by Karen Ocamb

Chad Griffin knew a federal lawsuit challenging Prop. 8 could be risky. Any lawsuit seeking equal rights for LGBT people that could wind up before the very conservative U.S. Supreme Court risks a possibly serious setback.

But Griffin, a longtime political consultant and co-founder of Griffin/Schake, had a secret weapon: Ted Olson, the conservative icon and former U.S. Solicitor General who famously represented George W. Bush in Bush v. Gore, the lawsuit that determined the outcome of the 2000 presidential election.

And on May 22, Olson and his legal team filed a lawsuit in federal district court on behalf of two couples challenging the legality of Prop. 8. Four days later, the afternoon of the day the California Supreme Court upheld Prop 8., Griffin announced his new organization—the American Foundation for Equal Rights (AFER)—and their legal team: Ted Olson and his friend and now co-counsel David Boies, the attorney who represented Vice President Al Gore in that historic case before the U.S. Supreme Court. The pair caps marriage equality as a partisanship issue.

“Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not,” Olson said at the AFER news conference.

Their Prop. 8 challenge was filed against the governor and attorney general of California and the counties of Alameda and Los Angeles, where the two couples live. Unrelated cases specifically challenging the federal Defense of Marriage Act (DOMA) are now in trial court in Orange County and Boston.

The Prop. 8 case will have its first hearing on a preliminary injunction motion before U.S. District Court Judge Vaughn Walker on July 2 in San Francisco.

On June 11, Attorney General Jerry Brown filed papers with the court saying Prop. 8 is unconstitutional; meanwhile, Prop. 8 proponents have asked to join the lawsuit to defend the amendment. The city of San Francisco filed an amicus brief on June 19 and Los Angeles Mayor Antonio Villaraigosa told Frontiers in L.A. the city is also considering filing an amicus brief, after consulting with LGBT legal groups.

LGBT legal groups initially expressed concern about the breadth of the lawsuit that seems to challenge all state DOMA statutes. But on June 25, Lambda Legal, the National Center for Lesbian Rights and the ACLU also filed an amicus brief. “From the beginning we’ve been offering our advice and brainstorming” with the Olson-Boies team, Jenny Pizer, director of Lambda Legal’s Marriage Project told Frontiers. “Our brief offers a complimentary analysis of the federal equal protection doctrine, focusing on the legal, historical and factual context of California. We are explaining why the court should find Prop. 8 unconstitutional for reasons that are unique to California.”

The decision to file the Prop. 8 challenge was not an easy one. First came the “gut-punch” of the measure’s passage last November, Griffin told Frontiers, followed by weeks of discussion with friends and colleagues around the country.

“What’s next?” Griffin and his colleagues asked. “Are we really fighting this battle on all battlefronts?”

But California was “the only state in the country to have granted a fundamental right to its people—and then to revoke it by a vote of the people,” Griffin said, thereby creating “a scheme where we have one group of people who have the right to be married and can get married; a second group of people who are forbidden by law to get married; and then a third group of people—18,000 couples that are married—however, if they are widowed or divorced, they cannot get re-married. It is a preposterous situation to be in!”

An acquaintance suggested that Griffin might consider talking to Ted Olson.

“My response was skepticism,” Griffin said. “I did not think I would agree with any view of Ted Olson or I didn’t think he would agree with any view of mine.”

But since Olson is considered to be one of the country’s greatest legal minds and has argued 55 cases before the U.S. Supreme Court with about 75% wins, Griffin agreed to a phone conversation. To his astonishment, Griffin discovered that the renowned conservative was a longtime advocate for marriage equality.

“This is a view Ted holds personally and has for a long time. He is not a Johnnie come lately to this issue,” Griffin said.

The two agreed to meet privately at Olson’s Washington office. “I was blown away,” Griffin said, noting that Olson is “not someone who takes a battle that he does not see the roadmap to victory.”

AFER board members include Oscar-winning producer Bruce Cohen and actor/director Rob Reiner, who has worked with Griffin since Griffin worked in the Clinton administration, underscoring the “tremendous” role the entertainment community has played in moving LGBT equality forward.

But the LGBT movement, Griffin said, doesn’t “ever give a sense of urgency. Wait 20 years. Wait 10 years. Wait on public opinion. But what we don’t talk about is that there is a specific reason today that we need equality and there are consequences for each day that we don’t,” such as the high rate of suicide among LGBT teenagers, as reported by the Trevor Project. “The role that entertainment can play is conveying these messages and providing a sense of urgency and talking about how full equality and granting full and complete civil rights is the most American of all actions.”

For more information, visit equalrightsfoundation.org