Margaret Talbot of the New Yorker Magazine has written the story that I hoped someone would write with regard to the challenge to Proposition 8 that is being heard right now in a San Francisco courtroom (It began last week) but that, as Talbot notes, is almost certain to eventually land in the U.S. Supreme Court.
Perry v. Schwarzenegger challenges the constitutionality of Proposition 8, the California referendum that, in November, 2008, overturned a state Supreme Court decision allowing same-sex couples to marry. Its lead lawyers are unlikely allies: Theodore B. Olson, the former solicitor general under President George W. Bush, and a prominent conservative; and David Boies, the Democratic trial lawyer who was his opposing counsel in Bush v. Gore. The two are mounting an ambitious case that pointedly circumvents the incremental, narrowly crafted legal gambits and the careful state-by-state strategy that leading gay-rights organizations have championed in the fight for marriage equality. The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.
In other words, if Ted Olson and David Boies are successful in getting the Perry case to the Supreme Court and then persuading the Supremes of the merit of the case, they will not simply overturn California’s Prop 8. That, my dears, will be the ball game.
Yet, if the challenge fails, supporters worry quite rightly that it will set back the cause of gay marriage for a very, very long time.
So, what drew conservative, Federalist Society member Ted Olson to this issue? And why has his one-time adversary David Boies joined with him? And why have they launched the case now—when many gay legal rights experts warned against a new court challenge at a time that the majority of public opinion does not yet support it?
Margaret Talbot covers all of this and more. Plus she lays out the legal thinking that has caused Olson and Boies to decide that the time was now, not later.
In addition to reading the article, do check out Terry Gross’s interview with Talbot on Wednesday’s Fresh Air.
(I recommend paying special attention to the legal concept of “strict scrutiny” that Talbot explains to Terry around or a little after the 17:50 minute mark. It is an intriguing term could be critical to the case’s failure or success. )
Even though Talbot is in D.C., she has been following various experts and advocates who are inside the courtroom tweeting and live blogging the fabulously dramatic, character-rich and anecdote-filled case, and then she has blogged her own daily analysis. (Oh, brave new interactive world.)
Much has gone into the formation of this case. And much has been arrayed against it. Margaret Talbot has done us the favor of giving us the case’s background—in the form of the legal and the human details.