Why It Matters That the Olson/Boies Book Muddles Gay Marriage History

SLATE | Jun. 18, 2014 

Ted Olson is not a historian. He is a conservative superlawyer and former solicitor general who became a household name first for arguing the Bush v. Gore case that put George W. in the White House, and later for teaming up with his adversary in that case, David Boies, to overturn Proposition 8, the California ballot initiative that banned same-sex marriage statewide.

So why does it matter that, in their new book out this week, Redeeming the Dream: The Case for Marriage Equality, Olson and Boies write an ahistorical account that exaggerates their role in bringing same-sex marriage to America and obscures important swaths of the real history of same-sex marriage?

Chroniclers of the LGBTQ equality movement are especially sensitive to the publication of misleading histories because of the controversy surrounding Jo Becker’s highly flawed book about the Prop 8 case. Becker was embedded with the Olson/Boies team for nearly five years, producing a lopsided account of the impact of that case, which was not only insulting to the veteran LGBTQ activists who laid the groundwork for success, but which also, in corrupting social history, risks thwarting future social change by obscuring our understanding of how social movements work.

The Olson/Boies book, not surprisingly, continues in this vein, coming as it does from the very team of self-congratulatory actors who fed Becker the skewed material for her hagiography. But before I enumerate the problems with the latest book and suggest why it matters, let me pause to say what the Olson/Boies team got right, as I have no wish to make them chronic punching bags just because too many people (including them) overhyped their role in this history.

Recruiting Ted Olson—a card-carrying member of the conservative Federalist Society, former solicitor general under George W. Bush, and one of the most distinguished Supreme Court litigators in the country—to the gay marriage cause was a stroke of genius. It was orchestrated primarily by Chad Griffin, now head of the Human Rights Campaign, who formed the American Foundation for Equal Rights to plan and fund the suit against Prop 8 (although Olson says in the book that he wanted to take the case before he ever spoke with Griffin, after his former sister-in-law floated the idea to him).

Olson’s recruitment of David Boies was also a brilliant move, as it gave a continued bipartisan sheen to the marriage equality effort. It is indisputable that having Olson and Boies prominently involved in this effort helped move public opinion, particularly with conservatives, toward favoring the freedom to marry. And the lawsuit, while it failed in the stated goal of winning a national right to same-sex marriage at the Supreme Court, returned gay marriage to California after it was cruelly yanked away by the 2008 Prop 8 ballot vote.

But here’s the problem. Like Becker’s book, the Olson/Boies book reveals a profound ignorance of the decades of strategy, advocacy, and perseverance that made gay marriage in America possible. Its authors make the surprisingly callow mistake of participating in an important cause, seeing success around them, and arrogantly assuming they did it all by themselves. And in doing so, they, like Becker, make it harder for the world to understand what’s truly involved in successful social change.

The AFER team did just enough historical research to be well-prepared for their case, which is perfectly sensible. But if you’re going to write a book and launch a sustained media tour consistently proclaiming that your case would “change the course of history” and would be a “critical step in the process of changing not only California but, we hope, America and the world,” then the bar for historical research and accuracy is higher.

And yet it’s disturbingly clear that the Olson/Boies team believes that marriage equality was nothing and nowhere before they entered the stage in 2009. And no, this is not a loose reading of their work or the unfair allegation, as some have charged, that Olson and Boies (and before them Becker) were just writing different books than the one we’d like to see. “Our effort,” they write, “and the efforts of the scores of people who helped and supported us have contributed, we hope, to the beginning of the end of this last major bastion of institutionalized discrimination in America.” They’re not talking about ending the marriage ban in California, but about ending marriage discrimination itself. Even when they credit others besides themselves with playing a role, it’s “the people who helped and supported us,” leaving little room for anyone outside their Prop 8 challenge.

More to the point, it’s absurd to suggest that the 2009 Prop 8 challenge was the “beginning” of anything related to the marriage equality effort. And this creation myth is not just a passing reference for the Olson/Boies team, which repeatedly suggests that they and their effort birthed the marriage equality battle in earnest. They recount a young gay lawyer on their legal team who, as he accompanied the plaintiffs to have their marriage application rejected, thought: “This is the first step toward marriage equality. It happened today. Right now.” Noting that their first op-ed in the Wall Street Journal did not wipe away conservative intransigence overnight, the pair writes: “We did not expect to change public opinion with one opinion piece. That was going to require a sustained, prolonged effort in every forum available. This was just the start.” Indeed, they seem to think, as Jo Becker suggested in her book, that it was the Olson/Boise team, with Griffin directing strategy, who first came up with the idea that a lawsuit could be a key opportunity to launch a national dialogue about gay equality—something true marriage equality pioneers like Evan Wolfson grasped and spoke about (sometimes ad nauseam) a generation earlier.

Likewise, Olson and Boies seem to think they were the first to cast same-sex marriage as a conservative issue and to conduct bipartisan outreach, an idea that rightly made Andrew Sullivan apoplectic, given his pioneering 1989 New Republic cover story, “Here Comes the Groom: A (Conservative) Case for Gay Marriage.” Olson and Boies write that 20 years later, with their 2009 case, “we wanted to begin connecting with a constituency that hadn’t fully considered our side of the issue.” Yes, conservatives have a deplorable history on gay marriage and gay rights generally, but not because no one asked them to think differently until 2009.

And while Olson’s presence was, no doubt, instrumental in attracting more conservative support for marriage equality, the book seriously exaggerates the impact of that role and the role of the Prop 8 suit generally in moving public opinion, which was already beginning to leap forward. Olson and Boies aren’t brazen enough to say it outright, but several of their historical juxtapositions are clearly meant to convey their own causality. “At the end of this segment of our journey” they write, “attitudes and public opinion have changed dramatically throughout this nation. Numerous states have subsequently enacted laws allowing gays and lesbians to marry, and many courts have acted where legislatures and citizens have not. The country has evolved swiftly and decisively in the direction of marriage equality and against various forms of discrimination on the basis of sexual orientation.” When they first developed their case early in 2009, they note, President Barack Obama had “not yet acted to fulfill his promises” to end marriage and military discrimination—never mind that he had been in office barely a few months. Weeks after they filed their case, they boast, Obama hosted a group of gay activists in the East Room, “an encouraging sign of change” they clearly attribute to their own efforts.

Finally, the Olson/Boies book, like Becker’s, grossly mischaracterizes the strategy that longtime gay legal advocates spent decades carefully planning and executing so they can proclaim it a failure. These established gay groups, the book says, “generally favored a state-by-state campaign to change laws in legislatures or pursuant to constitutional amendments.” This “non-litigation strategy,” they claim, “had been tried” and failed. “Gays and lesbians had lost election after election in various states. This was not a winning strategy.”

The claim of Olson, Boies, and Becker that the gay advocates who built the marriage equality movement opposed federal legislation in favor of a state-by-state approach is entirely false, as anyone with any real involvement in that movement (or anyone who ever bothered to ask) can tell you. Their plan was to build just enough support in the states and among the public that the Supreme Court would be ready to declare that gay people had a constitutional right to marry, taking lessons from black civil rights litigation in which the court required sufficient state and public approval before it declared similar rights.

The idea that gay advocates would be slogging through state legislatures in Alabama and Mississippi 30 years from now because it never occurred to them that it would be easier to convince a couple of justices than millions of voters from the former confederacy of their cause (an idea repeated uncritically this week by journalist Jonathan Capehart) is asinine and can only be suggested by people who failed to do their homework or who seek a straw argument to knock down.

And here’s the other thing: The gay movement’s strategy of building incremental support toward a national solution—the one Olson and Boies declare a failure—is the one that’s working; it was Olson and Boies’ confidence that the Supreme Court would be ready, at their hands, to declare a constitutional right for gays to marry that was flat wrong, just as the established gay lawyers had warned. (It is true that these lawyers, perhaps scarred by legal rejections and setbacks they suffered while fighting in the trenches for 30 years, probably exaggerated the risks of the Olson/Boies lawsuit, but they correctly predicted that the court was not ready to find a constitutional right to same-sex marriage nationwide, choosing instead to strike down the Defense of Marriage Act and dismiss the Olson/Boies case on a technicality.)

So why does all this matter? Contrary to what some charge, this is not about a fight for credit, though AFER’s credit grab is a maddening instance of unfairness and disrespect toward those who truly did the heavy lifting. Instead, this is about an accurate reading of history, and about the importance of historical understanding in shaping future social change. Olson and Boies believed that, given their stature and fame, they “could bring this issue to mainstream America and … when we did, the common sense and fairness of the American people would do the rest.” This is a profoundly ahistorical and gap-toothed analysis. Culture does not change this way, not by having two famous do-gooders enter the fray at the tail end of a revolution and bring a cause to a public that is inherently virtuous enough to do the right thing once the do-gooders put the cause on their radar. The public has to be pushed and prodded and primed to understand why they should change their entrenched views, and this process took decades and came via tools of historical change ignored and obscured in this book. Some will say that critics are just blasting a book these authors didn’t write and weren’t obligated to write. But these authors have advanced a historical argument that’s highly flawed, and that has consequences.

After all, it wasn’t at all that long ago that the vast majority of Americans found gay people disgusting and gay marriage a joke, or at best, something that didn’t even register, as Olson and Boies acknowledge it didn’t for them before 2004. How did we get from a period in the mid-20th century when 3,000 gay people were arrested every year in New York City alone for “crimes against nature” to Ted Olson becoming a poster child for gay marriage? For most of our history, it was decidedly not the common sense of fair-minded Americans, including judges, to view gays as the marrying type, so it’s illogical to suggest that a high-profile lawsuit and publicity campaign are responsible for changing history. For all their confidence that they caused a huge shift in public opinion on gay marriage and gay rights, Olson and Boies’ embrace of this movement is far more a reflection of years of toil and genuine risk taken by thousands of foot soldiers working to change hearts and minds than the cause behind bringing marriage equality to America.

The real question, then, is how did we get here? What made someone like Ted Olson wake up in 2008 and view same-sex marriage as a cause worth fighting for? (It was much more than a bad ballot vote and a conversation with Chad Griffin.) And here’s why it’s important: In an era when every straight person in the polite world is rushing to avoid being left on “the wrong side of this history,” it’s rapidly becoming difficult to recall how anyone could ever have opposed something that the majority of Americans now view as a fundamental right. Many who now see it as a travesty of justice that gay couples were ever denied the right to marry didn’t support this fundamental right just a few years ago. What’s crucial to understand about social movements, and what’s glaringly absent from the Olson/Boies account, is any sense of how social and cultural change really occur, including their own. How and why did two privileged straight lawyers who, by their own accounts, thought little (and said even less) about the gay marriage fight until one of its very last episodes, suddenly come to view it as the civil rights battle of the era? How and why did so many others evolve?

Our world will always face badly needed social change, from the ongoing inequality of gay people to the stigma and discrimination against transgender people to anti-immigrant sentiment to the plight of many other groups who will be kept down by ignorance and bias that isn’t—quickly enough—discovered and battled by benevolent celebrity lawyers. These people deserve an accurate historical account of how social change like marriage equality occurs. 

Nathaniel Frank, author of Unfriendly Fire, is the director of the What We Know Project at Columbia Law School.