Did Boies and Olson Make a Tactical Mistake?

Maura Dolan had a couple of updates on the LATimes.blog about the appeal of Judge Walker's decision in Perry v. Schwarzenegger, the federal case regarding California's marriage amendment, voted in as Proposition 8. ProtectMarriage.com submitted arguments to the 9th Circuit Court of Appeals calling for Walker's decision to be overturned (thus keeping the marriage amendment in place). Absent that, they argue that Imperial County should be allowed to defend the amendment. As you know, Governor Schwarzenegger and Attorney General Brown have abandoned their responsibility to defend the state constitution.

But here was an interesting twist I did not expect.

Failing that, the group argued, the court should rule that the Aug. 4 decision affects only the couples named in the suit because it was not filed as a class action on behalf of all gays and lesbians, ProtectMarriage argued.

We have noted elsewhere that this isn’t just about homosexual people. Everyone has the same access to a state marriage license, regardless of sexual orientation. So if two men can get a marriage license, they don't have to indentify as homosexual to get it together. But the more important thing here is the argument that this should be a limited to the plaintiffs. I was skeptical (having only seen the LATimes.com coverage), but notice this:

UC Davis Law Professor Vikram Amar, a constitutional law professor, said he believed ProtectMarriage was legally correct in contending that Walker’s ruling would have to be limited to the four people who filed the lawsuit against Proposition 8.

And...

"Under Supreme Court precedent, there's no way a judge can protect plaintiffs other than the named plaintiffs absent a class action," said Amar, who voted against Proposition 8. He said "Boies and Olson foolishly failed to certify" a class in the case.

If this concept were to be accepted and were to stand, another court case would no doubt be filed ASAP to correct that tactical error- or, perhaps the state legislature and Governor would pass an amendment to repeal the amendment passed by voters, with a "judicial mandate" as their justification to override the vote of the people.

Given the combined experience of Boies and Olson, my guess is that there is some reason they did things the way they did, and that this isn't a forgotten mistake on their part.