Joshua Schiller, a partner with Boies Schiller Flexner. (Courtesy photo)

More than a decade ago, California's voters approved Proposition 8, a single-sentence attack on the liberty and dignity of their fellow Californians and Americans that proclaimed that "only marriage between a man and a woman is valid or recognized in California."  Tuesday marks the 10th anniversary of the federal court decision in Perry v. Schwarzenegger that struck down Proposition 8 as unconstitutional and recognized the relationships of same-sex couples "for what they are: marriages."

In the decade that followed, the courts—the Supreme Court in particular—issued a number of landmark decisions expanding rights and protections for members of the LGBTQ community.  In remembering the Proposition 8 decision, I cannot help but think of the other milestone cases that were decided in the 10 years after Perry and my own contribution, however small, to the great work done by the countless activists, advocates, and lawyers who have fought (and bled) for the equal treatment and freedoms of all people, regardless of who they are or who they love.

On Aug. 4, 2010, after a lengthy bench trial, Judge Vaughn Richard Walker held that Proposition 8 violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Devoting almost 50 pages to meticulous findings of fact that refuted the Proposition 8 proponents' arguments as to the legitimacy of the ballot measure, Judge Walker's opinion laid bare the fact that the initiative was motivated by animus and privately held beliefs in moral superiority: "Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."  The measure, Judge Walker found, "prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis."

As a young associate with Boies Schiller Flexner LLP, I worked on the Proposition 8 challenge with David Boies and Ted Olson (of Gibson, Dunn & Crutcher LLP) and a team of other lawyers, consultants and experts. Both David and Ted have written eloquently and extensively on their work in the Perry case, and I will not try to retrace their words here. Suffice it to say, working with them to vindicate and protect the rights of an entire class of people who had been (and continue to be) greatly mistreated was a singular thrill and honor.

Three years later, on June 26, 2013, the Perry case finally came to an end when the Supreme Court ruled that Proposition 8's proponents lacked standing to appeal Judge Walker's decision.  That same day, the Supreme Court also issued its decision in United States v. Windsor, which struck down the federal Defense of Marriage Act as unconstitutional. In finding DOMA to be unconstitutional, Justice Anthony Kennedy wrote in his majority opinion that the history of DOMA and its enactment "demonstrate that interference with the equal dignity of same-sex marriages" was the "essence" of that law.

While Windsor did not formally recognize federal protection for the right to marry for same-sex couples, it strongly suggested that the court was ready to recognize such a right. A flurry of litigations followed, using Kennedy's decision as a roadmap for bringing a case to the Supreme Court for this inevitable next step. Among them were several cases helmed by David and Ted, reprising their partnership to again help push the law in the right direction.

In 2015, these collective efforts succeeded when the Supreme Court decided Obergefell v. Hodges, and the five-member majority (led, again, by Kennedy) held that the Constitution guarantees same-sex couples the right to marry under the Due Process Clause and the Equal Protection Clause.  "The nature of marriage," explained Kennedy, "is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."  Focusing on the fundamentality of marriage to liberty, dignity, autonomy, and society and the harm wrought on same-sex couples by exclusion from its historical institution, the Supreme Court—through Kennedy's moving conclusion—held that the couples' "hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

That same year, the Greater Councils of New York approached David and me about challenging the Boy Scouts of America's then-existing policy banning openly gay and lesbian adults from serving or otherwise being employed by the Scouts. Together with Scouts for Equality, we worked to identify potential litigation opportunities, ultimately finding two outstanding individuals who, but for their sexual orientation, would have been employed by the Scouts. Our plan was simple: pursue actions under Title VII for employment discrimination, arguing that in firing (or not hiring) the individuals, the Scouts had discriminated against them on the basis of their sex (for example: because the Scouts did not consider a gay man to be sufficiently "male" and discriminated against him accordingly). Before we needed to proceed with any legal action, however, the Scouts changed their policy to allow openly gay adults into the organization. Less than two years later, they went a step further and stopped discriminating on the basis of gender identity. Now, the Scouts' doors are open to children of all genders.

But while we did not have the opportunity to test our legal strategy in the courts, it was nevertheless vindicated earlier this year when the Supreme Court decided Bostock v. Clayton County.  In Bostock, the Court again landed on the side of LGBTQ justice: In an opinion penned by Justice Neil Gorsuch the court issued a landmark ruling protecting the rights of gay and transgender employees under Title VII of the Civil Rights Act of 1964, holding that the statute's prohibition on discrimination "because of sex" necessarily encompasses discrimination on the basis of sexual orientation and gender identity. Grounding the decision in the plain text of Title VII, Gorsuch wrote: "The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex." That answer sends a message "equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions."

In some ways, while these decisions have all pushed LGBTQ rights forward, they have not gone far enough. The Court has yet to recognize sexual orientation or gender identity as a suspect or even quasi-suspect class, meaning that laws that discriminate on either of these bases are not yet subject to the heightened judicial scrutiny applied to laws discriminating on the basis of other immutable characteristics, such as race or sex. In Perry, Judge Walker gestured in the right direction, stating that "[a]ll classifications based on sexual orientation appear suspect," while formally holding that California's Proposition 8 could not survive even the low burden of rational basis review.

Kennedy in Obergefell declined to formally enunciate any level of scrutiny, and in effect emphasized the essential right of marriage more than the identities of those to whom it had been denied. And Gorsuch in Bostock, by focusing on the statutory text of Title VII, managed to avoid the constitutional question altogether. The courts' avoidance of the issue is puzzling; such a classification would be a logical extension of the Court's equal protection jurisprudence, and one that is long overdue. Unfortunately, the courts' reticence to take this next step has left the LGBTQ community with diminished protection again discriminatory laws and the oppressive practices undertaken by those openly hostile to LGBTQ rights, as well as those who would use the cloak of "religious liberty" as a thin veil to hide their bigotry and hatred.

Still, the past decade of jurisprudence in this area shows a judiciary on the right path: courts committed to doing what is just, with what they have, in ways that—in one way or another—advance LGBTQ rights. This progress is a testament to the tireless work of countless activists, advocates, and lawyers as well as the courage of the clients they represent, many of whom risk harassment at the hands of those who would oppose the march of liberty.  The fight is not over yet, and it is all too true that justice has often been too little or come too late for those to whom it matters most. But justice is coming, and I am confident that Jutice Kennedy's words from Windsor will prove prescient: The march toward equality proceeds "slowly at first, and then in rapid course."

Joshua Schiller is a partner at Boies Schiller Flexner. Partner Benjamin Margulis contributed research.