Redeeming the Dream
California Lawyer
The honor to submit to the wellness coaching and medicine again saw record safely sildenafil order online to do this, we are helping to define the format of the pharmacy, its positioning, as well as to identify all boundary conditions. In the search box, you can type the trade name of the product online pharmacies cialis resource individual balance between functionality and performance. We can provide you all the necessary information relating to your preparation, and more other usa pharmacy buy cialis if you make a mistake while entering in writing you will be given the correct spelling of the product.
November 2014 October 2014 September 2014 August 2014 July 2014

Redeeming the Dream

The Case for Marriage Equality

June 2014

Redeeming the Dream - The Case for Marriage Equality by David Boies and Theodore B. Olson reviewed by Frederick Hertz
Viking, 320 pages, $33, hardcover

Comment



Print

Reprint

The narrative of marriage equality in California is as much a lecture in civil procedure as it is in constitutional law or sexual politics. The story of the rise and demise of Proposition 8 encompasses many core legal ingredients: the initiative process, state versus federal court jurisdiction, the place of morality in family law, cameras in the courtroom, and surprisingly, the importance of "standing."

It's a drama filled with unexpected turns - starting with then-Mayor Gavin Newsom's 2004 ill-fated attempt to authorize same-sex marriages in San Francisco, followed by the California Supreme Court's landmark 2008 ruling legalizing gay marriage (In re Marriage Cases, 43 Cal. 4th 757 (2008)). Then a few months later, with the passage of Proposition 8, an unpredictable course of events unfolded. When the California high court lost its mooring in 2009 and upheld the constitutional ban on same-sex marriage, long-time gay activist lawyers elected not to pursue a federal court challenge, only to be upstaged by a newly formed organization, the American Foundation for Equal Rights (AFER) unafraid to take on the Supremes. It featured a cast only a screenwriter could make up: David Boies of Boies Schiller & Flexner and Ted Olson of Gibson, Dunn & Crutcher represented the plaintiffs, and by chance the case was randomly assigned to a gay district judge, Vaughn R. Walker. Rounding out the list: two successive California governors who refused to defend the initiative.

Boies and Olson have teamed up to tell the inside story of the Prop. 8 trial and appeals, and it's riveting. The details will delight: Big law firms, political egos, endless press attention, and a passionate sense of mission are front and center, and the descriptions of witness preparation, appellate strategizing, and insider disclosures are bound to fascinate everyone who cares about the debate.

That's what is good about this book. What is less appealing is the authors' overflowing narcissism. (Admittedly, I'm pleased these big-shot straight guys care about my community - especially when one of them is a Republican with a stellar government pedigree.)

Painfully ironic as it was for attorneys who'd labored in these trenches for decades, it's no accident that it was the newly formed AFER that was able to raise big bucks and recruit prominent attorneys who could put on a trial that clinched a result that probably was inevitable. But would the outcome have been any different if gay advocates had led the charge? Perhaps it did take a posse of outsiders not worn down by the passage of Prop. 8 and not intimidated by the prospects of losing at the U.S. Supreme Court. But the implied message of the book - that same-sex marriage wouldn't have happened in California without Boies and Olson - detracts from an otherwise compelling narrative.

The book's other shortcoming is its lack of depth and an absence of full disclosure. The authors tell us that their conservative friends criticized them - but not enough about who said what and when. We learn that most of the legal team's services were donated but the challenge still cost a lot of money - yet we aren't told how much, or where the donations came from. It's apparent that press coverage of the case was vital to the shift in popular opinion, yet we aren't told how the authors or AFER garnered the stories that really mattered. And they simply ignore the negative consequences of the Supreme Court's ruling on standing for other progressive causes, and gloss over the legal irony that same-sex marriages were allowed to resume without the Court ever issuing a substantive decision.

Every chapter offers a fine introduction to the key issues, but the authors seem to have dropped their deeper insights, and the best of the details, on the publishing-room floor.

Frederick Hertz is an attorney-mediator and author of Making it Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions (Nolo 2014).

Reader Comments

Josh Clark - June 12, 2014
Mr. Hertz’s statement that “the implied message of the book – that same sex marriage wouldn’t have happened in California without Boies and Olson – detracts from an otherwise compelling narrative” is impossible to understand coming from someone who lives in California. I don’t know whether the book “implies” what Mr. Hertz infers. What I know is that it is absolutely clear that we would not have had marriage equality in California for many years, if ever, without Boies and Olson. Has Mr. Hertz forgotten that no one else wanted to bring this lawsuit and every major gay rights organization , and the ACLU, opposed the law suit.
Petra Forrestor - June 12, 2014
Mr. Hertz complains that Boies and Olson are too self congratulatory. I am shocked by his comment as most successful trial lawyers have big egos. It is part of what makes them who they are. I would also like to ask Mr. Hertz what he was doing in 2009 to defeat Prop. 8
Sylvester - June 12, 2014
I find the comments completely missing the point of the book! The entire point was to describe the background of the case and the enormous effort that was needed to affect a positive front and a forceful position from which the case was initiated and the outcome desired was achieved! The desire of Frederick Hertz to learn the identity and comments made are irrelevant; he should stick to the facts of the case and refrain from the need to sensationalize.
Tim Reichert - June 12, 2014
I found the book to be informative, concise and to the point! Mr. Hertz would have better served readers if he had been the same with his comments! The fact is that the marriage agenda would still be a decade away had Mr. Boies and Mr. Olson not taken up the case. They have made it possible for millions of families to reach an equal status with those who would prefer a two tiered system of justice. Kudos to Mr. Boies and Mr. Olson for taking up the challenge and taking a stand for equality and justice for all!!
Tim Reichert - June 12, 2014
I found the book to be informative, concise and to the point! Mr. Hertz would have better served readers if he had been the same with his comments! The fact is that the marriage agenda would still be a decade away had Mr. Boies and Mr. Olson not taken up the case. They have made it possible for millions of families to reach an equal status with those who would prefer a two tiered system of justice. Kudos to Mr. Boies and Mr. Olson for taking up the challenge and taking a stand for equality and justice for all!!
Julie - June 13, 2014
I was honored to attend the Human Rights Campaign's annual dinner on October 5, 2013, where David Boies gave a warm, heart felt and beautiful speech. Mr. Hertz statement "the implied message of the book - that same sex marriage wouldn't have happened in California without Boies and Olsen - detracts from an otherwise compelling narrative" could not be farther from the truth. In his speech, David Boies acknowledged "we are very conscientious of the fact that getting us to that place is something we did not accomplish and it was accomplished by many people who sacrificed far more and endured much more danger and discomfort than we ever did".
Melissa - June 13, 2014
If Mr. Herz found the Supreme Court decision on standing "surprising" then it can only be because he doesn't know much about the case. The Supreme Court adopted precisely the argument that Boies and Olson made to both the Supreme Court and to the 9th Circuit. Namely that although defendants could intervene at trial, the defendants lacked standing to appeal. The result is that the extensive opinion of the trial court stands, making unconstitutional California's ban on gay marriage.

We welcome your comments!

Name

E-mail: (will not be published)

By submitting a comment, you agree to abide by our comment policy.

Enter the characters on the left: