Legal Bills Of Proposition 8 Federal Case Exceeded $6.4 Million

The Washington Blade reports that according to tax records, the federal lawsuit to eliminate California's Proposition 8 resulted in some $6.4 million going to the high-powered law firms of Ted Olson and David Boies. Olson and Boies were the unlikely due behind the Perry v. Schwarzenegger lawsuit in May 2009 that eventually became the successful Hollingsworth v. Perry win at the United States Supreme Court in June 2013.

The lawsuit was sponsored by the American Foundation for Equal Rights (AFER) which was created by Chad Griffin at the time the suit was filed. According to the same records, AFER has raised nearly $15 million dollars since its inception and March 31, 2013.

The American Foundation for Equal Rights between 2009 and 2013 paid more than $6.4 million to two law firms that successfully argued against California’s Proposition 8.

Tax filings indicate former U.S. Solicitor General Ted Olson’s law firm – Gibson, Dunn & Crutcher LLP – received $1,691,714 from AFER for “legal and ancillary legal expenses”between April 23, 2009, and March 31, 2010. The organization paid the law firm $958,655between April 1, 2010, and March 31, 2011, and another $2,758,352 between April 1, 2011, through March 31, 2012.

Gibson, Dunn & Crutcher LLP received $537,939 from AFER between April 1, 2012, and March 31, 2013. The organization also paid David Boies’ law firm – Boies, Schiller & Flexner LLP – $468,089 for “legal and ancillary legal expenses” between April 1, 2010, through March 31, 2011.

Some  have questioned why such prominent lawyers did not work on this seminal civil rights lawsuit pro bono, which has generally been the custom in other movements. Others point out that the $15 million raised (and presumably spent) by AFER is much less than a ballot measure campaign to overturn Proposition 8 would have cost. And you may remember in 2009 there were very many people (vocally opposed by  a coalition of groups that included yours truly) who wanted to go to the ballot as soon as possible. Also, no LGBT legal minds thought that a federal challenge to Proposition 8 would succeed and were strongly opposed to the Olson-Boies lawsuit at the time.

Another reason why this is useful information is that AFER is now involved in another federal lawsuit, Bostic v. Rainey, in which they are suing to have Virginia's ban on same-sex marriages invalidated. On Valentine's Day, a federal judge struck down that ban and put a stay on her decision pending a resolution on appeal to the 4th Circuit or above. Lambda Legal and the ACLU have successfully petitioned to intervene in that case, which was opposed by AFER.

There is currently a race to see which federal lawsuit will get to the Supreme Court. Even though a dozen U.S. district courts have struck down marriage bans, no U.S. circuit courts have (yet). Oral argument in the Utah case (Kitchen v. Hebert) before the 10th Circuit and in the Nevada case (Sevcik v Sandoval) in the 9th Circuit are scheduled for April. It will be interesting to see if AFER's profile or reputation will be negatively impacted by these revelations despite their winning track record on restoring marriage to California on a timeline faster than the LGBT establishment expected.