Forcing the Spring: Inside the Fight for Marriage Equality (17 page)

Walking into the building, Jones headed for a grand marble staircase. At
the top sits a bust of the gay rights leader, near the office where Jones had found him sprawled on the carpet, shot dead with his stocking feet sticking out into the hallway. He gently patted the bust’s bronze cheek.

“Oh, Harvey,” he said. “If only you could see what’s going on down the street.”

O
n the fourth day of trial, the plaintiffs called Dr. Ilan Meyer, a psychiatric epidemiologist, to the stand. His job was to tell the court about the consequences of the discrimination that Chauncey had described. It felt, Chad would tell Kristina afterward, like “you’re in therapy, in court, in front of your closest friends—and your enemies.”

Meyer, an associate professor of sociomedical sciences at Columbia University’s Mailman School of Public Health, had developed a groundbreaking theory called “minority stress syndrome” about how the small and large slights faced by gays and lesbians have a cumulative adverse impact on their psychological well-being, making them twice as likely as their straight counterparts to suffer from disorders ranging from depression and anxiety to substance abuse.

The team had other witnesses who could speak to the harm caused by discrimination, and for that reason, several of the senior members of the team were initially hesitant about calling Meyer. Why give Cooper two bites at that apple?

But the lawyer who had helped find and prep him, Sarah Piepmeier, felt strongly that his study of minority stress syndrome provided uniquely compelling connective tissue that would ultimately help the justices understand how difficult it was to be gay and excluded, just as the doll test had once aided the Warren Court in understanding what it meant to be black and segregated.
Since she was one of only a few gay lawyers on the Gibson team, her view was given weight.

Now, listening to Meyer talk about how society stigmatizes gays and lesbians, Boutrous leaned over and whispered to her that she had been right: “What he’s saying is perfect!”

People in general experience different kinds of stress. There is the acute stress of a life event, such as a death in the family; the chronic stress of an ongoing condition such as unemployment; or daily life stressors, such as traffic or a long line at the bank. But when a person has an attribute that society perceives to be a negative one, Meyer testified, that attribute becomes inseparable from the person, who is then devalued, made into a pariah of sorts. That, Meyer said, is the source of an additional stress, called minority stress.

Meyer had studied this effect in hundreds of gays and lesbians, and his work had been given the stamp of approval of the National Academy of Sciences’ Institute of Medicine.

Minority stress, he explained, can be caused by outright prejudice, such as being called a name, or worse, being the victim of a hate crime. But it can also be caused by events that in isolation seem innocuous, like the fact that the form Sandy’s doctor used did not have a box for her to check.

“One of the things we hear over and over is forms, filling out forms. And it’s kind of bewildering, because on one hand you might say, ‘What’s the big deal about filling out a form?’” he testified. “And the only way I can explain it is that it is really not anything about the form. It is that the form evokes something much larger for the person. It evokes a social disapproval, a rejection.”

Same thing when Paul and Jeff checked into a hotel and a desk clerk became confused about the type of room they wanted. A straight couple would probably never be asked, and if they were, they would simply sort it out. But for a gay person, Meyer said, “it’s an area of great sensitivity because it really talks to their rejection.”

Another source of minority stress comes from the expectation of discrimination and rejection, he said, whether it happens or not. “This is a very—well, to me, interesting process that occurs in populations that are—that are used to prejudice. By ‘used’ I mean that they know about the prejudice that exists in society. And what happens is that a person who knows that they might be rejected or discriminated against needs to maintain a certain vigilance about
their interactions in society that would, first of all, guarantee their safety. So an example that I often use when I talk about this is a gay couple walking down the street. In my experience, very often, regardless of how friendly their street is, they would have to monitor the kind of affection that they display with each other, because perhaps somebody will come and throw stones and eggs, and so forth.”

A third source of minority stress for gays and lesbians comes from the effort of concealing something so fundamental to their identity. Even people who are “out” do it occasionally, and members of the U.S. military must, thanks to the Don’t Ask, Don’t Tell policy. Maintaining a lie takes a very strong cognitive effort, and researchers who have studied concealment in other contexts have called it a “private hell.”

Finally, Meyer told the court, gays and lesbians experience the stress of internalized homophobia, “basically internalizing or taking in negative attitudes” and thus living with a diminished expectation about what is possible in their lives.

Take, for instance, one pervasive societal stigma: that gays and lesbians are “incapable of relationships, of intimate relationships, they may be undesiring, even, of intimate relationships,” Meyer said. That stereotype can be found in an excerpt of a book, popular in the 1960s and 1970s, called
Everything You Always Wanted to Know About Sex (but Were Afraid to Ask)
.

The book was written in a Q&A format, and one question posed was, “What about all the homosexuals who live together happily for years?” The answer: “They are mighty rare birds among the homosexual flock. Moreover, the ‘happy’ part remains to be seen. The bitterest argument between husband and wife is a passionate love sonnet by comparison with a dialogue between a butch and his queen. Live together? Yes. Happily? Hardly.”

The portrayal, Meyer said, was filled with “ridicule and contempt,” and if a young gay man read it he might internalize that stigma. Meyer told the court that shutting gays and lesbians out of marriage as Prop 8 did was to shut them out of an institution with social meaning that people aspire to, telling them, “If you are gay or lesbian, you cannot achieve this particular goal.”

Cross-examining Meyer, a lawyer on Cooper’s team questioned the professor’s analytics, noting that he had not studied whether gays and lesbians fared better in places where marriage was legal, and made a point of telling the court
that Meyer had given money to defeat Proposition 8. But Meyer held firm to his conclusions.

Kristina, watching Judge Walker scribbling down notes, wondered what he was thinking—and whether he realized what might soon be headed his way.

The first sign of trouble had come a day earlier in the form of a headline in the
Wall Street Journal:
QUIRKY JUDGE PRESIDES IN GAY MARRIAGE CASE
.

“So it begins,” Kristina said with a sigh.

“Can’t spell ‘quirky’ without ‘queer,’” the opposition researcher she and Chad had just brought on board agreed.

No one knew for sure whether Cooper and his team were aware of Judge Walker’s sexuality, and the
Journal
piece did not mention it. But by day four of the trial, it was clear that there was a concerted effort to attack the judge as biased.

Former attorney general Edwin Meese III, who had led the Justice Department when Walker was nominated, had penned an op-ed in the
New York Times
accusing Walker of “stacking the deck” in favor of the plaintiffs with his pretrial rulings. “Kangaroo-court procedures,” declared Edward Whelan III, a former Justice Scalia clerk and a contributor to the
National Review Online
’s Bench Memos, an influential outlet in the conservative legal echo chamber.

That day, the war room fielded its first call from a reporter asking whether Walker was gay. “Unconfirmable,” was the response.

Olson’s legal team and Chad’s media war room were now working in near-perfect synchrony, helping one another address both the court and the court of public opinion. The lawyers had compiled a list of phrases, drawn from Justice Kennedy’s opinions, that they felt would resonate with the Court’s swing voter.
Chad and the plaintiffs wove them into their daily public statements and press releases, framing the right to marry as a matter of “human dignity,” “individual liberty,” and “freedom” whenever possible. Meanwhile, Chad conferred with the legal team about when to call key witnesses for maximum news cycle advantage, while the researcher that AFER had hired dug into the background of Cooper’s star witness, David Blankenhorn.

Blankenhorn held himself out to be a liberal Democrat opposed to
same-sex marriage, but his foundation work on marriage and fatherhood was funded by right-wing warriors like billionaire Richard Scaife. And it turned out that the highest degree he had earned was a master’s, in a field that had nothing to do with the subject of his testimony: His thesis was on labor union disputes among cabinetmakers in Victorian England.

“Oh, that’s too good!” Kristina exclaimed when she heard it. “Let’s push that out on the day he goes on the stand.”

“Interesting,” McGill agreed, and then, because he was, in his words, “the most right-wing nut job on our legal team besides Ted O.,” he had to jokingly add, “You elites! Thinking you need a PhD to be an expert.”

But the attacks on the judge, amplified by the Supreme Court’s reversal of his decision to broadcast the trial, were worrisome. Something needed to be done.

“They’ve got surrogates to paint the picture of a judge gone wild, and trial run amok,” McGill said. “The volume on that is going to get turned up and up and up.”

The judge could not defend himself. And the plaintiffs could not be seen to be defending him. So Yusef Robb had been dispatched to line up California Bar Association types to, as he put it, “talk about how careful and boring he is.”

Margaret Hoover, a Republican political commentator who had worked in several capacities for President George W. Bush and was the great-granddaughter of the thirty-first president, was also helpful. She had recently agreed to join AFER’s advisory board, and in a post on FoxNews.com, she defended the proceedings in California. “You may think, ‘San Francisco liberals are at it again! Hijacking the courts, inventing new constitutional rights! Stop there,” she wrote. Olson, the lead counsel in the case, was “one of the most respected conservatives in America.”

Chad and Kristina, meanwhile, focused on attacking the Supreme Court’s decision prohibiting the broadcasting of the trial, which their opponents were now citing as the latest evidence of Walker’s wrongheadedness. The team did not want to criticize the justices directly.

But surrogates like Los Angeles mayor Antonio Villaraigosa, writing in the
Huffington Post,
said the “unjust” ruling was keeping the public from seeing “the true face of intolerance and prejudice behind Proposition 8,” while behind the scenes Chad and his team worked newspaper editorial boards. Olson, after
seeing that the
New York Times
had called proponents’ claims of intimidation “hazy and unsubstantiated,” e-mailed Chad: “For once I agree with a NYT editorial.”

They had done what they could do. That night in the war room, Chad turned to a tangential issue. Appellate courts such as the Ninth Circuit and the Supreme Court do not hear from witnesses directly; they simply review the written record to determine whether the law was correctly applied. Now that there was no chance that the justices of the Supreme Court would see the plaintiffs’ emotional testimony on television, Olson was urging Chad to try to find other ways to circulate their stories.

That morning, Cooper had asked that Judge Walker turn off the cameras and destroy the footage filmed to date. Walker had refused, saying he wanted to be able to review the footage in chambers, and the back-and-forth had given Chad an idea.

The war room should turn the fact that “the other side is trying to have the plaintiffs’ testimony destroyed” into an opportunity, he said. It could make the plaintiffs more attractive to daytime talk shows, for instance. Never mind that it was impossible at the moment to break through the wall-to-wall coverage of a catastrophic earthquake that had just hit Haiti. Chad was not one to listen to excuses.

“Free the plaintiffs,” he said, urging them to be creative. “It’s a great message.”

T
he e-mail was buried in the thirty thousand pages of documents that ProtectMarriage.com had been forced to deliver to Gibson Dunn. And as soon as Matt McGill saw it, he knew that the fight to win an exception to the Ninth Circuit’s order protecting internal campaign documents from discovery had been worth it.

Attached was an inflammatory article entitled “21 Reasons Why Gender Matters” that portrayed gays and lesbians as sick “sex addicts” and same-gender parents as a danger to children. Ron Prentice, the executive director of ProtectMarriage.com, had e-mailed it to an undisclosed list of Proposition 8 supporters, instructing them to make use of it in the campaign.

“All—the following is self-explanatory,” he wrote. “It should be very helpful in many ways, such as sermons, etc. Ron.”

The team had spotted the article well before trial, but until now had no way to tie the views it expressed to the proponents of Prop 8. It was, McGill thought, the perfect framing device for the testimony of the expert witness whom he called on the fifth day of trial, Michael Lamb, a psychologist affiliated with the Department of Social and Developmental Psychology at Cambridge University. The article was filled with claims unsupported by science, and it offered an opportunity to rebut the oft-stated claim, repeated in the article that Prentice had sent around, that bans like Prop 8 were justified because they promoted the optimal child-rearing environment.

For a law to pass the rational basis test, the Supreme Court has held that its
justification must have “some footing” in reality. As McGill liked to say, “You could not pass a law based on the idea that the earth is flat, when the evidence is conclusive that it is not.” McGill hoped to use Lamb, a renowned child development expert who had written or edited some forty books on developmental psychology, to portray the proponents of Proposition 8 as the flat-earthers of today.

McGill had never before examined a witness during a trial. As an appellate guy, he spent his days buried in Supreme Court precedent and drafting briefs.
Perry Mason
it was not. But McGill had swagger and, it soon became clear, a natural feel for what makes for good courtroom drama.

“So, Dr. Lamb,” he began, “what makes a good parent?”

“A good parent,” Lamb answered, “is one who is effective at reading the signals of that child, understanding what that child needs, and providing appropriate stimulation, guidance, and setting appropriate limits for their children.”

The “21 Reasons Why Gender Matters” article contained a quote from a Rutgers University sociologist: “We should disavow the notion that mummies could make good daddies, just as we should disavow the notion of radical feminists that daddies can make good mummies,” he argued. “The two sexes are different to the core and each is necessary.”

But Lamb told the court that the “overwhelming consensus” in his field, since at least the early 1990s, was that having parents of different genders is not necessarily determinative of whether a child will be well adjusted. Nor is a biological connection; studies showed that adopted children and children conceived with the help of an egg or sperm donor are just as likely to achieve good outcomes.

Rather, the optimal environment for children is one in which they are raised by loving, caring parents who live in harmony with each other and are able to provide adequate economic resources. Gender and blood connections are irrelevant, Lamb told the court.

What about a point that Cooper had raised during his opening argument, when he quoted President Obama on the importance of fathers? McGill asked. He showed Obama’s quote on an overhead: “Children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison.”

First, Lamb said, those studies compared children being raised by two heterosexual parents to children being raised by a single, heterosexual mom. And
“actually, the research, now quite voluminous, shows that the absence of a father in and of itself isn’t the crucial factor.” Rather, what accounted for the differences cited by the president, he said, was that children are more likely to have problems when deprived of a parent’s involvement in their life and forced to cope with the economic deprivation that often accompanies divorce or separation.

McGill moved now to the heart of the matter. “Dr. Lamb, have researchers within your field conducted any studies of the adjustment of children raised by gay or lesbian parents?”

Lamb said that there had been more than one hundred peer-reviewed studies on the subject, “documenting very conclusively that children who are raised by gays and lesbians are just as likely to be well adjusted as children raised by heterosexual parents.”

McGill, lest the court miss the significance of that statement, entered a number of those studies into the record and had Lamb read aloud the conclusion of the American Psychological Association’s policy statement:

“There is no scientific basis for concluding that lesbian mothers and gay fathers are unfit parents on the basis of their sexual orientation,” Lamb read. “On the contrary, results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive, healthy environments for their children.”

The American Academy of Child and Adolescent Psychiatry, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychoanalytic Association, the Child Welfare League of America, the National Association of Social Workers, and the North American Council on Adoptable Children had all reached similar conclusions, and McGill dumped them into the record as well.

The inference, of course, was that if the rationale offered by proponents of Prop 8 was not fact- or evidence-based, it must be the result of the kind of prejudice that Justice Kennedy had described as the “want of careful, rational reflection.” Next, McGill turned to some of the other claims made in the article that Prentice had circulated for use in the Prop 8 campaign, the kind Cooper was not using to try to justify Prop 8 in court because they fell into the more overtly hostile category.

Among them: that “gender disorientation pathology,” as the article
described homosexuality, is a sex addiction that “encourages the sexual and psychological exploitation of children” because “the sad truth is, homosexual abuse of children is proportionately higher than heterosexual abuse of children.” The term itself, Lamb testified, could be found nowhere in the psychiatric or psychological literature, and studies going all the way back to the 1970s proved that gays and lesbians are no more likely to abuse children than are straight people.

Another of the article’s assertions, that the children of gays and lesbians are more likely to be gay themselves, deliberately misled readers, Lamb told the court, by footnoting a study that concluded no such thing. (What the study did find was that there was no difference between the psychosocial outcomes of children of lesbian parents and children of straight couples, a fact not mentioned in the “21 Reasons Why Gender Matters” article Prentice had circulated.) In fact, Lamb told the court, the consensus of the scientific community was that while the children of gays and lesbians tend to be less likely to embrace sex role stereotypes, the sexual orientation of their parents has no bearing on whether they will be gay or straight.

If gay and lesbian parents were allowed to marry, he concluded, the only likely impact on their children would be to improve their chances of achieving the best outcomes in life, in exactly the same way that research showed that the children of cohabitating straight couples benefit when their parents wed.

“In the thousands of books and publications you have written and reviewed in your career, have you ever encountered a sound rationale for purposefully denying a child the opportunity to achieve the best possible outcome?” McGill asked.

“No, I have not.”

“I have no more questions, Your Honor.”

It was 2:45
P.M.
when McGill rose again.

“Dr. Lamb, do you need a break?” he asked, hamming it up a little with the solicitousness of his tone. “Are you all right?”

The courtroom erupted in laughter. For four hours, Lamb had endured a cutting cross-examination by David Thompson. Voice like a jackhammer,
Thompson had thrown out one staccato question after the next in a tone that made clear what he thought of this particular witness’s pedigree.

You have been a member of the American Civil Liberties Union, is that correct? And a member of the National Organization for Women, the NAACP, Amnesty International, and the Nature Conservancy, is that correct?

“You have even given money to PBS!” Thompson charged. “So we can agree you are a committed liberal, is that right?”

Thompson never mentioned the damaging Prentice e-mail, or most of its claims, during his cross. Instead, after establishing that Dr. Lamb personally supported allowing gays and lesbians to marry, he had proceeded to phase two of the cross-examination, an attack on science itself. This was the witness Cooper had chosen to make his full-throated Brandeis brief stand, that social science should play no role in determining a constitutional question like this one, and that no matter what studies might say, the impact of allowing gays and lesbians to marry was unknowable.

Wasn’t it true that much of the science in his field was funded by government research agencies that, by their nature, were not insulated from political ideology? Thompson demanded.

“Your question presumes that the decisions are being made by governments about what sorts of topics should be studied,” Lamb replied. “In fact, certainly in this country, agencies like the National Science Foundation and the National Institutes of Health pride themselves on having peer reviewers evaluate the scientific quality and integrity and importance of the research.”

“You would agree that history is littered with scientific theories that were widely accepted within a scientific community and that have proven to be wrong, correct?”

“Well, I’m not sure about that.”

Thompson started listing some, beginning with phrenology, a theory developed in the eighteenth century that linked bumps on the head to certain aspects of an individual’s personality or character, and ending with the fact that at the beginning of the twentieth century there was widespread consensus among psychologists that homosexuality was a disease.

“And the psychological community was entirely wrong, wasn’t it?”

“Well, that portion of the scientific, of the psychological community, that held that belief was wrong, yes.”

“You would concede that there are still many differences between men and women in our society, correct?”

“Yes.”

“We can also agree that men can’t breast-feed, correct?” Thompson asked. “And breast-feeding clearly has benefits for children.”

Lamb agreed with that statement of the obvious. But he rebutted Thompson’s suggestion that the studies he had relied upon, showing that children of gays and lesbians do just as well as children of heterosexuals, were flawed because the control sample included unmarried heterosexuals. That was appropriate, Lamb said, because the effect that was being studied was whether the gender of parents mattered, not whether marriage mattered.

Thompson then moved to his next point: Hadn’t Dr. Lamb once written that children in fact do need a male parent in order to be well adjusted? If a respected academic like Lamb could do a pirouette on this issue, wasn’t it reasonable for Californians to believe that too?

McGill had expected this question and had tried to inoculate Lamb by raising it himself during the direct. Lamb had already explained that in the 1970s, in studying the attachments that babies form to mothers and fathers and the different ways that fathers and mothers behaved toward their children, he had studied the importance of fathers in determining child outcomes.

Judge Walker, watching from the bench, smiled as Lamb thanked Thompson for “bringing back these great old memories” of papers he had written as a graduate student, before answering.

It was true that it was important for children of heterosexual couples to have a good relationship with their fathers, Lamb said, but that did not mean that children of same-sex couples needed one. “That is a finding that has not held up in subsequent research.”

This was Thompson’s “ah-ha” moment: “Well, so science was wrong!”

No, Lamb replied. Science is “a cumulative process.”