Kate Kendell

Ted and David's Most Excellent Adventure

Filed By Kate Kendell | August 17, 2010 8:30 AM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: David Boies, gay marriage, marriage equality, perry vs schwarzenegger, same-sex marriage, Ted Olson

In the weeks leading up to the Proposition 8 trial,ted and dave's excellent adventure2.jpg much was made in the media, blogs, and everyday conversations about the unlikely duo leading the legal challenge against the shameful California ballot measure that stripped marriage from same-sex couples.

The two, Ted Olson and David Boies, are an unlikely pairing on many levels.

They are political adversaries, and famously opposed each other in Bush v. Gore.

They are each high-powered and highly paid inside-the-beltway lawyers.

Ted is a long-time darling of the conservative movement, a former U.S. Solicitor General and a founder of the Federalist Society. David is a Democratic Party insider and an advisor to a number of key Democratic leaders.

And, finally, both are straight, and had no apparent prior interest or experience in lesbian, gay, bisexual, and transgender issues.

When the lawsuit was filed, the first question to each of them was, "Why?"

Their eloquent statements in support of full equality for same-sex couples quickly convinced even the most dubious that their commitment was sincere. Their stunning trial presentation and utter evisceration of the arguments and witnesses of those supporting Prop 8 paved the way for the recent ruling by Judge Vaughn Walker, which methodically dismantled every tired and baseless trope ever trotted out for why same-sex couples alone should be excluded from the right to marry.

The trial was a masterwork, the ruling a tour de force. As a result, the LGBT civil rights movement has jumped into hyper-drive.

This is a moment that happens in almost every major social justice movement.

The community most affected, along with its closest allies, toils for years to secure key wins-measured in terms of formal equality, changing attitudes, and cultural shifts. In the past five decades the modern LGBT civil rights movement has made breathtaking advances in both law and popular culture. We have made these gains because we fought for them, and we have been joined by key allies: family members, neighbors, religious leaders, politicians, Hollywood, and business types.

All together, we have come very far. But every movement also needs a game changer -- the key figure, or figures, who come, seemingly from nowhere -- and step up to make our fight their fight.

When that moment happens, it is something to behold. In the wake of the Prop 8 ruling, we heard the familiar hysterics from the same over-the-top folks who always show up to foam about the end of civilization.

But for the first time in the wake of a major legal victory for LGBT rights, we are neither hearing nor seeing any of that from those in real political leadership positions, who have mainstream credibility. In fact, it seems eerily quiet -- the noises we have heard from those quarters in the past are now muted and few.

So it may be that Ted and David not only led the legal team that took down Prop 8, but may, just by being who they are, have muzzled some of the most powerful voices against us.

It remains to be seen how long this apparent d├ętente will last. But for the moment, it seems cooler heads are prevailing.

And just this week CNN released poll results showing, for the first time ever, majority support for the right of same-sex couples to marry.

So maybe, just maybe, some of those who have been so quick to vilify us are being forced to think twice, simply because a man they respect, a colleague they admire, a long-time friend they look to for advice, has said, "That's enough."

We aren't the first and won't be the last civil rights movement to benefit enormously from the involvement of unlikely allies, but as we savor the victory of truth over lies and reason over caricature, it is very nice to have Ted and David by our side.

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"And, finally, both are straight, and had no apparent prior interest or experience in lesbian, gay, bisexual, and transgender issues."

Who would have thought that "outsiders" may actually be more successful than GLBT "insiders"?? Certainly not the gay-stablishment. Read any job posting and you get the idea that if you have not spent your life's work in the GLBT issues arena, then you can not possibly be of any value. It seems the movement has been so myopic that it has probably dismissed many others like Boies and Olson. Now thanks to these two men, maybe our GLBT organizations will open up to the idea that fundraisers can raise money, communicators can communicate, lawyers can litigate, office managers can manage, and volunteer coordinators can coordinate volunteers. Prior experience in GLBT issues is not the litmus test. After all, our issues are really HUMAN issues.

I sincerely hope that instead of looking at a person's resume and what GLBT orgs they have been with in the past, our local, state, and national organizations will open their eyes and ask what skills, abilities, and most importantly what networks can someone bring to further the cause going forward. Who knows how fast progress can be made and how many victories can be won once we truly welcome other allies.

I could be wrong on this - didn't NCLR join the other Gay Inc groups in opposing this lawsuit by Ted & Dave? Didn't NCLR try to talk them out of it?

Of course this ruling is great and Kate Kendall is an amazing activist, HOWEVER...

I am sick and tired of Gay, Inc. org leaders equating the fight for same-sex marriage with the greater movement as if they are the same thing. They most certainly are not. Just ask transfolks in Massachusetts and so many other states who are still without the rights gays and lesbians enjoy while the big money activists continue to focus their tunnelvision on marriage rights.

As a result of this ruling "the LGBT civil rights movement has jumped into hyper-drive."? Only if all you care about is same-sex marriage. If you're in need of workplace protections, forget it. It's full-stop, going nowhere. If you're hoping for lasting changes that will survive the next Republican President you can forget that too. All we're getting on most things is easily-removable executive orders, not legislated law.

Kate, you know better than this. I know you do, because I've read too much from you in the past not to believe that. How about dropping the bullshit hyperbole and let's focus on making sure people can pay the rent while we continue the fight for joint tax returns. At the very least, acknowledge the issue as a key part of the LGBT civil rights movement that needs serious work. In this economy, with the clear lack of interest and commitment we're seeing from our Democratic "allies" in Congress, to do otherwise is unconscionable.

We've still got a lot of work to do to make sure people can afford to eat and keep a roof over their heads. 97% of transpeople report discrimination on the job. Congress is doing nothing to stop it.

This is most certainly NOT "hyper-drive", at least not for those who care about issues other than the right to get married.

Get real, Kate.

gayasiandriver | August 17, 2010 7:15 PM

It's great to read a post celebrating our allies!

While I agree with Rebecca that the marriage issue is not the only issue that matters to us (and let's not forget that Kate's organization NCLR as well as many other organizations that people often call "Gay Inc" in fact are doing great work on all these other fronts as well), it only helps our movement to have high profile figures like Ted and David step up, publicly declare their support for our community, and then back that support up with action.

Kate, you are fantastic and this is a great post! I too am very excited about the possibilities of this moment. I think this is a very gracious statement coming from you and the NCLR.

Don't mind the haters -- some poeple just like to complain about anything.

Great article, Kate. I agree we should be glad to have such influential allies working for equality. It wouldn't have been possible without years of work and the dedication of people like you. Thanks!

I'm a longtime reader, and though I occasionally disagree (often strongly) with some of the points espoused on this website, I have never before actually commented on one.
This article has actually succeeded in making me type up a response, mostly because as I read it, I find myself getting more and more baffled by the commentary.

First, I'll explain where I'm coming from:
I suppose I must be one of those members of Gay Inc. I'm a (Canadian) young, upper-middle class lesbian, who is the director of her university campus' GLBT group. I don't think I'm particularily radical, though I suppose a few groups on campus wish I'd be a little quieter.
So that's me.

Now I bring up the issue that brought me around to writing this response:
Ms Juro, I respectfully disagree with the points you raise. You argue that the focus within the GLBTQ community on marriage is, at best, misguided and at worst, damaging.
You mention the rights of transgender individuals to have a safe and respectful workplace environment, and I wholeheartedly agree that this should be available and frankly, kinda mandatory. (I personally bust my butt to ensure that my university is as open and welcoming as humanely possible, so I know the importance of that!)

HOWEVER, where I believe you and I don't see eye to eye is that I believe that the GLBTQ rights umbrella can cover more then one right at a time.
I see a great deal of "Well, marriage takes all the focus away from other campaigns!" from GLBTQ individuals who are against marriage equality, which is something that I don't understand.
What's to stop you* from starting your own initiative to gain those particular rights? What's to stop you and other activists who want those particular sets of rights, from going out and getting these things?
Furthermore, how does one right being granted mean that other rights are incapable of being agitated for? If anything, it should be possible to use the momentum from the marriage fight for the movement for equal rights and access to a safe workplace environment.
(Furthermore, marriage does allow for a safety net for a lot of people--the ability to share spousal benefits has proven to be a huge asset to Canadian gays who can now access their spouse's company resources--such as extended health care coverage. It also allows for tax benefits, both in the form of refunds, and in the form of additional funds for lower income individuals, something you yourself touched on in your comment.)

If you believe that advocating for same-sex marriages is 'bullshit hyperbole', then what is to stop activists from accomplishing other things with their time? There is no mandatory clause that one must a)be gay and b)be an activist for SSM.
Hell, I can and do try to work for both causes up here in Canuckland.

But defeatist rhetoric is something I see a lot from the American queer anti-SSM camps; if one thing is passed, then another cannot possibly go through.
As someone who lived through the fight for Same-Sex Marriage here in Canada (and saw it go through!) and who was around to see various employment non-discrimation acts get passed as well, that sort of self-defeating prophecy just seems counterindictive.

I'm trying to keep this as polite as possible, but I just don't see why Gay Marriage =/= other GLBTQ rights. And I certainly don't think belittling other people's efforts to achieve one right is the way to go about securing other rights--maybe it's the Canadian in me showing through, but it just seems, well, mean. Also ineffectual.

Anyways, thanks for the article and for the thought-provoking critiques, Kate and Rebecca.

A couple of points:

1. Like most Americans, when I refer to Gay, Inc. I mean the major, big-money activist organizations like NCLR, the Human Rights Campaign, the National Gay and Lesbian Task Force, National Stonewall Democrats, etc. Sorry if that was confusing.

2. I didn't say that advocating for same-sex marriage is "bullshit hyperbole", I was referring to Kate's statement that this decision put the LGBT rights movement into "hyper-drive". That's flatly untrue and deserves to be called out.

Further, I do support same-sex marriage, I just don't support advocating for it at the expense of far more urgent and important rights that impact far greater numbers of LGBT's than the relatively tiny minority who wish to get married, such as the passage of the Employment Non-Discrimination Act.

The real-world reality that many of these big-money marriage-focused activists either don't get or just refuse to acknowledge is that that once marriage rights are won in a given state the big names and their deep pockets move on to other battles, leaving the poor and unemployed, usually transfolks, to fend for themselves. These people and orgs have proven that they cannot be trusted to fight for everyone once their own pet issue is won, so to advocate for SSM before housing and employment rights are achieved is to set up the bulk of the community to be betrayed by these activists and by the politicians who's votes they purchase with big donations and volunteer efforts.

In short, any LGBT person who's unemployed or cares about someone who is and supports the passage of a same-sex marriage law before the protection of their right to work is law is setting themselves and their community up for betrayal, as well as potential poverty and homelessness.

Of course, those with nice homes and good jobs often don't see employment rights as an important issue, and so will focus on saving themselves a few bucks at tax time, fuck everyone else. Since that's the kind of behavior we have to contend with, we have to speak out against it so that fair-minded LGBT's and allies will understand that to support SSM before ENDA is to put the cart before the horse and guarantee benefit to the wealthy while fucking over the poor.

Hi Rebecca:
I understood the meaning--I follow enough American politics, both GLBT and regular, to understand the reference. I still stand by my point--I'm probably one of those individuals who you would consider to be firmly on the side of Gay Inc. I might not be getting paid the six figure salary to advocate for the HRC just yet, but in your estimation, my role as a university queer group director, a paid position in which I am an employee of the Student's Union, places me within their ranks. I mentioned it, simply to give you an idea of my perspective on the issue.

Secondly, I don't particularily think that it DOES qualify as 'bullshit hyperbole'. After all, if we look at the history of the battles for GLBTQ rights, we see that there has been a distinct tendency towards a speeding up of the process. In the early years of the century, noone talked about GLBTQ issues at all. In the fifties, it was whispered about. In the sixties, murmured. As the decades progressed, the issues became more and more visible, from Stonewall to AIDS to DADT in the nineties...
Which brings us to today. In the span of under a hundred years, we have gone from nothing, literally nothing, to a state where, in most of the first world, being GLBTQ is just a potential fact of life.
In the past ten years, we've had the inception of marriage rights in over ten countries, including ones in which sodomy was previously a federal crime. We've had the enshrinement of gender expression and sexual orientation in civil rights codes--Canada, in particular, lists both of those in its Canadian Charter of Rights and Freedoms.
That IS, in the grand scheme, something approaching warp speed for the bureaucratic process.
I wouldn't call it bullshit, or hyperbole.

Furthermore, the issue of marriage is something that could serve as a valuable stepping stone for further GLBTQ rights.
The main opposition to marriage comes from the religious right, who believe that the 'gay lifestyle' is sinful, and something that is chosen. Thus, as it is a chosen lifestyle, they believe it should not be given a status requiring civil rights.
Naturally, their logic extends to include issues such as safe workplaces for other individuals, because after all, they 'chose' to be that way and could easily change if they really felt like it.
Marriage is an important battle because it is something most people understand. It is a ceremony that is recognized all over the world (in various forms and flavours, some more healthy then others). However, if I say 'wedding', most anyone in any country will understand, in some semblance, that I mean the union of two individuals for the creation of a family.
By claiming that right for ourselves, we the GLBTQ community assert that we are entitled to the same rights and priviledges as any other group, and do so in a way that the average Joe Schmoe can understand.
THEY know what it's like to be married. They might not--as a matter of fact, probably DON'T--understand what it's like to be discriminated against at a job because of how they present.
By using gay marriage as a teaching tool, we can reach a broader segment of the population. Once we have that springboard, it's much easier to get further points across.

Furthermore, speaking from a country in which gay marriage has been legal for years now, it has only done good. While there are still an alarming and frankly disgusting number of LGBT youth in poverty and in the system, we haven't given up on them. GLBTQ activists here in Canada haven't abandoned them, as you seem to think will happen. On the contrary, if anything, it has spurred awareness of the risks that individuals face when they ARE marginalized and deprived of equal rights.
By establishing first that we are human beings who have been born with a innate disposition towards our GLBTQ identities, we show individuals, including straight allies, that allowing people to suffer because of those innate traits is wrong.

I would also argue that a confrontationalist attitude, as adopted by so many GLBTQueer activists, serves little benefit. It only serves to drive a wedge between a community that is already small enough as it is.
What I have seen, at least up here, is a sense of cooperation. The peeps who wanted marriage went out and advocated for it, and the peeps who wanted employment protections for transgenders went out and advocated for that, and when we each had spare time, we helped our friends who were fighting for bisexual or leather or pansexual or genderqueer visibility.

For example, I could take offense to the line, "Of course, those with nice homes and good jobs often don't see employment rights as an important issue, and so will focus on saving themselves a few bucks at tax time, fuck everyone else."
You see, I have a nice home, and a good job (for a student) doing something I love (I get paid to be gay, what's not to love?). I could say that this line is PERSONALLY offensive to me--but I won't. What I will say is that I find it is contentious. By separating our community into the have and the have-nots, you alienate people who could be valuable allies.
For example, the fact that my parents paid for my university education doesn't mean I don't fight tooth and nail to ensure that marginalized GLBTQ kids have a voice in the system--if anything, it makes me fight harder to ensure that these kids get a scrap of just a few of the luxuries my accident of birth has afforded me. By saying that en masse, people who are economically affluent don't give a damn, I feel that the queer activists make unneccessary and ultimately, useless distinctions that serve no good.
No one likes joining a group where they're just going to be made to feel guilty for having been lucky. Which is a damn shame, cause after all, it's the affluent acvitists who'll write the checks to keep the rest of us fighting the good fight.

First, I don't believe Canada is a fair or reasonable comparison. Canada does not have a First Amendment so those who publicly disseminate hatespeech can be sued and legally prevented from doing so. As a result, the political climate in Canada is entirely different from the US when it comes to advocating for or against LGBT rights. Apples and oranges.

Second, if we could trust the marriage activists to be there for us after that goal is achieved you might be right that SSM could be a stepping stone. The problem is that in this country only a fool believes that to be true after all we've seen from these people. As we've seen in Connecticut, Massachusetts, and many other states where gays and lesbians were protected against discrimination years or even decades ago, transgender people remain without rights because the gay elite have moved on to marriage and other issues. Wisconsin, Delaware, New York,...the list goes on and on. It might be a viable tactic in Canada, but it's just not a credible reality in the US.

Third, I used the word "often" in my statement because of course there are many who believe in fighting for everyone. Unfortunately it's not the expectation. It's you who's painting with much too broad a brush here.

You are absolutely right that our constitutional structure does not have the same first amendment set-up that you do.
However, saying that our circumstance is so drastically different from yours is being duplicitous. How precisely is it?
Someone can still say "Silly faggot, marriage is for a man and a woman." They might get in trouble for it, certainly, but that won't stop them from saying it in the moment. And our laws against hate speech don't mean that everyone automatically is progressive--our Conservatives dislike SSM just like yours do, and were just as active trying to keep it from happening.
It's not apples and oranges, Rebecca, it's more like Granny Smiths vs Red Delicious. The flavour might be slightly different, but they're both apples.

"Second, if we could trust the marriage activists to be there for us after that goal is achieved"
My question is: Why would you expect them to be? Obviously, they're there to advocate for one thing. That's their perrogative, isn't it?
I've stated before and I'll repeat again--while collaboration is vital, don't expect everyone to bandwagon for your cause, because if you wait for everyone to get gung-ho for it, you might end up dead of old age before a consensus gets made. I've often joked that GLBTQ people are like cats--you just can't herd them.
So why would you expect to?
Some might stay and advocate, sure--most of the grassroots would, I suspect, if they didn't feel so marginalized by the rhetoric of the arguement. But ultimately, I find that the arguement "Why aren't they helping?!" is defeatist--if a specific group wants ENDA passed, or any other initiative, then they should start the trend of advocating for it themselves, and see if the moment gains any momentum.
(I'd like to point out that movements gain momentum by being accessible--and by being welcoming. One of the main problems I see with a great deal of radical rhetoric is that it doesn't really go for inclusivity, and so shuts down most of its potential avenues for collaboration right off the bat.)

Not to be a shit disturber, Rebecca, but please explain to me how I am the one painting with a broad brush.
It seems as though you are the one that's making the broad-brush allegations. For example:
"-any- LGBT person who's unemployed or cares about someone who is and supports the passage of a same-sex marriage law before the protection of their right to work is law is setting themselves and their community up for betrayal"
You say that ANY individual who has the temerity to support SSM while so much as knowing anyone who is unemployed is betraying their community.
Christ on crutches, that seems like a mighty heated statement to be making, especially when its phrased like that.
You also state that, "we have to speak out against it so that fair-minded LGBT's and allies will understand that to support SSM before ENDA is to put the cart before the horse and guarantee benefit to the wealthy while fucking over the poor."

Those are overarching statements, that all individuals who are either affluent and/or white are attempting, by sheer default, to fuck over the poor. Most assuredly, there are some not very pleasant rich people, just as there are most certainly an equal number of unpleasant poor people, and I'd make the arguement that capital wealth or economic affluence has very little say on whether or not someone is a total jerkass.
Mind you--I also believe that it's this sort of rhetoric that handicaps a great many of the radical queer agenda's initiatives. It's incredibly divisive, and for a community that should pride itself on inclusivity, and uses that as a major benchmark of it's social transgressiveness, "WE ACCEPT EVERYONE, NO MATTER HOW QUEER", it's extremely judgey.
I don't mean to be patronizing or pretentious, but you do catch more flies with honey then with vineagar, and perhaps that's the secret behind the mainstream success of the SSM movement--not a secret cabal of cis gay men rubbing their hands and cackling dramatically as they decide to fuck over the disenfranchized and downtrodden, but the fact that the people in charge made a conscious decision to make this movement as accessible as possible to as many people as possible, thus ensuring that they have a larger base to work off of.

In addition, I've noticed that you've kind of skipped over my commend about SSM being a teaching point to the larger straight community. I'd be interested in hearing your thoughts on the matter.

I really appreciate everyone's comments and wish to be clear: I do not see marriage as the only or even most important fight. But this is not a zero-sum game and I truly believe that a game-changing moment on marriage will help with employment, DADT, violence and homo and trans-phobia. For me, the leadership of David and Ted is a real "glass-half full" moment. Are we done? No. Do many in our community still suffer mightily? Yes. But I think we need to acknowlege forward progress lest we loose all hope.

Finally, NCLR did not criticize the lawsuit, we have always said this is a high-stakes strategy and that still holds true. This is about giving credit where credit is due--something we all can appreciate. David and Ted are not our first or only straight allies and let's hope they won't be the last.


I sure hope Ted and David know what they're doing. I think the Supreme Court is kind of a toss up.

They are good lawyers, but I'll wait until we see the end of this movie before deciding how it turned out.