The following comes from an Apr. 17 posting on Buzzfeed.
Few moments in the marriage equality movement have provoked more controversy than the 2009 decision of Chad Griffin to fight California’s Proposition 8 in federal court — and to enlist Ted Olson, a key official of the George W. Bush administration, to do so.
Now that the legal bill behind that legal effort has been revealed to be more than $6 million, some are asking questions about the steep fee for the lawyers in the Prop 8 case — especially as a slate of new marriage cases advance through the courts and lawyers jockey for position to argue the one that they expect will ultimately deliver marriage equality to all 50 states.
The debate over the Prop 8 price tag is just one part of a much larger battle within the legal world of LGBT rights: the fight for credit.
Since Griffin, now the head of the Human Rights Campaign, made the decision to go up against Prop 8 five years ago, the landscape for marriage equality has changed dramatically. Griffin, the campaign he put together — the American Foundation for Equal Rights — and the lawyers he recruited — Olson and David Boies — are in the midst of a public relations campaign to claim a big slice of the credit for that change. While the fight for credit continues, especially with the forthcoming publication of Jo Becker’s book looking at the past five years of the marriage fight, the questions about the costs of the case have percolated under the surface.
The Prop 8 case was an unprecedented moment in LGBT rights history. Boies, Al Gore’s former lawyer, and Olson brought a federal case claiming federal constitutional rights — the very case that established LGBT rights groups had been avoiding.
The day the lawsuit, orchestrated by Griffin and AFER, was announced, the leading LGBT legal and political groups issued a rare all-hands-on-deck warning that “the ballot box and not the courts should be the next step on marriage in California” because “the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage.”
Griffin, AFER, Olson, and Boies went forward, undeterred, and in so doing, helped change the conversation for marriage equality. Griffin ran the effort like a well-funded candidate runs a campaign — enlisting high-priced lawyers, creating carefully planned media opportunities, and beginning a national fundraising effort to back their case.
For his part, Olson strenuously defends the way AFER and his firm handled the case, noting that Boies and his firm did work pro bono and that his own firm “at the end of the day, because we did so much of it pro bono, was the largest contributor, financially, from that standpoint.”
“We didn’t want it just to be the venture of a couple of lawyers. But because we got contributors, from liberals and conservatives, it became a substantial endeavor,” he said in Austin, Texas, last week before taking the stage at a summit at the LBJ Library celebrating the 50th anniversary of the Civil Rights Act. “Lots of people had skin in the game, so that they could care about it, so that they could spread the word, so they could be evangelicals for the cause and so forth.”
Boies agreed, adding, “One of the reasons, in a political campaign, and this was in a sense a political campaign — that you try to get people to contribute is not just for the money, it’s because once they contribute they become part of what you’re doing.”
“Even in retrospect, we think it was a very strong and important move to involve people and involve them financially,” Olson said.
But that opinion isn’t universally held. Kate Kendell, the head of the National Center for Lesbian Rights — one of the groups that had passed on bringing a federal marriage challenge — pushed back a bit against it.
“Our movement would never have reached this catalytic moment without the scaffolding of decades of victories in key legal cases — and those cases could not have been brought without the free legal help from small and large private law firms,” Kendell told BuzzFeed.
Ultimately, Olson’s and Boies’ efforts won back the right to marry that Proposition 8 took away.
But the duo was denied the nationwide victory it had sought when the Supreme Court dismissed the case on technical grounds because the party bringing the appeal — the supporters of Prop 8 — had no authority, or standing, to do so. And AFER’s endeavor had a price tag of nearly $13 million, per AFER’s executive director, Adam Umhoefer — more than half of which went to Olson’s and Boies’ firms, as the Washington Blade recently reported.
To read the entire story, click here.