"We had a general agreement that the brief had to be more accessible than academic," Dragseth says. "We also felt that an amicus brief was appropriate because they had something to say that all the suit-wearing folks who were likely to file the other briefs could not say. And whether you think athletes should be heard from or not, people do pay attention to them, and we tried to get that message across as clearly as possible."
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. (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. 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 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.
