ludicrously portrayed by Becker as an obstacle to change, a remnant of a previous generation, a man who had led the marriage movement nowhere. This is where the book becomes truly toxic and morally repellent. I’ve been a part of this movement for twenty-five years, either as an activist speaker/writer or as a close observer on this blog for the last decade and a half. What Becker writes about Evan and the movement is unconscionable, ignorant and profoundly wrong. Evan had the courage to create this movement, and empower it with legal rigor and strategy, when it was far, far less popular than it is now. Without him, quite simply, the movement would not exist for Griffin to now outrageously attempt to claim credit for. Yet this book sweeps Wolfson aside as an actual obstacle to progress because he was concerned that the Prop 8 case was a high-risk high-reward legal strategy that would not be the slam-dunk for national marriage equality that Boies and Olson believed it would be.Now, that view of Wolfson's qualms about the Supreme Court challenge possibly leading to a rout is only tenable in hindsight--yes, it it worked out. I mean it really worked out. But that doesn't make Wolfson's qualms foolish before the event.
Beside the fact that you had a core of conservatives on the Court who had expressed themselves as hostile to same-sex relationships being accorded constitutional protection, and a swing vote in Justice Kennendy, who had in event years started to swing more to the right than to the left (politically speaking), you had the fact that the Roberts Court has shown itself to be startling in its contempt for precedent and willing to decide cases on issues not reached by the lower courts or raised by the parties. It has been internally inconsistent in its logic, and at times nakedly political. Wolfson cannot really be faulted for fearing an all-or-nothing battle before a bench so unreliable, and so ideologically driven and fractured.
David Boies and Ted Olson pulled it off; they drew to an inside straight, and they deserve a great deal of credit for it. That doesn't mean that those who feared the risk were obstructionist; they were rightly concerned about a Court, a plurality of which was previously hostile to GLBT rights, that has given itself a "roving commission" to do as it sees fit.