Today many of us who care about justice and dignity for same-sex couples are feeling a quickening in our pulse. This surge of adrenaline is to be expected given the stakes today as the trial challenging Prop 8 kicks off in the federal district courtroom of Judge Vaughn Walker. At the moment I am writing this, the trial is underway. I am at my desk and not at the courthouse, although several NCLR staff are there, including our Legal Director Shannon Minter. Several folks asked me if I would be at the courthouse, and all were surprised when I said no. I do intend to attend portions of the trial as it moves along over the next three weeks but for today, I felt the need to stick with my routine and what is familiar. But my heart is racing. When we won the right to marry for same-sex couples in California on May 15, 2008, I believed that we had turned the tide forever. I was convinced that the decades of discrimination, stigma, shame, and emotional and physical harm directed at LGBT people was finally in its swan song. Then, on November 4, 2008, the voters in California passed Prop 8, and I was personally and professionally bereft and devastated, then convinced that it was all a sham and that our fight for equality would be much longer than anyone thought.
Today it is January 11, 2010, the passage of time and developments around the world and in this country have given me back my perspective. Yes, winning marriage was a landmark watershed moment, yes, losing on Prop 8 was a demoralizing setback, but in the months since, we have seen marriage victories in four other states, we have also lived the two steps back of Maine, New York, and New Jersey. As the trial opens today, history is being made again, but not in the usual way. The lawsuit against Prop 8 is a federal suit brought under the federal constitution. The federal court is being asked to resolve this unique question (among others): is it a denial of equal protection under the law to single out same-sex couples and eliminate their fundamental right to marry after recognizing that same-sex couples are entitled to full equality under the state constitution? Moreover, as has been widely covered, the leading lawyers representing our community in court are an unlikely pairing. Ted Olson and David Boies are two of the most recognizable lawyers in the country. They were on opposite sides of Bush v. Gore and Olson, in particular, as a lionized leader in the conservative movement, is an unlikely and I submit, game-changing ally. Olson himself discussed why he took the case in this week’s Newsweek, and if you doubt his commitment, reading this piece will put to rest any lingering concerns.
I had my own concerns early on in this litigation and expressed them to Olson and his team. I was persuaded in a first phone call with Olson and other members of his legal team of the depth of his commitment and his sincerity. He is a true believer in our equality. At the conclusion of that first call I jokingly declared Olson an “honorary lesbian.” He chuckled heartily and said “he could not be more delighted” with the designation. Over the past weeks as NCLR has assisted the Olson/Boies team, I have become more and more convinced that the litigation not only has a real chance to succeed in striking down Prop 8, but that, equally important, having such unlikely champions makes possible the most important work: igniting a national dialogue and changing the hearts and minds of our fellow Americans. Even if that is all that happens, the world will never be the same.