Forcing the Spring: Inside the Fight for Marriage Equality (16 page)

Burke, an Anglo-Irishman considered the father of American conservatism, had counseled “infinite caution” when “pulling down” or expanding “an edifice which has answered in any tolerable degree for ages to common purposes,” without “having models and patterns of approved utility before his eyes.”

The point Thompson was making with his obscure reference, Cooper would later explain, was that it was prudent, not irrational or bigoted, for voters who supported Proposition 8 to be reluctant to break with tradition when it came to an ages-old institution. And Cooper could care less that the reference passed over the heads of many in the courtroom; he was sure the one person at whom it was aimed would understand the reference: Justice Kennedy, who had quoted Burke in one of his own opinions.

Thompson, pressing that point, confronted Cott with her own words. As adaptable as marriage in this country has been, during a 2004 NPR interview Cott had acknowledged that allowing same-sex couples to wed would represent a “distinctive watershed” moment.

“The consequences of same-sex marriage is an impossible question to answer—yes or no?” Thompson asked.

“You’re asking me to say yes or no?”

“I am.”

“Right. I believe no one predicts the future that accurately.”

“
That was, if not the most important concession made by one of the other side’s witnesses at trial, in the top five, because it went to the heart of our Burkean argument,” Cooper later said.

The testimony was hardly the “disaster” that Prop 8’s defenders claimed it to be during their midday news conference, and the consensus of Olson and the team was that Cott had held up well under pressure. But Thompson had scored some points.

“A little different than yesterday,” Kris’s mom said to Sandy.

The next witness called was George Chauncey, a history professor at Yale University. He had authored several books on the history of discrimination against gays and lesbians, and his testimony on that subject was critical to convincing the court that it ought to subject Proposition 8 to heightened scrutiny.

Olson was worried about tasking Terry Stewart, the chief deputy city attorney, with the direct examination of such an important witness. At one level, his trepidation was a little patronizing. It was Stewart, after all, who had won the right for gays and lesbians to marry at the California Supreme Court long before Olson had gotten involved in the cause. And it was Stewart who had been integral to finding Chauncey and ten of the other witnesses who would testify on behalf of the plaintiffs. But the team was still gelling, and Olson had never seen Stewart in court. The night before, he had wondered out loud whether Boies ought to handle the direct.

“My question is, how good is she going to be?” Olson asked. “Not the witness. Her.”

Boies, who had been helping Stewart prepare, assured Olson that she was ready. Besides, he said, Chauncey was not the most flexible of witnesses. It would be jarring for him, this late in the game, to change horses.

Now, as Stewart guided Chauncey back through time, the court was riveted. That at times the audience had to strain to hear the soft-spoken professor did nothing to diminish the ugliness of his narrative.

Throughout much of modern American history, gays and lesbians were demonized as criminals and perverts. They were prohibited by decency standards from being depicted in Hollywood movies, lumped in with Communists and barred from government service, hunted down in the bars where they congregated, and thrown in jail or summarily fired for their private sexual conduct. Proposition 8, Chauncey testified, was just the latest manifestation of a sustained campaign of prejudice, and its messaging echoed past efforts to portray gays and lesbians as enemies of children.

Beginning in the late nineteenth century, with the emergence of gay and lesbian subcultures in large American cities, police began looking for innovative new ways to combat what they deemed “degenerate” homosexual conduct. Sodomy laws, which would not be struck down as unconstitutional until 2003,
had been on the books in one form or another since colonial-era prohibitions against nonprocreative sex, but they required catching someone in the act.

And so disorderly conduct statutes became the go-to tool for stepped-up enforcement, resulting in tens of thousands of arrests in the mid-twentieth century, especially after the New York Legislature specified that one form of disorderly conduct involved standing about in public for the purpose of soliciting a man for unnatural sex acts. Chauncey testified that the law was even used to arrest people for attending parties at private homes.

Liquor licensing offered another tool, Chauncey said. In 1933, New York became the first of many states to prohibit any establishment from serving gays and lesbians, or allowing them to congregate on their premises. To be sure that bartenders who suspected customers of being gay would “86” them, publicly asking them to leave, the police sent plainclothes officers to loiter in establishments. They looked for women sporting short hair or men whose dress was unconventional or effeminate. In one case that Chauncey stumbled across, they even used the fact that two men were talking about opera as evidence that they were gay, since that was “something that no real man would do in the 1950s,” Chauncey said.

The result was that gay culture was driven further underground, to establishments willing to pay off police, often run by criminal syndicates. Gay life was thus enmeshed in a “web of criminality,” Chauncey explained, and the fear of being arrested kept many people from coming out at all.

“Of course, this also meant that fewer heterosexuals, or relatively few heterosexuals, thought that they knew gay people,” he told the court, which made it “easier for demonic stereotypes to develop, given that real living gay people had to be so careful to hide themselves.”

The most dangerous of those stereotypes developed between the 1930s and 1950s, Chauncey said, with a series of police and press campaigns that identified homosexuals as child molesters. In the fall of 1950,
Coronet
magazine published an article entitled “New Moral Menace to Our Youth.” Chauncey read an excerpt for the court:

“Once a man assumes the role of homosexual he often throws off all moral restraints,” the article charged. “Some male sex deviants do not stop with infecting their often innocent partners: they descend through perversions to
other forms of depravity, such as drug addiction, burglary, sadism, and even murder.”

Soon, Senator Joe McCarthy would be trying to root out homosexuals from government in addition to Communists, and in 1953 one of President Dwight Eisenhower’s first acts in office was to ban homosexuals from serving in the federal government in any capacity.

It would take more than a decade and a half, and a sea change in the popular culture, for the gay community to become angry enough to revolt. By 1969, protesters had taken to the streets on a variety of fronts—to end the Vietnam War, to protest the treatment of blacks in the South, to demand equal rights for women. That year, on a hot summer night, when the police raided a gay bar in Greenwich Village called the Stonewall Inn, the customers took a stand. As word of the demonstration spread, more than five hundred demonstrators showed up, shouting “gay power” and clashing with police in a days-long riot. Stonewall marked a turning point, spawning a movement that saw gay rights groups spring up in nearly every major city in the United States.

A mentor had once told Stewart that the art of being a good lawyer was “to make the other side look like shit and then give the judge the tools—the law—to flush them down the toilet.” From her point of view, the history that Chauncey had just recounted went a ways toward both goals. But in the event that the court was reluctant to apply heightened scrutiny to a new class of people and instead wanted to decide the Prop 8 case based solely on a
Romer
-like analysis that it was motivated by animus, she needed to link the past to the present.

She began with the backlash that had occurred when municipalities, responding to the newly organized gay community, began including gays and lesbians in antidiscrimination measures. Most, Chauncey told the court, ended up getting stripped from the books as the result of campaigns like the one Anita Bryant, a famous Baptist singer, organized in Florida in 1977.

Bryant’s “Save Our Children” campaign was overt in its animus, with ads that played into the stereotype of gays as child molesters. One that Stewart introduced into the record claimed that the “recruitment of our children is absolutely necessary for the survival and growth of homosexuality, for since homosexuals cannot reproduce, they must recruit, must freshen their ranks.”
The official Prop 8 campaign material was more coded, but Chauncey said its “Protect Our Children” messaging evoked the same stereotype.

“You have to ask the question, protect against what?” he said, adding an expert’s perspective to Paul’s earlier testimony about how the ads had made him feel. “It evokes, for me, the language of saving our children, the need to protect children from exposure to homosexuality. Not just from exposure to homosexuals as presumed child molesters, but protecting them from exposure, from the idea of openly gay people.”

Kris, listening as Chauncey wrapped up the testimony for the day, looked at Sandy. At family get-togethers, Kris was still referred to as Aunt Sandy’s “good friend, Miss Kris.” One of Sandy’s sisters did not acknowledge their relationship, or the case. Her brother worried that the front-page treatment of the trial would force him to have to explain their relationship and legal battle to his nine-year-old twins, whom he felt were too young to be told. Sandy loved her brother and did not want to be overly confrontational, so she had simply said that if they were old enough to know about marriage, they were old enough to understand.

But the notion that her nieces and nephews needed to be shielded from something about her had hurt. Sandy yearned for the support and validation of her closest family members, but it was elusive.

“It’s really hard on Sandy,” Kris said. “I think they would all just like to blink their eyes and have me be a man.”

Y
our Honor, we would object!” said David Thompson, jumping to his feet.

It was the afternoon of the third day of trial, and the AFER legal team had just sprung what was referred to internally as “the Tam Surprise.” Lawyers for the plaintiffs had stayed up most of the night putting together a mini-movie. It featured clips from the videotaped deposition of Hak-Shing William Tam, the proponent of Prop 8 who had attempted to withdraw from the case. So far, Judge Walker had refused to allow him to do so, and the idea was to use Tam’s own words to punctuate Chauncey’s academic testimony that prejudice had fueled the Proposition 8 campaign.

Cooper, clearly caught off guard, began pacing. He had fully expected Olson to call Tam at some point, and he had a plan for how to deal with that. But with no Tam on the stand to question, he had no way to try to mitigate the damage.

Moving evidence like the Tam deposition into the record generally requires asking a witness about it. Thompson argued that Chauncey, the witness the plaintiffs were using, was not qualified to comment on Tam’s views because he had not covered that ground in his expert report. Terry Stewart interjected, noting that Thompson, cross-examining Chauncey that morning, had suggested that attitudes on gays and lesbians had become far less hostile over time.

“He opened the door to it,” Stewart said. “This goes directly to that topic.”

“Well,” Judge Walker agreed, “I think he did open the door to that subject.”

Cooper had never disputed that gays and lesbians suffered a history of discrimination; he had been willing to stipulate to that when he and Olson had discussed how they might streamline the trial. And so Thompson had instead spent much of the morning just trying to show that the discrimination described by Chauncey was a thing of the past. Wasn’t it true that Hollywood’s censorship of gay characters had given way to box-office hits like
Brokeback Mountain
and
Philadelphia
? he had asked. Didn’t the federal government, with the exception of the military, now ban discrimination based on sexual orientation? Hadn’t attitudes, particularly among young people, undergone a sea change?

And while Thompson’s attempt to portray House Speaker Nancy Pelosi as a powerful ally of gays and lesbians—she had not attended a gay pride parade in her hometown of San Francisco since 2001—had prompted Cleve Jones to waggle his hand and whisper, “Not so much,” to Kristina, Kristina was worried that Thompson’s cross-examination had been more effective when he turned to President Obama.

“Do President Obama’s views on same-sex marriage reflect a moral disapproval of gays and lesbians?” Thompson had asked.

“I believe they reflect a sense that gay relationships are not equal to heterosexual relationships,” Chauncey parried.

“Is it possible for someone to have that position and not morally disapprove of gays and lesbians?” Thompson pressed.

“It would be possible,” Chauncey finally conceded.

Kristina knew that the president’s views presented both a legal and a media problem.
Boies had even taken to publicly calling Obama out, with statements like, “I hope my Democratic president will catch up to my conservative Republican co-counsel.”

The night before, Kristina had contemplated putting out a press release clarifying that President Obama had actually opposed the passage of Prop 8 as a candidate because he did not believe in writing discrimination into the law. In other words, while he personally believed marriage should be for
heterosexual couples, he opposed the passage of same-sex marriage bans that restricted marriage to heterosexual couples. She had dropped the idea, though, after others in the war room argued that it would be hard to present that cognitively dissonant position to the public in a way that would actually help their case.

But as Tam’s deposition began to play, Kristina’s fear that Thompson’s use of the president might have succeeded in muddying the waters dissipated as Tam described in graphic terms what had motivated him. He confirmed that he had sent out campaign literature declaring that the city of San Francisco was “under the rule of homosexuals,” who wanted to legalize “having sex with children,” and that he believed that if same-sex marriage were legalized, children would find homosexuality irresistible.

“My daughter told me her classmates chose to become lesbians and experiment with it after they noticed that same-sex marriage, they think it is a cool thing,” Tam said. “They have some problem getting dates from boys, so same-sex marriage, since it is in the air, they think, ‘Oh, then why not try girls?’”

Listening to it was one of the low points of the trial for Cooper. When he had been brought on board to argue the case, he did not have a choice of clients: The Alliance Defense Fund had already filed a motion to intervene on behalf of the official proponents of Proposition 8. He was hired to represent the ProtectMarriage.com campaign and five California citizens who had collected voter signatures and petitioned to place Proposition 8 on the ballot: Besides Tam, they included Republican state senator Dennis Hollingsworth, Mark Jansson, the Mormon Church’s representative on the campaign’s executive committee, and two others.

The first Cooper heard of Tam’s views was at the December 1, 2009, argument before the Ninth Circuit, when Olson’s team had flagged Tam’s writings during the Ninth Circuit discovery fight. Matt McGill had guessed correctly that Cooper was behind Tam’s subsequent attempt to withdraw.
Cooper had refused to continue to represent Tam, leading Tam’s new lawyer, a man who had served jail time for blocking an abortion clinic, to file the motion. In it, he told the court that Tam no longer wished to participate in the case because he did not like “the burden of discovery and the privacy invasion associated with being a defendant.”

Cooper would later say that he had always known that some people had voted for Prop 8 out of ignorance or hostility toward gays and lesbians. But “I believed from the beginning until this day that animus was not the truth of the Prop 8 campaign.” His job, as he saw it, was to keep the other side from making it appear as though a “fringe” element was what drove the campaign.

Having Tam continue to represent the proponents in court was not helpful in terms of making that case. Lunch could not come soon enough.

“
Trial is a young man’s game,” an exhausted Olson had told his wife, Lady, before heading to court that day, and throughout much of the morning and early afternoon he had struggled to stay alert.

But the news that arrived on his smartphone at 1:57
P.M.
Pacific time jolted him awake. The Supreme Court, after considering Cooper’s arguments against broadcasting the trial, had made its temporary prohibition on broadcasting the trial permanent.

Olson read the opinion as Chris Dusseault examined the team’s next witness, Letitia Peplau, a professor of social psychology at UCLA. Peplau had prepared an expert report showing that married couples do better than their nonmarried counterparts on a host of fronts: They are likely on average to be healthier and wealthier. And because marriage creates an “exit barrier” that makes it more difficult to separate, they and their children enjoy greater stability.

Most gays and lesbians—74 percent according to one Kaiser Family Foundation study—would like to marry someday, she said, and while she acknowledged that there were no definitive studies on the topic, she saw no reason why they would not enjoy the same benefits that married heterosexual couples did if allowed to do so. As for the impact on straight married couples, she had this to say: “It is very hard for me to imagine that you would have a happily married couple who would say, ‘Gertrude, we’ve been married for thirty years, but I think we have to throw in the towel because Adam and Stuart down the block got married.’”

It was important testimony, but from a news cycle vantage point, both it
and Cooper’s bad morning had just been eclipsed. On a vote of five to four, with Justice Kennedy once again siding with the conservatives, the Supreme Court declared that Judge Walker had improperly “attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district,” and it bought Cooper’s argument that witnesses might be subject to harassment if the proceedings were televised.

The four liberal justices vehemently disagreed. Citing the nearly 140,000 comments that had been delivered to Judge Walker’s chambers, Justice Stephen Breyer asked, “How much more ‘opportunity for comment’ does the Court believe necessary?” The majority, he concluded in his dissent, “identifies no real harm” to justify its “extraordinary intervention” on an arcane matter that ought to have been left to Judge Walker and the Ninth Circuit, which had after all signed off on the plan.

Olson put the best face on the decision, both internally and when questioned by the press. The Court’s decision meant only that five justices did not like the notion of cameras in the courtroom, which was not a big surprise given that the Supreme Court had for years resisted pressure to televise its own proceedings. It had, he insisted, nothing to do with the merits of their case.

Still, other members of the team could not help but think the decision, with its personal asides, was a bad omen. “
This was a smackdown of Judge Walker,” McGill told the young gay lawyer Enrique Monagas—“the Big E,” McGill had nicknamed him—who had filed the case.

Amir Tayrani, a precisely spoken Gibson Dunn associate who had worked closely with McGill on Olson’s Supreme Court cases, noted that it wasn’t just Walker the Supreme Court had singled out. The majority had buttressed its finding that witnesses could be subject to intimidation by footnoting Olson’s own words in his pending challenge of the nation’s campaign finance laws. In a brief filed months before he first met with the Reiners, Olson had pointed to “widespread economic reprisals against financial supporters of California’s Proposition 8” to argue that organizations like his client, Citizens United, should not be forced to disclose political donors.

“Troubling,” was how Tayrani put it.

When Olson had first asked Tayrani to work on the case, the thirty-two-year-old associate had been skeptical that the Constitution contained a right
for gays and lesbians to marry. He had once clerked for one of the most conservative judges on the Ninth Circuit, and he generally took a like-minded view of the law.

But as Tayrani had immersed himself in the case law, he had come to believe that bans like Prop 8 were indefensible and ought to be struck down. Now he had a personal stake as well in not seeing the plaintiffs lose. “
I haven’t had many gay and lesbian friends,” he said. “Just talking to our clients and realizing how much they want to marry and that we’ve been keeping them from being happy—it has been eye-opening.”

It had been a draining few days for everyone on the team, and not just because of the Supreme Court ruling. Listening to the cross-examinations had at times been maddening, as when Thompson repeatedly noted that the gay rights movement had historically never made marriage a priority.

“That’s a bit like suggesting that because slaves never demanded the right to run for governor, they did not want their freedom,” Cleve Jones said after court adjourned for the day. Growing up, he had prayed every night, “Please, God, fix me.” When someone at school beat him up and called him a homosexual, he had looked the word up in a book his father, a psychologist, kept in the study. It was in the same chapter as genital deformities and pedophilia.

It was true that the burgeoning gay rights movement he had joined when he moved to San Francisco in 1973 was informed by women’s liberation and the sense of sexual freedom sweeping the nation in the late 1960s and early 1970s. But to Jones, its early priorities, so modest as to be sad, had more to do with the reality of the times: Just to be able to cease being invisible and live out in the open seemed a lot. And later, during the height of the HIV/AIDS crisis, the goal was simply to stay alive when so many friends were being buried, which Jones had managed to do despite being stricken.

To calm his nerves, he decided to walk over to City Hall and pay his respects to his mentor, Harvey Milk. He would have loved the audacity of the trial, and especially the sense of self-worth that infused it.