The New War Over Gay Marriage 

A Berkeley couple teams up with a Bush lawyer to fight Proposition 8 in federal court, while opponents fixate on politics and polygamy.

When a lesbian couple from Berkeley filed suit in federal court last month to overturn Proposition 8, some prominent gay-rights activists questioned the timing of the case. Critics said that the US Supreme Court was not ready to embrace same-sex nuptials. After all, the California Supreme Court, which is more liberal than its federal counterpart, had just voted to uphold the anti-gay marriage amendment. But a closer look at the lawsuit filed by Kris Perry and Sandy Stier reveals that they have a stronger case than many realize, while their opponents appear to be focused on political scare tactics.

Perry and Stier, along with their co-plaintiffs, Paul Katami and Jeffrey Zarrillo, a gay couple from Los Angeles, also have a powerful ally. Their main lawyer is Ted Olson, a staunch conservative who is considered one of the top constitutional scholars in the country. Olson, who is straight, served under President George W. Bush as the US solicitor general. In that role, he represented the Bush administration and successfully argued numerous cases in front of the US Supreme Court, and so is well aware of its political leanings and its judicial philosophies. He also represented Bush in winning the infamous case that decided the 2000 presidential election — Bush v. Gore.

But Olson also is a civil libertarian who believes that denying gays and lesbians the right to marry is wrong. In Perry and Stier's lawsuit, which Olson authored, he argues that Prop. 8 violates the US Constitution's ban on discrimination and disparate treatment. The Berkeley couple also is represented by David Boies, a prominent liberal attorney, whom Olson asked to be his co-counsel, thereby giving the case bipartisan credibility. Boies was the lead lawyer for Al Gore in Bush v. Gore, and so has first-hand knowledge of Olson's considerable skills. One of Olson's strengths is his ability to frame an argument simply and powerfully.

That skill is on display in Perry and Stier's lawsuit. "As a result of Prop. 8," Olson wrote in the straightforward, ten-page filing, "plaintiffs are barred from marrying the individual they wish to marry and are instead left only with the separate-but-unequal option of domestic partnership." In one short sentence, Olson managed to make Prop. 8 sound downright un-American, while at the same time referencing one of the most important US Supreme Court cases in history — Brown v. Board of Education, the 1954 landmark decision that ordered an end to segregated, "separate-and-unequal" schools.

Indeed, Olson has framed Perry and Stier's case as a historic civil rights battle, akin to Brown or Loving v. Virginia, the 1967 Supreme Court ruling that ended state bans on interracial marriage. As a result, the case is far different from the recently decided state challenge to Prop. 8, which centered on the narrow question of whether a simple majority of voters could amend the state's constitution to eliminate the rights of a minority. Perry and Stier's lawsuit by contrast, is a broad, sweeping assault on all same-sex marriage bans, using Prop. 8 as its primary target. It contends that the measure illegally discriminates against gays and lesbians and unlawfully denies them their constitutionally protected right to liberty and happiness in violation of the Fourteenth Amendment's Equal Protection and Due Process clauses. And because it's a federal case, it will not only legalize gay marriage in California if it wins, but will make same-sex nuptials legal throughout the nation.

So how did Perry and Stier get involved in the case? The two declined to be interviewed, saying they were not yet ready to go public with their story. But a little sleuthing revealed that their involvement appears to be linked to their relationship to the true backers of the lawsuit, gay-rights activist and political operative Chad Griffin and film director Rob Reiner, whose hit movies include When Harry Met Sally and The Princess Bride.

Griffin and Reiner have been friends since the mid-1990s, when Griffin worked in the Clinton White House and Reiner was researching his film, The American President. The two recently created a nonprofit, the American Foundation for Equal Rights, which is sponsoring the lawsuit, and sit on its board. Other board members include Bruce Cohen, co-producer of the Academy Award winning film Milk, and Dustin Lance Black, who won an Oscar for writing the Milk screenplay.

As for Perry, she is executive director of First 5 California, a Sacramento-based foundation created by Reiner that distributes tobacco-tax funds to childcare and educational groups and organizations. The funds come from the Reiner-sponsored 1998 state initiative Prop. 10. Perry has headed up First 5 California since 2005. According to sworn statements that she and Stier filed with the court, they have been together since 2000 and have raised four sons in Berkeley, the oldest of whom is now in college, the second oldest is entering college, and the two youngest are beginning high school this fall.

Perry and Stier said in the statements that they originally got married on February 21, 2004 at San Francisco's City Hall just after Mayor Gavin Newsom began marrying same-sex couples. "In August of that same year, we renewed our vows in a large celebration with our friends and family," Perry wrote. "Over 100 guests attended. Our beautiful children were in the wedding party. It was one of the happiest days of my life." But Perry said she and Stier were devastated when the state Supreme Court invalidated their marriage later that year. She said they intended to wed again when the high court legalized gay marriage last year, but then decided to wait until the Prop. 8 fight was settled. In preparation for the lawsuit, they applied for a marriage license last month with the Alameda County Clerk-Recorder's Office but were denied because of their sexual orientation.

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