jerry Zucker, for which he has worked on a host of issues including environmental causes, children's education and stem cell research. But on Prop 8, and on the issue of same-sex marriage in particular, he seems to have taken a much more prominent role and avoided the potential pitfall of anyone who makes the jump from D.C. to Hollywood: You'll be pigeonholed solely as a fund-raiser.
Last year, Griffin did raise money for the Prop 8 campaign, drawing on Reiner, Bing, Ron Burkle and Brad Pitt for support. He was particularly vocal after the defeat, and even sought a meeting from Rev. Rick Warren when President Obama chose him to deliver the invocation at the inauguration. Griffin was executive producer of the documentary "Outrage," Kirby Dick's expose of closeted politicians who vote against gay rights.
Griffin contacted Olson last November, after the passage of Proposition 8, and met with him in person in Washington on Nov. 21. Although Olson had yet to go public on his views on same-sex marriage, apparently Griffin had been tipped to the fact that the lawyer's views tended toward a style of libertarian conservatism. There was a desire to find an equally prominent attorney on the left, which is how Boies joined the case.
"For even one couple to live through even one more day in state-sanctioned second-class citizenship is too long," Griffin said at the press conference.
That Griffin's new organization was able to pull off the pairing of Boies and Olson was itself a novelty that surely draws much more attention to the case, even if they had pursued it on their own. It proved surprising enough that Olson was even forced to defend his motives for pursuing the case given his conservative credentials.
"I hope people don't suspect my motives, but we have had lots and lots of conversations, and I believe this is the right position," Olson said.