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Tobias Barrington Wolff Headshot

All Hands on Deck in the Prop 8 Litigation

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On July 8, our leading national LGBT legal organizations -- Lambda Legal, the ACLU, and the National Center for Lesbian Rights -- filed a motion to intervene with the federal district court that is hearing the constitutional challenge to California's Proposition 8, the case that was begun in May by high-profile lawyers Ted Olson and David Boies. The groups have asked to join as full participants in the lawsuit, representing community organizations PFLAG, Our Family Coalition, and Lavender Seniors of the East Bay. And that is a very good thing.

When the Olson and Boies team first filed their federal lawsuit, advocates and other leading national voices raised some questions about timing and strategy. It was important to talk these questions through. Any high-stakes lawsuit requires a careful weighing of benefits and risks, especially one that might ultimately wind up in the Supreme Court of the United States. But that die has been cast. Now, it is time for an all-hands-on-deck approach to this important effort.

In starting this lawsuit, Ted Olson and David Boies have already helped to change the national conversation surrounding the issue of marriage equality. The mere fact that a high-profile Republican like Olson would place his name behind this fight is an important sign of how far we have come. Many will remember Olson as the lawyer who argued the Bush v. Gore case for George W. Bush and went on to be President Bush's first Solicitor General. The endorsement for marriage equality by such an iconic Republican figure, when combined with support from other Republican voices like Steve Schmidt, John McCain's former campaign manager, can help to move us away from the polarized political terms in which LGBT equality has so often been discussed. David Boies reiterated this message in a recent op-ed in the Wall Street Journal -- one of the most conservative editorial pages in the country -- calling LGBT equality an issue of justice that should transcend party politics. We should recognize the sea change that these efforts represent and capitalize upon them in our public advocacy efforts.

Just as important, we must now maximize our chances for a good outcome in the court challenge to Proposition 8. That is where the expertise and experience of our LGBT legal advocates is key. District Judge Vaughn Walker has made it clear that he wants to develop a full factual record in this case on such issues as the social science evidence surrounding children and LGBT parents, the history of discrimination against LGBT Americans, and that old chestnut of an argument, the purported impact of marriage equality on the relationships of straight couples. Consider the expertise that our legal advocates will bring to the table in this effort.

In the Iowa marriage case, Lambda Legal led a path-breaking effort to rein in the use of junk science and other abuses of expert testimony in litigation involving LGBT families. Iowa's unanimous ruling in favor of marriage equality is a testament to their deep knowledge and strategy.

In California, NCLR's leadership was instrumental in educating the courts about the history and impact of discrimination against LGBT families. Their efforts helped to produce last May's historic marriage equality ruling, permitting an estimated 18,000 couples to marry before Proposition 8 took those rights away.

In Alaska, same-sex couples are now entitled to fully equal benefits from their government employers; in Florida, the discriminatory ban on adoption by gay and lesbian parents has been declared unconstitutional; in Arkansas, a challenge to a discriminatory ban on gay foster parents is now underway -- all because of the leadership of the ACLU, which has systematically educated courts about the data and research demonstrating the equal capacity of LGBT parents to provide loving and nurturing homes for children.

Lambda Legal, NCLR and the ACLU have been participants in every major effort to secure equal treatment for LGBT couples and families in the United States in the last twenty years, including every victory we have achieved. When the groups weighed in with a friend-of-the-court brief in June, urging the district judge to recognize the irrational discrimination that Proposition 8 represents, the Olson-Boies team hailed the decision, praising the "inspiring leadership and legal expertise" that the groups brought to the fight and confirming the need for a "united front." Now that the district court has announced that it will develop a full factual record on the issues in this case, the leadership and expertise of our legal advocates is even more important.

I was one of those voices that raised questions about timing and strategy when the federal lawsuit was filed. I am willing to admit that I may have been wrong, and that the Olson-Boies team may prove to have been visionary. Only time will tell. Our goal right now must be to ensure the best possible outcome for this lawsuit.

We all agree: Proposition 8 is an unconstitutional and discriminatory denial of equal rights, under any legal standard. With the full participation of Lambda Legal, the ACLU, NCLR, and the community organizations they represent, we will present a united front in advancing the compelling evidence and making the case to the federal courts.

Tobias Barrington Wolff is a law professor at the University of Pennsylvania and a visiting professor at Harvard Law School. He co-authored and submitted a friend-of-the-court brief in the federal challenge to Proposition 8 on behalf of Equality California.