[This is a cross-post from the general faculty blog here at Seattle University. Though it is not actually on my usual topic, I thought it might interest some readers.]
Access to marriage for same-sex couples has been a prominent battle in the culture wars of the last decade. Yet even as the main controversy rages, a new struggle has arisen. At issue is control of the litigation that has largely propelled the drive for marriage thus far. The division highlights important questions about identity politics and litigation as a tool for social change.
For many years, major lesbian/gay organizations and their allies largely controlled marriage litigation. These organizations crafted and executed a strategy, the main point of which was to litigate marriage questions in state courts based solely on state constitutional grounds. None of the cases raised any federal questions. The organizations sought to create a series of supportive state court rulings that were immune to federal review, saving a federal challenge for a later date, perhaps before a more favorable Supreme Court.
All this changed in May when Ted Olson and David Boies filed a case in federal court challenging California’s proposition 8 under the federal constitution. Their express plan was to bring the case before the United States Supreme Court quickly.
Unsurprisingly, the appearance of two very high-profile lawyers with no known previous commitment to any lesbian/gay issue and a strategy entirely at odds with the one pursued for the better part of a decade created controversy. The immediate response of the LGBT legal groups was to attempt to dissuade Boies and Olson from pursuing their case. When that failed, they sought to intervene in the lawsuit. This would at least allow them to share control of the case.
Olson and Boies opposed intervention in no uncertain terms and last week the federal district court denied intervention. The decision may well be technically correct–the plaintiffs in the federal case are lesbians and gay men who wish to marry–essentially identical to the plaintiffs in the cases brought by the intervenors in other courts. Olson and Boies plan to forcefully litigate the case, seeking the same ultimate goal as the proposed intervenors. The court’s conclusion that the intervenors have not explained how their interests are not already represented in the case seems reasonable.
But there’s something wrong here.
The reasoning just described works in ordinary litigation. In ordinary litigation, the plaintiffs’ stake in a case is largely personal to the plaintiffs–they win or they lose and it determines their rights. The first obligation of the lawyers in an ordinary case is to their individual clients.
But this is not ordinary litigation. When the plaintiffs in this case win or lose they determine the rights of millions of people. Indeed, the individual plaintiffs are simply stand-ins for all lesbian and gay people wishing to marry. In a case like this, the lawyers should be obligated to the larger community whose rights are at stake here.
And that’s the problem. Boies and Olson have no apparent ties to the larger community whose rights will be determined in their case. They are neither drawn from that community nor generally associated with that community. They have no historical commitment to it. And thus, they do not adequately represent the community’s interests. By contrast, while you can question the representative nature of the LGBT legal groups who have shouldered the marriage litigation thus far, their commitment to the communities in question is undoubted. They have been there in the past and they will, no doubt, be there in the future.
Katherine Franke has a thoughtful post on her blog that touches on much of this. I share her concern that Olson and Boies are acting opportunistically, taking advantage of hard work by other people they are now all too ready to push to the side. But as the case has developed, I am even more troubled.
The trial judge has set forth a long list of issues for counsel to address. Though Olson and Boies are experienced advocates, it seems to me doubtful that they can appreciate the many implications of the different ways to approach these issues. Even if they do appreciate them, given that Olson and Boies have no durable ties to the LGBT community, how will they make the decisions required when they are both strategic and political? Who will they answer to?
The answer cannot be the individual clients. And given the determination to exclude the LGBT legal groups from the litigation, it won’t be those groups either. Instead, Boies and Olson answer only to a (presumably) hand-picked board of directors that is far less representative than any of the LGBT legal groups might be. Even if Boies and Olson are well-meaning, is there any reason for confidence that they will make their choices in a manner that will be generally beneficial to LGBT people? Or that, given their lack of experience in this regard, they will even think the choices through critically?
This takes me back to the ruling on intervention. It may be technically correct but in the greater scheme of things it is surely wrong. Boies and Olson cannot give adequate representation to the people whose interest is at stake without the participation of the LGBT legal groups.