Course to the Court

When Mollie Lee got her New College degree in anthropology and biology in 1999, she expected it might take her back to field work in the rainforest. Instead, it took her to the U.S. Supreme Court as an attorney with a front-row seat in a landmark gay marriage case.

Lee was part of the team from the San Francisco City Attorney’s office that fought for the rights of same-sex couples for nearly a decade. They were rewarded June 26 with a ruling that in effect legalized gay marriage in California.

She joined the team midway through the fight, but in time for a crucial stage: The challenge in federal court to California’s Proposition 8, which had banned gay marriage in the state.

They won a major battle in August 2010, when U.S. District Court Judge Vaughn Walker ruled that the voter initiative violated the U.S. Constitution. That triggered an appeal and legal maneuvering that eventually sent the case to the U.S. Supreme Court in March. Lee and her colleagues traveled to Washington for the oral arguments.

“It was awe-inspiring to be in the highest court in the land and hear arguments on a case I’d been on since the beginning,” she said.

It started with her arrival that morning, seeing crowds of people outside, many of whom had camped out all night in the snow, hoping for a seat or simply wanting to be on hand for the historic case.

Inside the court, she said, it was a study in contrasts. “On the one hand, it’s very solemn, with the high ceilings and the justices in their huge chairs. And yet they seemed very much like real people, genuinely wrestling with the issue. They are nine people who are doing their best.”

Her journey to that day began in many ways at New College, where Lee studied anthropology and biology with her advisor Prof. Anthony Andrews, and did field work in Guyana. She planned to be an ethnobotanist, researching medicinal plants and isolating compounds that would cure disease.

She moved on to graduate school at the University of Georgia, where her research led her to realize there were complex intellectual property issues involved in the field – and realized she found those issues interesting.

She never studied law at New College, but after getting her master’s degree in anthropology, she moved to San Francisco, worked for the League of Women Voters, and applied to Yale Law School.

“I sent in the whole packet of my written evaluations,” she said. “I was a little worried about applying to law school, with no letter grades, but one of the great delights was that it didn’t matter,” she said. In fact, she believes it helped. Yale Law doesn’t give letter grades, and most classes are seminars with only a few students – much like her alma mater.

“One the one hand, I felt very odd there, my first experience in the Ivy League. But the academic experience made me feel very much at home,” she said. Her New College experience of delving into complex issues and her training in critical thinking were keys to succeeding in law school, she says.

After graduating in 2006, she returned to San Francisco, where her mother lived, and clerked for the Ninth Circuit Court of Appeals for the Judge James R. Browning, who died in May 2012. Browning served 50 years on the Ninth Circuit, the longest tenure in the court’s history, and wrote more than 1,000 opinions. In her office, Lee has a picture of Browning, holding the Bible at the inauguration of President John F. Kennedy.

Browning liked his clerks to write short opinions, which also played to Lee’s New College-honed skills of analyzing and summarizing information clearly and concisely.

She moved on to a job defending death penalty cases, work she loved but found difficult, and then in June 2008 moved to an opening with the San Francisco City Attorney’s Office specializing in election law, building on her experience with the League of Women Voters.

She joined at an exciting time: There was a brief window in summer and fall 2008 where gay couples could marry, and some 18,000 same-sex couples did so. “There was something profoundly moving about all of the same-sex couples marrying, when they never thought they could,” she said.

The California Supreme Court had ruled that the state’s marriage statutes violated its constitution – a decision prompted by City Attorney Dennis Herrera’s efforts. But in November 2008, voters approved Proposition 8, a constitutional amendment, with 52 percent of the vote. That closed the window.

But the City Attorney’s team quickly picked up the fight again, first challenging the motion on procedural grounds. Chief Deputy City Attorney Therese Stewart came into Lee’s office with an election-related question. They started talking and before long, Lee was on the team.

It’s an issue that touches Lee personally. She had two uncles, both gay, who died of AIDS in the 1980s. “I grew up really feeling the loss of my two wonderful uncles,” she said. “I think the work on these cases has been particularly meaningful to me because if they were still around, I’d want them to be able to be married and raising kids.”

Her office quickly joined what became known as the Perry case, supporting plaintiffs represented by renowned attorneys Theodore Olson and David Boies.

Judge Walker scheduled a relatively quick trial, in January 2010. Fall and winter of 2009 turned into a hectic few months, packed with document discovery, taking and defending depositions and preparing witnesses.

Lee worked with economists from the city and from University of Massachusetts, and with “factual” witnesses, like Ryan Kendall, a young gay man who had been subjected to conversion therapy and suffered from depression. Kendall now is pursuing his degree at Columbia; Lee finds him inspirational.
The trial lasted 10 days, and the ruling, in August 2010, provided just what they had wanted: It said that Proposition 8 denied same-sex couples equal protection and violated their fundamental right to marry.
The trial court entered a detailed order finding that same-sex couples are the same as opposite sex couples in every way that matters for marriage– they fall in love, form long-term relationships, raise children together and would benefit from the stability and dignity of marriage in the same way as heterosexual couples.

Predictably, Proposition 8 supporters appealed and the case went to the Ninth Circuit. Lee worked on the Ninth Circuit briefing and helped prepare attorneys for oral argument.

In February 2012, a three-judge panel of that court granted same-sex marriage supporters a narrowly defined, 2-1 victory. That led to the appeal to the U.S. Supreme Court.

Despite the big-name attorneys on the case, the San Francisco team’s efforts gained notice. The New York Times featured them in a front-page story and photo on March 19, with lead attorney Olson praising the “superb” quality of the team’s work.

“My mother was very excited,” she said, “And I got a nice outpouring of support from New College alums, a lot of Facebook posts and shoutouts.”

After the oral arguments, both the San Francisco team and many observers predicted a victory, again on narrow grounds. In an April interview, Lee said she expected the court would push the issue back to the states. She noted Justice Anthony Kennedy’s remarks, asking why the Court took up the case in the first place.

That type of result would leave the trial court ruling in place – “and we won in the trial court,” she said.
And on June 26, that’s just what happened. Lee and her colleagues came in to the office early to be ready for the announcements from the East Coast.They crowded around a computer watching SCOTUSblog, a popular website for coverage of the Supreme Court.

“We all got the office realty early, six-thirty California time. We’d been on watch for over a week, because the Supreme Court doesn’t announce in advance when they’re going to release a particular ruling,” Lee said.

But it was the last day of the session, and the two major same-sex marriage cases, Perry and the Defense of Marriage Act, remained undecided.

“We were there huddled around the screen,” she said. But being attorneys, and close to the case, they saw the results coming. Justices Kennedy and Roberts were the only ones who had not written an opinion from the March sitting when those cases and others were heard. The attorneys expected that one would write the decision on the case of the Defense of Marriage Act, and the other one would write the Perry decision.
The DOMA case came up first, with Kennedy as the author. That left Perry for Roberts, and given the chief justice’s interests, they expected him to say the Proposition 8 supporters had no legal standing to appeal the trial court ruling – essentially making gay marriage legal in California.

But as the decision appeared on the screen, there was a lot of yelling, rushing to print copies and see the actual ruling, and start writing their own analyses of the decision.

While the Supreme Court decision was not the definitive answer on same-sex marriages many had hoped for, Lee believes it’s just a matter of time.

“Once you start thinking about why you’re treating a group of people differently, you realize that there’s no good reason for it,” she said. “I’m very confident that in a matter of decades it will be resolved nationally. I hope it’s sooner.”
 

 

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