Inflated claims about a deflated result in the Proposition 8 case

June 30

Here’s an excerpt from my review in today’s New York Times of the new book by Ted Olson and David Boies about their challenge to California’s Proposition 8, which ended in Hollingsworth v. Perry when the Supreme Court decided that the law’s defenders lacked standing:

More dual memoir than history book, “Redeeming the Dream” takes us through the legal proceedings, dutifully summarizing briefs, oral arguments and decisions. It is padded with redundancies, digressions and trivia, lacks footnotes and offers few substantive revelations about the case.

But the book’s faults are deeper still. The authors assert that the Perry decision “gave us, and the country, a victory that would echo throughout history.” They maintain that the publicity their case generated “contributed in a material way” to a “sweeping change in public opinion.” Simply put, Mr. Olson proclaims, “We have changed the world.”

The Proposition 8 case restored same-sex marriage to California, and the authors are justifiably proud of that. But Perry did not bring the promised nationwide victory, and it pales next to the Supreme Court’s opinion in United States v. Windsor, decided the same day, which invalidated the Defense of Marriage Act. Windsor, not Perry, is the decision that more than a dozen federal courts have relied on to affirm the freedom to marry. The authors do not even mention the lawyer who won that case, Roberta Kaplan. Rarely have so few overlooked so many to claim so much based on so little.

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.
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