Forcing the Spring: Inside the Fight for Marriage Equality (21 page)

And Thompson seemed to have annoyed the judge when he wandered into a blame-the-victim line of questioning that suggested that those involved with the “No on 8” campaign had squandered the goodwill of the voters by vandalizing property and boycotting businesses owned by their opponents. Since Thompson was “exploring the subject,” Judge Walker said he’d like to know a
little more about the role that boycotts and similar tactics played in the civil rights fights of the 1960s.

“It’s difficult to imagine the civil rights movement in the 1950s and the 1960s without the Montgomery bus boycott or the boycott of white-owned businesses in certain southern towns,” Segura answered, adding that boycotts dated all the way back to the eighteenth century, when the women of Boston stopped drinking English tea. “So I would not group boycotts of businesses in with violence and intimidation.”

To the extent that there were isolated incidents of electoral intimidation during the Prop 8 campaign, Segura said, both sides engaged in it; Mayor Sanders, he noted, had told the court that his
NO ON 8
sign had been vandalized.

But the most newsworthy moment came when Segura turned the tables on Thompson after the lawyer suggested that gays and lesbians could count on powerful allies, including the current occupant of the White House.

“President Obama, does he count as a political ally to the gay and lesbian community?” Thompson asked.

“No!” Rob Reiner said in a stage whisper. It was a frank assessment by one of Hollywood’s most important Democratic donors, and Segura was equally frank in his answer.

A dozen years before he became president of the United States, when Obama was running for the Illinois Senate from Chicago’s liberal Hyde Park enclave, he had signed a candidate questionnaire saying, “I favor legalizing same-sex marriage, and would fight efforts to prohibit such marriages.” That position had flipped, however, by the time he ran statewide for the U.S. Senate.

It wasn’t just that the president now said that he believed marriage should be between a man and a woman, Segura said. It was within the president’s power to sign an executive order repealing the policy banning gays and lesbians from openly serving in the military, yet despite a campaign pledge promising to end Don’t Ask, Don’t Tell, so far he had failed to do so. His promise to work with Congress to repeal DOMA had gone nowhere, which meant that spousal benefits given to married straight couples were still denied to their gay and lesbian counterparts. And while it was true that the president condemned employment discrimination against gays and lesbians, he had expended little capital pressing Congress to pass a federal law to ban it.

Obama was a “good speechmaker,” Segura told Thompson, but like many so-called allies of gays and lesbians, his “rhetoric far exceeds his actions.”

The headline on the
San Jose Mercury News
article summing of the day’s events read,
EXPERT IN PROPOSITION 8 TRIAL: BARACK OBAMA UNRELIABLE ALLY OF GAY MARRIAGE MOVEMENT
.

Chad, reading it out loud to the war room that evening, was not happy. The day the case was announced, he and Bruce Cohen had tag-teamed the president during a campaign fund-raiser that Chad had helped organize at the Beverly Hills Hilton, telling Obama that they hoped he could find his way to supporting the lawsuit. Chad wanted to create the political space for the president to come out in favor of same-sex marriage, and news coverage like this threatened to force him to dig in further.

Amanda Crumley knew how the White House worked; she was the one member of the war room besides Chad to have worked there. But there was no sense trying to spin what Segura had said, she advised Chad: “He speaketh the truth.”

Besides, they had other things to worry about.

Chad had made something of a study of how the religious right became such an effective force in American politics, once even scraping the Clinton sticker off his car and driving down to Lynchburg, Virginia, to listen to Jerry Falwell, the cofounder of the Moral Majority, preach at his megachurch.

The day’s testimony on the role that churches played in Prop 8’s passage had been powerful, but Chad worried, correctly, that opponents would try to spin it as an attack on the faithful. Yusef Robb, whose job it was to excerpt the best moments of the trial and push them out in a press release, said he would be as careful as the lawyers had been to emphasize that the day’s events showed only that “there was this vast, huge, political apparatus” arrayed against gays and lesbians. “We don’t have a bone to pick with religion,” he said.

Meanwhile, the following day the Supreme Court was expected to hand down its decision in Olson’s blockbuster
Citizens United v. Federal Election Commission
case, challenging the ban on corporate spending in federal elections. The case had its genesis in the anti-Clinton documentary aired during
the presidential primary by another of Olson’s clients, David Bossie, and was a reminder that whatever common ground Chad and Olson had found on same-sex marriage, they were politically far apart on nearly everything else.

“Ted Olson is going to single-handedly bring down the campaign finance system tomorrow,” Chad predicted, “a decision we all disagree with.”

True, but the upside was that “we can worm our way” into whatever interviews Olson would be giving on the subject, said Robb, and “politics aside, our fucking attorney just won another case.”

Yes, Chad mused. That ought to calm the naysayers in the gay rights community.

Less than twelve hours later, as predicted, a sharply divided Supreme Court ruled in Olson’s favor, striking down a key provision of the McCain-Feingold law aimed at curbing the influence of special interests in politics, and opening up a floodgate of money expected to disproportionately benefit Republicans.

“Congratulations, I guess,” Chad told Matt McGill as the two stood waiting for an elevator in the federal courthouse. McGill, who had worked closely with Olson on the case, did his best imitation of a Dr. Evil laugh and accent.

“Ha-ha-ha-ha! First, the political system. Next, the social fabric of America!”

T
he joke in the war room was that when David Boies removed his glasses, it was time to watch out. He would hold them in one hand near his jaw, then repeatedly plunge them toward the witness in a sharp downward motion that an assassin might use to stab someone in the heart.

Boies’s target on the eighth day of trial was Dr. Hak-Shing William Tam, the proponent of Proposition 8 who had done his best to avoid the very situation in which he now found himself, penned into a witness box and forced to explain himself.

Calling a hostile witness can easily backfire, and the team had extensively debated which proponents of Proposition 8 to call. Much consideration had been given to calling Ron Prentice, the executive director of ProtectMarriage.com. Questioning him under oath about some of the campaign documents that had been unearthed through discovery was hard to resist. “If you keep him narrow, if the only point you say is that they carefully coordinated all grassroots efforts, that everything came with a ProtectMarriage.com stamp of approval, it’s worth it,” Chris Dusseault said during one discussion.

But Olson and Boies were wary. Prentice was a political pro, and if they put him on the stand he would do his best to try to undermine the case they had already built with the campaign’s own documents. “Right now we control our message,” Olson said. “If we put him on, they get to tell their side of the story.”

Tam was the compromise. By order of the court, he had been sitting in the
courtroom for several days running, an older, bespectacled man with tufts of black hair sticking out of the back of his head. During breaks, he kept to himself, looking uncomfortably at his shoes whenever he found himself in the vicinity of the plaintiffs or Chad.

Cooper had expected his opponent to try to pin Tam’s views to the entire ProtectMarriage.com campaign, and he had assigned Nicole Moss, a lawyer in his firm, to put as much distance between Tam and the campaign as she could. With her guidance, Tam claimed a minimal role in the campaign, said he had little contact with Prentice and had spoken only “one or two times” to a firm owned by Frank Schubert, the campaign operative who masterminded the Prop 8 victory. He insisted that he did not get the approval of ProtectMarriage.com for the Yes on 8 messages he circulated to the Chinese community. “I acted independently,” he said at one point.

But Moss had a hard sell, given that Tam was one of only five official proponents of Prop 8. And that was without the discovery documents that Cooper had been forced to turn over, which Boies proceeded to use to their full advantage.

By Tam’s own admission, he had been invited by ProtectMarriage.com to take part in the campaign and worked closely with the organization to collect the more than one million signatures that qualified Prop 8 for the ballot. He supervised the preparation of the ballot language. He acknowledged investing substantial time, effort, and resources in the campaign. Minutes from the weekly grassroots meetings run by Schubert’s firm showed Tam in attendance. He appeared at debates and on television at the direction of ProtectMarriage .com. He raised thousands of dollars and was included and referenced in e-mails addressed to the campaign’s leadership. “The Chinese coalition with Bill Tam remains strong and he is one of the signatories,” read one that Boies introduced into evidence.

E-mails addressed to Tam and another organization showed that ProtectMarriage.com paid for the messages he disseminated. But perhaps most important, the documents showed that Tam had signed a “unity pledge,” specifically promising not to pursue independent public messaging strategies. The pledge clearly stated that “public communications by coalition partners in support of the marriage amendment must be approved by the campaign manager.”

Most people want to be seen as decent and upstanding, a tendency Boies was happy to exploit. “You consider yourself an honest person, don’t you?” he asked Tam.

“Yes,” Tam answered, clearly not sensing the menace in the question.

“And when you sign something and make a commitment you take that commitment seriously, don’t you, sir?”

“Yes,” Tam answered, finally understanding where this was headed, “but later on I—I admit that I violated this, this message principle.”

“When do you think you started violating this pledge?”

“What I told the
Mercury, San Jose Mercury News
about homosexuality leads to all kinds of diseases.”

“That was right out there in the public, right?”

“Right.”

“Did anybody from ProtectMarriage.com come and tell you, ‘You shouldn’t have said that’?”

“Yes!”

“Who said that? Who told you that?”

Tam hesitated. “I forgot his name.”

“Is that in writing anywhere, any record of that?” Boies asked, voice dripping with disbelief.

“No,” Tam admitted.

Tam similarly was unable to point to any documentation to bolster his claim that he was not paid by the campaign to place television, radio, and print advertising with Asian media outlets. An October 2008 e-mail from Andy Pugno, the general counsel, addressed to Tam and another pastor stated that “your organizations are spending $50,000” on such efforts.

Boies moved next to a Web site linked to Tam called 1man1woman.net. The team had discovered that Tam was the secretary of a group that administered the pro–Prop 8 site.

Moss had tried to claim that Prentice and others had no knowledge of what was being said on 1man1woman.net, but ProtectMarriage.com had referenced the fact that the Web site was up and running in the minutes of one of its meetings that had been obtained through discovery.

The site was also listed as a cosponsor of a rally that Tam helped organize, featuring both Prentice and Tony Perkins, the president of the Family Research
Council. Boies introduced a flyer promoting the rally. As grammatically challenged as Tam himself, it warned, “It is time for the church rise up against the forces of evil that are destroying families and young souls.”

Tam initially tried to deny any knowledge of the incendiary flyer, then hedged and said it “might have been in front of my eyes. But I—”

“You don’t remember anything?” Boies interjected incredulously, before whipping out another document that showed that Tam was listed as one of the rally’s two press contacts. “Now, does that refresh your recollection that you were more involved in this than you said before?”

Turning to the content of 1man1woman.com, Boies asked whether Tam agreed with the Web site’s unsupported assertion that gays and lesbians are “12 times more likely” to molest children. Tam said he did.

“What literature have you read, sir, that says that?” Boies asked, demanding now, like a parent confronting a prevaricating child. “Tell me what it is that you read.”

“I don’t remember now.”

“Who authored it?”

“Some from, apparently academic papers.”

“What academic papers, sir?”

“I don’t remember.”

Boies turned to another of the Web site’s claims. “You are saying here that after same-sex marriage was legalized, the Netherlands legalized incest and polygamy?”

“Yeah, look at the date.”

In fact, consensual incest was legal before that country began allowing gays and lesbians to marry, and polygamous marriage was outlawed.

“Who told you that, sir?”

“It’s in the Internet.”

“In the Internet?” Boies contemptuously repeated.

“Yeah.”

“Somewhere out in the Internet it says that the Netherlands legalized incest and polygamy in 2005?”

“Frankly, I did not write this, all right?” Tam said, at turns petulant and defiant.

Boies paused for effect. “You just put it out there to convince voters to vote for Proposition 8.”

Boies shifted to Tam’s “What If We Lose” letter, the one that had convinced the Ninth Circuit to amend its order and forced Cooper to disclose at least a portion of the campaign’s internal communications, and its contention that San Francisco was under the rule of homosexuals.

“The mayor was a homosexual, was he, according to you?”

“I don’t think so.”

“You don’t think so? No, I don’t think so either, actually.”

Several of the mayor’s supporters stifled smiles. If anything, Mayor Gavin Newsom was seen as something of a ladies’ man, having survived a well-publicized affair, a divorce, and a remarriage.

Boies, meanwhile, was insisting that Tam tell him why he circulated information he knew to be false, leading Tam to protest that the lawyer was trying to “use your legal arguments to pinpoint me.”

Tam then offered up a convoluted explanation. First, he said he disagreed with Newsom that homosexuals were a minority in need of protection—“I am a minority,” he told Boies. But then, forced to acknowledge that the numbers showed that gays and lesbians were also minorities, he agreed that they should not be discriminated against.

As his five-hour stint on the stand wore on, Tam seemed to become more and more befuddled, as if when forced to explain his views, he could no longer be sure of exactly what he believed.

“You know that domestic partnerships are the same as marriage, except for the name, right?” Boies asked.

“Yeah. That’s what I learned.”

“You support domestic partnerships?”

“Uh-huh.”

“But you think that just changing the name of domestic partnerships to marriage will have this enormous moral decay—”

“Yes.”

“Will bring on incest and polygamy, right? And pedophilia, correct?”

Tam said he did.

If the state’s decision to offer domestic partnerships to gays and lesbians
had not resulted in the legalization of incest, polygamy, or pedophilia, why, Boies pressed, did Tam believe that allowing them to marry would yield those results? He had to reframe the question several different ways before Tam got it.

“Oh, okay. Now I understand your logic.”

“You see where I’m going?” Boies feigned excitement, enunciating as if there were an exclamation point after every word.

“Uh-huh.”

“Yeah!” Boies egged him on pitilessly.

“All right,” Tam said. “Well, the logic is good.”

“The logic is pretty good, isn’t it?!”

It might have been possible to feel sorry for Tam, but for what he was saying and his evasions, Olson said during a recess. Tam, desperate to escape Boies, had pleaded with the judge for a reprieve. “Do you mind if I like to take a break? I’m getting pretty tired.”

Chad and Kristina huddled. Chad saw everything that happened at trial through a political lens, and he could practically envision a public education commercial featuring Tam. “I was sitting there thinking that this was such a public service, because his views are so ignorant,” he told her. “The more people like him that can be cross-examined, the better.”

But not everyone had Chad’s ability to view the proceedings with strategic dispassion. Tam might be “going through hell right now,” but when he thought no one was paying attention he had no compunction about spreading lies about gays and lesbians, Kris said.

“It’s horrible listening to him,” she said. “I’ve been more traumatized by this trial than anything I can remember going through.”

Enrique Monagas’s dad, Carlos Monagas Sr., was also in the courtroom that afternoon. His son and Enrique’s husband, Jason, had been talking about this case since Enrique was dispatched to file it, and he had come to help the couple out by babysitting his granddaughter. A retired air force major, and a practicing Catholic from Puerto Rico, he said during the break that he had met a lot of people like Tam.

“There’s a lot of prejudice out there,” he said, sadly shaking his head. “He probably felt prejudice against him so he doesn’t think it’s wrong to be prejudiced. I think that we should be more open because if you are talking about God forgiving everyone, then you cannot say that the entire gay community is going to burn in hell.”

He loved his church, but its role in the passage of Proposition 8 and teachings were hard to accept. Pope Benedict, eighty-two, had called homosexuality an intrinsic disorder.

“One of these days we’ll elect a pope who is under eighty years old,” he said wistfully. “When I was in parochial school, they said the Jews killed Christ and all that stuff. But I don’t care. My daughter is married to a Jew, and I’m glad for Enrique and Jason. They have a beautiful daughter.”