Since both Kluwe and Ayanbadejo have spoken out so many times in support of same-sex marriage, Dragseth says he had a pretty good idea of what they wanted to say in their brief, thus reducing the need for line-by-line edits and long teleconference calls. “These guys know what they believe, and they don’t let PR concerns get in the way,” Dragseth adds.
The Supreme Court’s nine justices are scheduled to hear oral arguments in the case on March 26 and to consider another New York case that challenges the constitutionality of the federal Defense of Marriage Act the following day, according to sibling publication The Blog of Legal Times. (In the latter case, a legal team led by Paul, Weiss, Rifkind, Wharton & Garrison litigation partner Roberta Kaplan and the American Civil Liberties Union are representing Edith Windsor in in her constitutional challenge to DoMA.)
Gay marriage advocates are being represented in Hollingsworth by a bipartisan legal team fronted by legal luminaries David Boies of Boies, Schiller & Flexner and Theodore Olson of Gibson, Dunn & Crutcher, whose unlikely alliance announced three years ago has resulted in a book deal. (The Am Law Litigation Daily, a sibling publication, conducted a Q&A with Olson in December about the Prop 8 case.) Olson and Boies face a formidable adversary in ex-solicitor general Paul Clement, who quit his former firm, King & Spalding in 2011, over the DoMA case and joined Bancroft, a bastion of legal conservatism in Washington, D.C.
U.S. District Judge Vaughn Walker in San Francisco, who has since retired, overturned California’s Prop 8 law in August 2010. Last year the U.S. Court of Appeals for the Ninth Circuit upheld Walker’s decision, ruling that the state’s Prop 8 ban on same-sex marriage was unconstitutional. The Supreme Court will now determine the law’s legality, and Kluwe and Ayanbadejo hope their opinion has an impact on the ultimate decision.
“If the Court reverses the Ninth Circuit, many professional athletes will take their cues from that,” write Kluwe, Ayanbadejo, and their attorneys in the brief. “And that will cause a ripple effect as even more people follow their role models, their leaders, their heroes. Those against same-sex marriage? They will use it as yet another tool to support their preconceived idea that gay Americans, who pay their taxes, serve in our military, and by every measure of societal participation are superior neighbors and citizens, are instead second-class members of society.”
Despite all the legal firepower involved in the case, Dragseth says he believes the main lesson to be gleaned from Kluwe and Ayanbadejo’s support for same-sex marriage is how it’s changed the culture of the NFL and in turn possibly affected the league’s legions of fans.
“I think people take them a bit for granted now because their message has gone over pretty well, but that was not a guaranteed thing when they started talking,” Dragseth says. “They could have been pretty lonely on their teams if things had spun the other way. The fact that they are at least being allowed to talk and are being respected by their teams and teammates has led to things like the San Francisco 49ers' swift action when one of their players made an ill-advised comment.”
The 49ers—whose legal affairs director Hannah Gordon we wrote about last month—sent cornerback Chris Culliver to sensitivity training for comments he made before the Super Bowl about the possibility of having a gay teammate.
“I don’t think you would have seen the team react so quickly and decisively if it didn’t already know—largely from seeing the reaction to Kluwe and Ayanbadejo—that the reaction would be received well,” says Dragseth, acknowledging that more work needs to be done.
At least two rookies taking part in the NFL’s annual scouting combine have said that some teams asked them about their sexual preference. The league itself has promised to investigate, even as executives from at least two other teams have expressed interest in knowing more about the sexuality of Notre Dame linebacker Manti Te’o, who made headlines earlier this year after being caught up in a girlfriend hoax scandal involving a friend who has admitted to being gay.
Skadden Scores in Blocking Garden State Sports Gambling
The NFL, along with Major League Baseball, the National Basketball Association, National Hockey League, and NCAA can thank Skadden, Arps, Slate, Meagher & Flom partner Jeffrey Mishkin for securing a summary judgment ruling and permanent injunction blocking New Jersey Governor Chris Christie’s plan to bring sports gambling to the Garden State from taking effect.
U.S. District Judge Michael Shipp in Newark—a former Skadden associate—upheld a 21-year-old law late Thursday prohibiting sports betting in all but four states, none of them New Jersey, according to The Associated Press. The Garden State, which is being represented by Gibson Dunn’s Olson, is seeking to boost its ailing gaming industry by upwards of $500 million by introducing sports betting. (Delaware lost a similar battle in 2009 to expand its sports lottery.)
Mishkin, who served as chief legal officer for the NBA until joining Skadden in 2000, is representing the leagues and the NCAA in the case along with litigation partners Anthony Dreyer and Karen Hoffman Lent.
