Forcing the Spring: Inside the Fight for Marriage Equality (19 page)

E
ach evening, the legal team defending Prop 8 would huddle in the cluttered living area of the suite where Chuck Cooper was staying. With no office in San Francisco, the corporate residential apartments they occupied had become cluttered live-work spaces, the floors a tangle of wires leading to rented printers, and available surfaces stacked high with binders and documents.

Cooper, like Olson, had for the most part delegated the actual job of questioning witnesses to his deputies. That freed him up to think strategically about the points his team should—and should not—be making. “How,” he would ask himself as he reviewed the lines of questioning in each cross-examination plan, “will this fall on the ear of the one person I care about, Justice Kennedy?”

But some battles are important enough to the outcome of a war that the general needs to climb into the trenches. And that is why Cooper assigned himself the job of cross-examining the expert witness whom David Boies called to the stand after Sanders finished on Tuesday.

Lee Badgett was an economist at the University of Massachusetts Amherst, and the author of
When Gay People Get Married
and another book called
Money, Myths, and Change: The Economic
Lives of Lesbians and Gay Men
. She
had been an effective witness in a number of the state court marriage cases, and
Cooper knew going in that he would need to “rough her up,” as he later put it.

Under friendly questioning by Boies, she outlined the three main findings of her expert report for the court.

First, she testified, Proposition 8, far from serving a rational state interest, inflicted substantial economic harm. Keeping same-sex couples in California from marrying cost those couples thousands of dollars a year in higher tax bills and lost spousal health and other employment benefits. That, in turn, harmed the nearly forty thousand children whom same-sex couples were raising in California, she told the court, because “that’s thousands of dollars that will not be available to spend on children or to save for their college education.”

Nor was its passage in the state’s interest, she testified. Not only do struggling families tend to require more government assistance, but by her estimate California stood to lose $40 million over a three-year period alone in same-sex wedding-related tax revenue. That part of her testimony echoed what the chief economist for the city of San Francisco had told the court the previous week. Married individuals, on average, behave in healthier ways than single individuals, Edmund Egan had testified, which translates into greater productivity, lower worker absenteeism, and more payroll taxes.

Second, Badgett offered empirical evidence for the proposition that domestic partnerships do not offer an equitable compromise. Gays and lesbians who would marry do not always take advantage of the benefits domestic partnerships offer by registering, she told the court, in part because the arrangement is seen as “second class” and less valuable. Evidence for that could be seen in what she called the “take-up rate” for the different legal statuses.

In Massachusetts, 37 percent of the state’s same-sex couples married in the first year they could do so. By contrast, only 10 to 12 percent of same-sex couples entered into civil unions or domestic partnerships the first year they became available in states that allowed them. In California, that number was even lower. Only 5 percent of same-sex couples entered into domestic partnerships in 2000, when that arrangement became available in the Golden State, versus 21 percent who married during the six-month window when it became legal to do so in 2008. The bottom line, she testified, was that gays and lesbians marry for the same reasons straight people do. In her survey of same-sex couples who had married in Massachusetts, 72 percent reported feeling more
committed to their partners as a result of marrying, while 93 percent believed that their children were happier and better off as a result.

And finally, based on quantifiable experience in places where same-sex marriage was already legal, she concluded that there was no basis to believe that any harm would come to heterosexual marriages by allowing gays and lesbians to marry nationwide.

Together, her conclusions formed a formidable legal stronghold for the plaintiffs’ argument that Proposition 8 should not survive even the rational basis test, and after beginning his cross-examination with a cordial “pleased to meet you,” Cooper tried to attack them from every angle.

He questioned her impartiality, her math, and her assumptions. The
Advocate
magazine had called her “one of our best and brightest activists,” had it not? he asked. It had, she answered agreeably. Didn’t she agree with the state’s fiscal impact statement on Prop 8, Cooper asked, which found that there would be little to no impact on state or local governments? No, she answered, she did not.

What about the fact that hundreds of gay Californians entered into domestic partnerships in 2008, even though that was the year they were allowed to wed? “Do you believe that these California same-sex couples chose domestic partnerships over marriage because they believed it to be culturally and socially second-rate when compared to marriage?” Cooper pressed.

Boies had coached her not to be acerbic: “Your sense ought to be, if I could just explain it to you, you’d understand—not that they are bad people, just a little dense.”

“Well,” she answered, “I don’t know that some of those eighteen thousand couples who married didn’t also register a domestic partnership in order to hedge their bets against the outcome of an election. So I don’t know exactly what conclusion we could draw.”

But it was Badgett’s last point, that traditional marriages would not be harmed by allowing gays and lesbians to marry, that was the most potentially damaging to Cooper’s case, and it was there that he spent the bulk of his time.

He began in the Netherlands. Badgett had studied marriage trends in that country, both before and after it became the first in the world in 2001 to allow same-sex couples to marry. That data, she had written in her expert report,
suggested that heterosexual marriage trends do not change when same-sex couples are allowed to wed.

But Cooper had done some calculations of his own, a tangle of numbers that he now enthusiastically shared with the court. One chart showed that in 1994 there were 5.4 marriages per 1,000 inhabitants in the Netherlands. In 2001, the year same-sex couples began to marry, there were 5.1 marriages per 1,000 inhabitants. By 2008, that had dropped to 4.6 marriages per 1,000 inhabitants.

“It is clear that at least from the time that the Netherlands adopted same-sex marriage until now, the marriage rate has declined significantly, correct?” Cooper asked.

Two other charts looked at the growing number of children born out of wedlock in the Netherlands. In 1994, the percentage of families in which children lived with two unmarried parents was 1.5 percent, in 2001 it had risen to 2.8 percent, and in 2008 it had reached 4.3 percent. The percentage of families in which children were being raised by a single parent had grown from 5.6 percent in 1994 to 6.4 percent in 2008.

Boies had expected this line of questioning, just as he had anticipated that Cooper would be the one doing the asking, and he had prepared charts of his own. They were important enough that the night before, he had personally overseen the finishing touches, even asking whether certain colors could be adjusted to make it more easily understandable and “crisp.” (“Well, David, Microsoft, in its infinite wisdom, allows us to do that,” joked Steven Holtzman, the lawyer who had done battle with him against the software giant.)

During the cross, Badgett said she did not think Cooper’s numbers were statistically significant or unexpected, and that in general what they showed was that trends that had begun before the Netherlands legalized same-sex marriage continued afterward. Looked at over time, she said, there was “no break, whatsoever, to suggest that anything happened of importance in 2001,” the year same-sex couples were allowed to marry.

On redirect, Boies used his own handiwork to elaborate on that point, flashing charts onto a large courtroom screen and peering over at them through glasses perched so far down on his nose it was a wonder they did not slide off. He had purposely waited until the redirect to show them, ensuring that he, not Cooper, would have the last word.

One chart showed heterosexual marriage rates all the way back to the 1960s, rather than the 1994 starting point that Cooper had used. “Can you explain what this exhibit shows?” he asked Badgett.

“What we see is a well-known change in the marriage rate in the Netherlands, which peaked in about 1970, and since then has been on a pretty steady decline.”

“And there are some yearly variations, is that correct?” Boies asked.

“Yes, there are.”

“And, for example, the marriage rate actually goes up from 2001 to 2002,” he said, “and goes up again from 2007 to 2008.”

“Yes, that’s right,” Badgett said.

He then offered a different view of the same data, adjusted for year-to-year differences by plotting five-year averages. It showed a smoothly sloping line of gradual declination, the angle of which did not change after 2001. The next slide he showed quoted from the affidavit of an expert witness that Cooper had been planning to call, but had withdrawn after the expert concluded that the Netherlands’ declining marriage rate was “no doubt part of a larger secular trend” seen in most Western countries.

That, Badgett said, was the way she saw it too.

Boies then rhetorically spun the globe back to the United States, and specifically to Massachusetts, where same-sex couples had been allowed to marry since 2004. Badgett, during her direct examination, had said that the Bay State offered a better predictor of what might happen to heterosexual marriages than places like the Netherlands and Spain, both of which had made it easier to divorce at around the same time that they legalized same-sex marriage.

Cooper had objected; Badgett’s expert report was primarily focused on the experience of the Netherlands, he told the judge, and this was a topic that he had not been given notice she would cover. But after Boies pointed out that it had been raised in her deposition, Walker overruled him, leading Cooper to ask whether it was at least reasonable for people to want to wait for more data from places like Massachusetts before making any kind of firm conclusion.

“I don’t think it’s necessary,” she had answered. “I think we know.”

Now Boies flashed more charts across the courtroom’s overhead screen, comparing the marriage and divorce rates in Massachusetts to the rest of the nation from 2000 to 2007. Nationally, the marriage rate declined over that
period. That was true for Massachusetts as well—until 2004, the year the state legalized same-sex marriage. After that, “the marriage rate actually increased,” Badgett told the court, while the overall divorce rate fell at an even greater rate than was true for the rest of the country.

“Well done today, David,” Chad said, pulling the lawyer aside after court.

Boies grinned. Some people become bashful when paid a compliment. He was not among them.

“I know,” he said. “It was just great.”

L
istening to the evidence day after day, Vaughn Walker was in what he called his “judge mode.” It is not uncommon for a judge to have personal experiences that can inform the way he views a case. But Walker, years later, said that for the most part he compartmentalized his, spending surprisingly little time thinking about how the witness testimony in the trial unfolding before him connected to his own life. As he put it, “I was not on trial,” and as someone who had spent years on the bench, he was used to keeping his emotions in check.

Ryan Kendall was different.

Terry Stewart had searched for weeks for someone like Kendall, a twenty-six-year-old Denver Police Department employee, who could put a human face on the harm that can be caused by treating sexual orientation as if it were a choice. When he was thirteen, his parents had read his diary and discovered he was gay. His mother, an evangelical Christian, told him he would burn in hell and forced him to attend two years of sexual orientation “conversion therapy,” an experience that left him suicidal.

But before he could take the stand, Stewart’s office first had to overcome deep concerns by both Olson and Boies about Kendall’s youth and fragility, and then the vehement objections of Cooper’s team when Kendall was finally called to testify on Wednesday morning, the seventh day of the trial.

“One man’s anecdotal account of his experience with a particular type of conversion therapy is irrelevant to this court’s analysis,” James Campbell, a lawyer for Cooper’s co-counsel, the Alliance Defense Fund, protested to Judge Walker.

Walker glanced down at some paperwork he’d brought to court. “Let me ask you, Mr. Campbell, isn’t this an issue that the proponents themselves have raised?” he asked.

“I don’t believe that we’ve—we’ve raised the issue of forced conversion therapy, Your Honor.”

“Well, I’m looking at your trial brief. And you say, ‘The evidence at trial will show that many people freely choose their sexual orientation.’ [It] goes on, ‘The evidence at trial will further demonstrate that however it is defined, sexual orientation can shift over time.’

“And so it seems to me you have raised the very issue to which this witness is going to testify.”

The proponents of Prop 8 had indeed made those arguments, to try to prevent the court from applying heightened scrutiny to Prop 8, and so now found themselves in a trap of their own making. Briefs filed by Cooper argued that for gays and lesbians to be entitled to the type of extra judicial protection given to racial minorities and women, sexual orientation must be an immutable characteristic in the same way that skin color or gender was.

As a matter of law, Olson disagreed. The Supreme Court’s jurisprudence in this area was not at all clear-cut. It had applied heightened scrutiny to laws that discriminate against a group based on changeable traits, like religion or status as a noncitizen, that the justices deemed fundamental to a person’s identity.

But even if Cooper was right, Olson believed that he could satisfy the immutability test, and had lined up an expert witness who could speak to the numerous studies that had been conducted on the subject of human sexuality, a point Campbell now made to Walker.

“If it’s relevant, he can testify,” Campbell told Walker.

“It is true that this is an issue which largely depends upon expert testimony,” the judge replied, but “actual firsthand experience to illustrate points that have been raised is very helpful.” And in any event, Walker continued, he was certainly capable of weighing the value of Kendall’s testimony against all the other evidence that would be presented.

Motion to exclude denied.

Kendall stood just five foot six, and he looked slight as he sat down in the witness box next to the strapping judge. Listening to Kendall describe how “very, very alone” he felt as counselors tried to suppress his attraction to men, Judge Walker was transported back in time.

It was the late 1970s, he confided afterward in a private aside, and he was in his early thirties. He had just made partner at the prestigious law firm where he worked, and his future seemed unlimited, but for one thing.

“
I decided to see a psychiatrist about my”—he paused—“affliction.”

For years, homosexuality had been considered a mental illness. The American Psychiatric Association had only just removed it from its diagnostic manual, but the profession still viewed people who were “conflicted” about their homosexuality as mentally disordered. It would take another two decades for the group to condemn “reparative” conversion counseling.

Walker did not remember much about those sessions, except that the doctor told him that because he had not yet had sex with a man, he was not actually a homosexual.

“You’re normal,” the psychiatrist had said.

“And he pronounced me cured.”

He wanted badly to believe that was true. Around the same time, he found himself stuck in Chicago during a business trip layover. He called his parents, who lived nearby. Come and meet me at the airport Hilton, he suggested.

They were a reasonably close family. His mom had run an ice business before the era of refrigeration, and his dad had briefly attended law school before winding up in business. After a drink or two, the conversation took a surprising turn.

“I forgot how it came up, but we got around to the subject of their sex life. It was striking how candid and matter-of-fact they were about it. Very honest. Yes, they acknowledged, they’d had their problems in this area, but they’d worked through it. I was kind of telling them that I’d had my problems in this realm too. That would have been the time for me to say, ‘It’s because I’m attracted to men.’

“But I couldn’t admit it to myself because I didn’t want to be one of those people, because those people were deviants.”

He was sure that his parents would have loved him regardless. But by the time he was ready to tell them, it was too late. “So I never quite took that step.”

On the stand, Kendall was talking about his own family, so different from Walker’s own. After learning he was gay, his parents yelled at him all the time.

“My mother would tell me that she hated me, or that I was disgusting, or that I was repulsive. Once she told me she wished she had had an abortion instead of a gay son. She told me that she wished I was born with Down’s syndrome or I had been mentally retarded.”

Walker glanced at Boies. He could see that the lawyer had tears in his eyes, and he was struggling to blink back his own.

Against his will, Kendall was forced to see a local Christian therapist. Then, at age fourteen, he was sent for private and group therapy sessions at the National Association for Research and Therapy of Homosexuality.

NARTH, as the outfit is known, is headquartered in Encino, California, and it had been recommended by Focus on the Family, a politically influential right-wing evangelical group near Kendall’s home in Colorado.

NARTH’s executive director, Joseph Nicolosi, told him that “homosexuality was incompatible with what God wants for you.” The message, Kendall told the court, was that he was “dirty and bad,” and must change. But the futility became clear to him one night when a boy whom the therapist had “trotted out [as] his perfect patient” told him he was going to a gay bar later that night, and had just been pretending to be cured for the sake of his family.

After two years, he could take it no longer. Kendall spoke to a state social worker, and she started an investigation that led the state to revoke his parents’ custody over him. “I told her that if I went back to that house, I was going to end up killing myself,” he said.

And so he found himself on his own at age sixteen, and lost. He wandered in and out of jobs and school, so depressed that at one point he turned to drugs before pulling himself together.

“It’s been a—a long hard journey,” he said. “But I have fought with every bit
of myself to take care of myself, to get a good job, to get someplace to live. And I’ve been able to do that.”

Campbell, the Alliance Defense Fund lawyer, kept his cross short and gentle.

“Your only goal for conversion therapy was to survive the experience, is that true?”

“Absolutely true.”

“You didn’t have the goal of changing your sexual orientation—” Campbell stopped, aware of his mistake. “I’m sorry, correction. You didn’t have the goal of changing your sexual attraction, correct?”

The suggestion was that the therapy had not worked because Kendall had not embraced it, but Kendall refused to bite. “That’s correct,” he said. “I knew I was gay. I knew that could not be changed.”

“The most touching testimony at trial,” Judge Walker later said, “was that given by Ryan Kendall.”