Prop. 8 Challenge Puts Homosexuality on Trial

On Nov. 4, 2008, when the polls closed on the West Coast and media outlets reported that California voters had passed Proposition 8, gay-rights supporters across the country were stunned. How could the purported gay haven of California -- home to Hollywood, Harvey Milk, and the Castro -- have rejected same-sex marriage?

It was an odd cultural moment, infused with the countervailing energy and promise of Barack Obama's victory. While progressives across the country danced in the streets chanting, "Yes We Can," angry gay-rights supporters gathered on the steps of the state Capitol in Sacramento carrying signs that expressed their indignation: "No More Mr. Nice Gay." As Obama declared in his victory speech, the ground had shifted, but in the Golden State, it had moved in opposite directions.

After months of scapegoating, soul-searching, and regrouping, gay-rights leaders settled on a two-part strategy: Fight the measure in state court and work on overturning it at the ballot box in 2010 or 2012. The state Supreme Court challenge to Prop. 8, which argued that the measure was not an "amendment" to the California Constitution but a "revision" requiring legislative approval, was widely considered a long shot. Few were surprised when the court upheld Prop. 8.

What did come as a surprise was the news, that same day, that two relative strangers to civil-rights litigation, David Boies and Ted Olson, had filed a suit against the amendment in federal court. It was a decision so rash that it could only have come from outsiders. Olson, a prominent figure in the conservative legal movement, had represented George W. Bush in Bush v. Gore, a case in which he faced off against Boies, a high-profile lawyer who made his name defending Wall Street, not civil rights. They intend to take their challenge to Prop. 8 all the way: The case, Perry v. Schwarzenegger, is scheduled to go to trial in January, and it is widely expected to move on to the 9th Circuit Court of Appeals and the Supreme Court.

After the announcement, nine organizations -- including Lambda Legal, Human Rights Campaign, and the American Civil Liberties Union -- shot back with a joint memo warning, "There is a very significant chance that if we go to the Supreme Court and lose, the Court will say that discrimination against LGBT people is fairly easy to justify."

At the press conference announcing the suit in Los Angeles, Olson dismissed this concern with a dash of self-mockery. "Both David and I have studied the court for more years than probably either one of us would like to admit," he said. "We think we know what we are doing."

For decades, groups like the ACLU and Lambda have taken an incremental approach to fighting for gay rights in court, concentrating on establishing legal precedents and popular support in states before going federal. In California, Connecticut, New York, and Iowa, gay-rights attorneys have pursued many big-ticket cases, with mixed results. But in federal courts, their aims have been more modest; it was only in 2003 that Lambda succeeded in decriminalizing sodomy nationwide.

To some, both within the movement and outside it, this tentative approach has been frustrating. As Olson said, "People should not have to beg to be treated equally or wait for decades for popular approval to be treated equally." But even among those of us who believe LGBT Americans deserve equal rights now, the fear is that jumping the gun will lead to harmful court precedents and social backlash, as it did when the Hawaii Supreme Court ruled in favor of civil unions in 1993. Over the next 10 years, bills banning same-sex marriage were passed in 40 state legislatures. Some also blame the Hawaii decision for inspiring the 1996 Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriages performed in the states. Strategy matters, gay-rights leaders say, because the threat of backlash hasn't gone away.