JURIST Guest Columnist Douglas NeJaime of Loyola Law School Los Angeles says that while the mainstreaming of gay rights is a good thing, movement lawyers who have traditionally championed the cause may have to get used to being displaced by mainstream, non-movement lawyers over whom they have less and less control….

A significant shift has taken place in gay rights litigation. Non-movement lawyers have become leading advocates for the cause. This shift is a positive step for the gay rights movement, but it also presents new risks for a movement that has been carefully orchestrated by a small group of legal organizations.

Last year, I commented in a JURIST column that we were witnessing the mainstreaming of gay rights in the California marriage litigation. The California Attorney General, charged with defending the state’s then-statutory restriction on same-sex marriage, refused to make a number of arguments in favor of the restriction. He wouldn’t argue that the ban strengthened different-sex marriages, encouraged and channeled procreation, or served the interests of children by promoting dual-gender parenting. Instead, social conservative advocacy groups were left to do the heavy lifting.

Now, just over a year later and following the passage of Prop 8, the state has abandoned all pretense of defending a discriminatory marriage law. Instead, in the state court challenge to Prop 8, the California Attorney General argued, under a novel theory, that the constitutional amendment was unconstitutional, taking away a fundamental right from a suspect class without a compelling governmental interest. Now, in the federal suit challenging Prop 8, that same Attorney General filed an answer asserting that the constitutional amendment violates federal due process and equal protection guarantees.

Meanwhile, in Massachusetts, the state’s Attorney General may have done one better. She filed her own federal lawsuit challenging the operation of the federal Defense of Marriage Act (DOMA) on her state. Piggybacking on an earlier suit filed by Gay & Lesbian Advocates & Defenders (GLAD), the Massachusetts Attorney General contends that DOMA usurps state control over marriage and unconstitutionally requires Massachusetts to treat similarly situated people (couples married under Massachusetts law) differently. And, she notes, it does so based on nothing more than animus toward lesbians and gay men.

Suddenly, two of the movement’s most forceful and high-profile advocates are public government lawyers, putting the force of the state behind the gay rights cause. As gay equality norms become mainstream equality norms, thanks to the tireless work of lawyers at Lambda Legal, GLAD, the National Center for Lesbian Rights (NCLR), and the ACLU, cause lawyers emerge from outside the ranks of movement lawyers. But, contrary to what we might assume, it’s not a story of clear triumph.

The shift in advocacy from movement lawyers to non-movement lawyers comes with a corresponding loss of control. For a collaborative movement that has been carefully orchestrated, that is no small price.

In the Prop 8 litigation that resulted in the California Supreme Court upholding the amendment, the Attorney General explicitly rejected the amendment/revision theory put forward by movement lawyers and instead advanced a novel, somewhat convoluted theory of his own. His support, while an important political moment, led to a confused oral argument. The Attorney General’s representative was left to make a case for the unconstitutionality of Prop 8 by arguing against the movement lawyers’ theory while at the same attempting to articulate his own theory of pre-political rights. The justices were not buying it.

Nonetheless, the Attorney General’s support was certainly a good thing. And while he shed doubt on the movement lawyers’ strategy of focusing on the amendment/revision question, he did not displace those lawyers. But that’s exactly what David Boies and Ted Olson have done in their federal lawsuit challenging the constitutionality of Prop 8. The union of these high-profile ideological rivals removes the question of same-sex marriage from traditional political divisions and persuasively presents it as an issue of basic fairness and civil rights. But Boies and Olson, and the newly formed American Foundation for Equal Rights, have proceeded against the advice of movement lawyers and without those lawyers’ official involvement. And they’ve done so at a moment when movement advocates have been enjoying an impressive amount of success on a state-by-state basis around the country.

Movement lawyers would like to see more states move to marriage equality before proceeding to federal court. They remember all too well the seventeen years of continued criminalization and discrimination between Bowers v. Hardwick and Lawrence v. Texas. They noted the Supreme Court’s reliance on an “emerging consensus” against sodomy prohibitions in Lawrence, and they know such “emerging consensus” is unlikely to be found at this point with regard to marriage. They know also that the Supreme Court is rarely ahead of public opinion, and when it is, significant backlash may result.

But the federal suit is moving forward, in the famous words of Gavin Newsom, “whether you like it or not.” And so movement lawyers from Lambda Legal, NCLR, and the ACLU have sought to intervene on behalf of lesbian and gay community groups. And the American Foundation for Equal Rights has rebuffed their attempt, alleging (in a letter that became public) that the groups aren’t acting in good faith and will only undermine the suit.

And so we arrive at the downside of mainstreaming gay rights. Movement lawyers have seen their orchestrated strategy derailed by mainstream, non-movement lawyers. They are now on the outside of a suit that would benefit from their expertise and experience. There is little they can do but stand by and watch. They might watch their movement suffer a devastating setback. Or they might watch the movement record its most significant victory to date — a victory for which they would have laid much of the groundwork – and yet be unfairly portrayed as ineffectual naysayers.

In the end, the mainstreaming of gay rights is a good thing. It means the movement has gained legitimacy and its claims of equality and fairness are resonating with more and more people. But with more and more people comes less and less control.

Douglas NeJaime is an Associate Professor at Loyola Law School Los Angeles.
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