Forcing the Spring: Inside the Fight for Marriage Equality (14 page)

No, there was simply no truck in playing in Olson’s sandbox, he decided. Unless one of the plaintiffs brought up something that he simply could not allow to go unchallenged, he would stand down.

And that was the problem Cooper was now mulling with his team in a little room down the hall from Judge Walker’s courtroom. Cooper’s argument that there had been no discriminatory intent behind the initiative was potentially undercut by Paul’s testimony about how the Prop 8 campaign slogan, “Protect Our Children,” made him feel. That had to be addressed.

“Good afternoon, Mr. Katami,” Brian Raum began.

Raum, of the Alliance Defense Fund, had been chosen because he had taken Paul’s deposition back in December. His mission on cross was clear: Confront Paul with an alternative interpretation for the slogan “Protect Our Children,” no more, no less.

To that end, Raum played a campaign ad of his own, with the same stick-figure rendering of a child and its parents that had been on the bumper sticker Paul had testified about. The ad featured a couple from Massachusetts talking about how, after that state’s high court legalized same-sex marriage there, their son’s elementary school teacher had read his class a book about a “prince marrying a prince.” “If Proposition 8 fails to pass,” the ad warned, some of the “most profound consequences are for children.”

Spencer, sitting behind his mother and Sandy, felt sick. Listening to that ad, he would later recall, “was absolutely awful. It felt like ignorant people commenting on a life they did not know anything about.” But Raum forged ahead, seemingly confident that if he could show that this was one motivation behind the passage of Prop 8, it would offer a rationale that could survive the animus test and pass constitutional muster.

Directing Paul to a Yes on 8 voter guide, he asked him to read a passage out loud. “We should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay,” Paul read.

Raum pounced. “In fact, that’s what the Yes on 8 on Prop 8 campaign was seeking to protect children from, am I right?” He then circled back to the ad he had just played. “There is nothing in this ad that says that the Yes on Prop 8 campaign wanted to protect children against you because you were bad, right? It didn’t say anything like that, did it?”

“This ad doesn’t literally state—”

“That’s what I’m asking. It does not literally state it, does it?”

“This ad does not literally state that there is a harm. It insinuates one to me—”

“Thank you, Mr. Katami.”

On redirect, Boies had only one point to make: Prop 8 had been about one thing, and one thing only—stripping gays and lesbians of the right to marry. “Was there anything in Proposition 8 about what was going to be taught in schools?” he asked Paul.

“No,” Paul answered.

“No more questions, Your Honor.”

Judge Walker looked at Olson. “Plaintiffs’ next witness.”

Olson took his time with first Kris and then Sandy, his voice soft and steadying, like you might use with a horse known to startle.

Kris described how in 2003 she had proposed to Sandy, “the most sparkliest person I ever met,” at Indian Rock, an outcropping near their home in Berkeley that looked out over the entire Bay Area. She had chosen the place, she testified, so that they could always go back there as they grew old together.

“She didn’t know I had a ring, and we sat down on the rock and I put my arm around her and I said, ‘Will you marry me?’ And she looked really happy, and then she looked really confused.”

“Yes,” Sandy had answered, followed by, “Well, what does that mean? How will we even do that?”

This was before the mayor of San Francisco began marrying gay and lesbian couples at City Hall, Kris said, so “we had to invent it for ourselves.” But while they were in the midst of planning a ceremony, the city began issuing marriage licenses.

The day they were issued one of their own, Kris told the court, she was as “amazed and happy as I could ever imagine feeling.” As a lesbian, marriage was not something she had allowed herself to want, “because everyone tells you you are never going to get it.” Throughout that day, she felt as though she were floating above the ceremony: “Oh, that’s me getting married! I never thought that would happen.”

What, Olson asked, was her reaction when she learned, via a form letter, that the marriage license had been deemed invalid?

“Well, the part of me that was disbelieving and unsure of it in the first place was confirmed. That, in fact I really—almost when you’re gay, you think you don’t really deserve things.”

“And what feelings did that evoke, that experience?”

“I’m not good enough to be married.”

First Spencer, then Kris’s mother, and finally Elliott began to cry. Kris was talking now about how, recognizing that her sexual orientation was something that some people would not like, she had gone to great lengths to be funny, likable, to “develop other traits that people do like.”

“
Oh my God, that’s Chad,” Kristina said.

Kris’s boys had never seen her so vulnerable. She had told them stories about her life, but her manner had been matter-of-fact. “All these years, this has been eating away at her,” Elliott thought, “and I never knew.”

Even Cooper, leaning back in his chair at the counsel’s table, was deeply moved. “They seemed like two of the most decent, likable, friendly, good people that you would ever want to meet,” he said, recalling their testimony years later.

In the days and months ahead, there would be times when the plaintiffs would wonder whether Cooper’s heart was really in this fight. That wasn’t it, not exactly. For him, the question of whether the Constitution mandated same-sex marriage was an easy one. But, he said, “I don’t think this is an easy political issue.” He would not say whether he would have voted for or against Prop 8 had he lived in California, but it was clear that his views were more nuanced than his clients’, the initiative’s proponents. Listening to Kris testify, he said, reminded him of “why this is such an agonizingly difficult issue.”

“What was going through my head? The best I can do is say that I believe that her position, and the view that many people take in favor of allowing people like her and her partner to get married, is a legitimate position that I respect.”

Olson, oblivious to the effect this was having on his opponent, pressed on. He was having a hard enough time not breaking down himself.

As Cooper had expected, Olson preemptively asked Sandy about her first marriage, and whether she was sure that she was gay. “You’ve lived with a
husband. You said you loved him. Some people might say, ‘Well, it’s this and then it’s that and it could be this again.’ Answer that.”

“Well, I’m convinced because at forty-seven years old I have fallen in love one time,” she replied, “and it’s with Kris.”

Why, then, he wanted to know, did the two women not try to marry again when the California Supreme Court struck down the law that had banned cities like San Francisco from issuing them a license?

“I don’t want to be humiliated anymore,” Sandy said. “I told Kris, ‘I want to marry you in the worst way, but I want it to be permanent and I don’t want any possibility of it being taken away.’”

What sorts of awkward or humiliating situations did they face as a result of not being married? Olson asked. “Give the court some examples of things in everyday life.”

Sandy described picking up Kris’s boys from school. She thought of herself as their stepmother, but she would have to explain that she was “the domestic partner of their mother.” At the doctor’s office, forms asked if patients were single, married, or divorced. There was no box for them, like they didn’t even exist. And how when they went to stores together, someone was always asking if they were sisters, a question that meant they had to decide whether to come out to a perfect stranger or simply buy the microwave they were there to get.

“The decision every day to come out or not come out, at work, at home, at PTA, at music, at soccer, is exhausting,” Kris said. “I’m a forty-five-year-old woman. I have been in love with a woman for ten years, and I don’t have a word to tell anybody about that. I don’t have a word.”

“Would a word do it?” Olson asked.

“Well, why would everybody be getting married if it didn’t do anything? I think it must do something.”

If the courts of the United States were ultimately to decide that same-sex couples did have a constitutional right to marry, “do you think that would have an effect on other acts of discrimination against you?” Olson asked Kris.

“Objection, Your Honor.” Raum stood. “Speculation.”

“Close, but objection overruled,” Walker said. “State of mind. You may answer.”

“I believe for me, personally as a lesbian, that if I had grown up in a world where the most important decision I was going to make as an adult was treated
the same way as everybody else’s decision, that I would not have been treated the way I was,” Kris said.

“There’s something so humiliating about everybody knowing that you want to make that decision and you don’t get to—that, you know, it’s hard to face the people at work and the people even here right now. And many of you have this, but I don’t. So I have to still find a way to feel okay and not take every bit of discriminatory behavior toward me too personally, because in the end that will only hurt me and my family.

“So if Prop 8 were undone, and kids like me growing up in Bakersfield right now could never know what this felt like, then I assume that their entire lives would be on a higher arc. They would live with a higher sense of themselves that would improve the quality of their entire life.”

“Thank you, Your Honor,” Olson said. “I have no further questions.”

Neither did Cooper’s team. At 4:02
P.M.
, court adjourned for the day. Spencer made a dash for Kris. “Mom, do you know how much I love you, and how proud I am of you?” he asked, enfolding her in a hug. Kris’s mother joined in. “The whole darned court was crying,” she said.

Back at the Gibson Dunn offices that night, the mood was celebratory. Walking into the war room where everybody had gathered, Olson was all smiles, shouting, “A standing ovation for our plaintiffs!”

The day had gone off with very few glitches from a media standpoint. The image from the rally that had moved on the Associated Press wire service had been “theirs,” Kristina reported: no men in wedding dresses. Olson’s postcourt dramatic reading of his opening statement had made the local news. Yusef Robb, the team’s rapid response man, shook his head at it all.

“There are some people in the world who can make crazy shit happen, and Chad’s one of them,” he said. “Everyone lost hope after Prop 8 won and said, ‘What should we do?’ But this guy got it done. It’s Ted Olson and David Boies and a full trial!”

Legally, Boies crowed about the fact that Cooper hadn’t cross-examined three of the plaintiffs and had barely questioned Paul—“a mistake,” he called it. Sipping a diet A&W root beer and nibbling on pretzels, he mused about what
he would have done had he been in Cooper’s shoes. “
When you get hit like that, you need to pull the sting out of it. For example, Paul and Jeff did not get married between June and November of 2008. They had an excuse for that, but it wasn’t perfect. You go, ‘How important was it to you?’”