Forcing the Spring: Inside the Fight for Marriage Equality (24 page)

“We think it’s directly relevant, Your Honor, that ProtectMarriage.com, after the election, was trying to make sure that a national audience, like an audience of the
Dr. Phil
show, didn’t learn of this religious bias. And that’s Mr. Prentice’s word for it, not mine.”

Walker agreed. The document was in.

At 11:06
A.M.
, Dusseault signaled that his presentation had come to a close. “Thank you, then, Your Honor, I will hand over the reins to Mr. Boies.”

“Very well,” Judge Walker said. “Mr. Boies?”

“Purely ceremonial, Your Honor,” Boies said. “The plaintiffs rest.”

L
ike Olson, Cooper had thought hard about putting Ron Prentice, the executive director of ProtectMarriage.com, on the stand. Over the weekend, he had also notified the plaintiffs that he might call Frank Schubert, its chief political operative. Having someone other than Tam speak on behalf of the campaign and its motivations had its attractions. But Cooper ultimately decided against the move for two reasons.

First, he did not want to take a position that was inconsistent with his overarching legal argument, which was that seven million California voters could not all have been irrational or bigoted. The campaign’s messages, the mindset of its proponents and operatives—all meaningless, in Cooper’s view. The Supreme Court’s jurisprudence in this area was hardly a model of clarity, but as he read the
Romer
decision, as long as he could show that banning same-sex marriage served some legitimate interest, it should not matter whether the campaign was run by “the devil incarnate” or “supported by some people for completely evil reasons.”

Second, Cooper did not want to give his opponents an opportunity to go on a fishing expedition. That very morning, Ted Boutrous had argued that the claims of privilege that had shielded Schubert’s documents and that Schubert had invoked seventy-six times in refusing to answer questions during his deposition would go out the window if he took the stand. The limited rebuttal value of calling either man could be offset if it entitled the plaintiffs to a
wide-ranging cross. “
Whatever good we could get out of Prentice or Schubert,” Cooper later explained, “wasn’t worth the risk we were running.”

And so shortly before noon on the tenth day of trial, Cooper’s team called the first of only two witnesses: Kenneth Miller, an associate professor of government at Claremont McKenna College.

Cooper’s top priority remained keeping the court from determining that gays and lesbians met the test for heightened scrutiny. His first line of defense was precedent: The Ninth Circuit, in a 1990 case called
High Tech Gays v. Defense Industrial Security Clearance Office
challenging the Pentagon’s policy of denying security clearances to people who were known or thought to be homosexuals, had ruled that the proper standard of review for laws that target gays and lesbians was the lower, rational basis bar: “Homosexuality is not an immutable characteristic,” the court had found, but rather a behavioral choice, and “homosexuals are not without political power.”

But with Olson arguing that the appeals court decision predated the Supreme Court’s two landmark gay rights rulings—indeed, it cited the since overturned
Bowers v. Hardwick
case upholding laws criminalizing sodomy—Miller was Cooper’s insurance policy. He was there to rebut Segura’s testimony that gays and lesbians lacked the ability to seek redress in the democratic process.

It did not get off to a smooth start.

Miles Davis, the legendary jazz musician, once said, “Don’t play what’s there, play what’s not there.” It might have been Boies’s motto as well.

Miller specialized in the politics of California and was the author of two books, one on the initiative process called
Direct Democracy and the Courts,
and another called
The New Political Geography of California
. But he had written very little about gays and lesbians, and compared to Segura’s twenty-five peer-reviewed articles and his position as the codirector of the Stanford Center for American Democracy and a member of the editorial board of the
American Journal of Political Science,
his curriculum vitae was lacking.

“He’s not an expert—I want to have everything we can say about that,” Boies had told his team over the weekend. “What he hasn’t been. What he hasn’t studied.”

Because juries tend to give expert opinions great weight, courts are required to act as gatekeepers to ensure that expert testimony is helpful to understanding the matter at hand and based on a reliable, intellectually rigorous foundation. Now, armed with the information he had requested, Boies challenged Miller’s qualifications.

Miller acknowledged to Boies that he had not written any peer-reviewed articles on the subject of gay and lesbian political power besides one piece in a French journal; there, he had taken the counterintuitive position that the losing battle they had fought against Proposition 8 actually demonstrated their political muscle. He had not extensively studied the history of discrimination against gays and lesbians. And during his deposition, he had been unable to name the first openly gay officials elected to office.

“He doesn’t even know many of the key facts and people involved,” Boies protested.

Walker, though, was understandably reluctant to knock the witness out. The Supreme Court had made clear that such a move should be the exception, rather than the rule; vigorous cross-examination and presentation of contrary evidence “are the traditional and appropriate means of attacking shaky but admissible evidence,” the justices had said. Implicit in Miller’s knowledge of California politics and initiatives was an understanding of the different groups that made up the electorate, the judge decided. That qualified him to speak to the subject at hand.

“You may proceed,” Walker said.

But the seed had been planted, and the spat over Miller’s qualifications was featured nearly as prominently as the substance of what he had to say in much of the media coverage of the defense’s opening day. And the testy credentials confrontation was just a taste of what Boies had in store for Miller, “the equivalent of David Boies saying at recess, ‘I’ll see
you
after school,’” as Yusef Robb put it later that night in the war room.

Miller’s thesis was that the political power of minority groups should be measured in terms of money, access to power, and the ability to build alliances. Gays and lesbians, he told the court, had demonstrated all three.

Where Segura had looked at indicia such as the fact that gays and lesbians were more likely than any other minority to be the target of hate crimes, Miller noted that a record $83 million was spent on the Proposition 8 campaign, with supporters of same-sex marriage slightly outspending opponents. A “who’s who of Silicon Valley” that included corporate giants like Google had sided with gays and lesbians in opposing Proposition 8, he told the court, as had some of the state’s most powerful unions, the state Democratic Party, and twenty-one of twenty-three of the state’s largest newspapers.

Rather than focus on the repeated political losses that gays and lesbians had suffered in ballot initiatives across the nation, Miller talked instead about the ballot measures they had been able to beat back in California. One was a 1970s initiative that would have allowed public schools to fire teachers who promoted homosexuality; another was a 1980s push to quarantine people with HIV/AIDS.

Another measure of progress in California, according to Miller, was the fact that Proposition 22, the law voters passed in 2000 to ban gays and lesbians from marrying, passed by a wider margin than Proposition 8, which changed the California constitution after that law was struck down.

One measure of political powerlessness, according to the Supreme Court, is the inability to attract the attention of lawmakers. Where Segura had noted that gays and lesbians had been unable to secure federal legislation that would protect them from discrimination in the employment, housing, and public accommodation arenas, Miller talked about the numbers of large companies that provided benefits to same-sex partners.

And where Segura had focused on the failure of Congress to repeal the law banning gays and lesbians from serving openly in the military, Miller pointed to the 100 percent rating given to more than half the California Legislature by the largest gay rights groups in the state, and the recent passage by Congress of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

That last reference infuriated Mary Boies, herself a lawyer, who had a note passed to her husband.
The law, which provided for additional federal penalties for hate crimes based on sexual orientation, was named in part after a Wyoming college student who was taunted, beaten, and left to die after attending a gay awareness meeting on campus. Witnesses said he was found tied to a ranch fence post, his head bathed in blood except where tears running down his face
had washed it away. It had taken Congress multiple tries and more than a decade to pass the statute. If anything, the need for such legislation was an example of gay vulnerability, she thought.

“This witness cites the Matt Shepard hate crimes act as one indication of gay political power,” she wrote. “Does [
sic
] statutes like Megan’s Law indicate that little girls who are raped and killed have political power?”

Boies once told Terry Stewart that the key to a good cross-examination is to attack the witness’s credibility, win whatever concessions you can that help your case, and then get the person off the stand. “You have to control the witness on cross-examination,” he had explained as he prepped over the weekend, “and the only way to control the witness is by keeping your question precise.”

Over lunch, he held forth on his plan for Miller. While Olson craved solitude before performing in court and often retreated to the lawyers’ lounge to eat, Boies rolled with an entourage that included a driver and his own press person. He spent most days at a round table in the cafeteria, talking to reporters and fans while consuming a peculiar and never-deviating meal: the torn-off crust of a loaf of round sourdough bread fetched daily by the driver, and a slice or two of apple pie.

“Everything that they’ve said so far can be taken care of with a few questions,” he said. “All those groups of allies they mentioned—they also were supportive of African Americans, weren’t they? Yet you don’t have any doubt that African Americans lacked political power, do you? Gays and lesbians lost Proposition 8, didn’t they? And not only did they lose in California, but they have lost in every single state where there’s been a ballot initiative over marriage, correct?”

Boies organized his cross-examinations by the points he wanted to make, with backup material readily accessible in tabbed and color-coded binders. Any attempt at evasion was interrupted with a curt command to answer “yes, no, or I don’t know,” and, when Boies was truly exercised, a demand that the witness repeat his question. Miller got the full treatment when court resumed that afternoon.