Forcing the Spring: Inside the Fight for Marriage Equality (28 page)

The second proposition the case stood for was that in cases where heightened scrutiny applies and the government must prove that a discriminatory law serves an important or compelling governmental purpose, the rationale it offers the Court must, as Justice Ginsburg wrote, be “genuine, not invented post hoc,” or after-the-fact, “in response to litigation.” The argument Olson made on behalf of the state of Virginia—that the state was interested in creating diverse educational opportunities—did not meet that test, the Court concluded.

Olson had at the time criticized that opinion, calling Justice Scalia’s dissent “one of the most elegant and moving opinions I have ever read.” But he didn’t hesitate to use the decision in service of this cause. Cooper’s deinstitutionalization theory—“whatever in the world that is”—was exactly the kind of post hoc rationalization that the Virginia Military Institute case had made clear was prohibited, Olson charged in his closing argument, and one need only look at what the proponents in Proposition 8 put into the hands of voters to see that.

“‘Protect our children’ from learning that gay marriage is okay. Those are the words that the proponents put in the ballot—in the voter information guide that was given to every voter. That was not a very subtle theme that there is something wrong, sinister, or unusual about gays, that gays and their relationship are not okay, and decidedly not suitable for children,” he said.

“For obvious reasons, the ‘gays are not okay’ message was largely abandoned during the trial in favor of the procreation and deinstitutionalization themes. And after promising proof that people might stop marrying and cease
procreating if Proposition 8 were overturned, the proponents switched course from that as well, and affirmatively argued that they actually had no idea and certainly no evidence that any of their prognostications would come to pass if Proposition 8 were to be enacted.”

Cooper, when he rose, noted that demographers in the 1930s failed to predict the baby boom, while sociologists in the 1960s failed to forecast the upcoming rise in the number of couples living together outside of marriage. Those were two “extraordinary sociological phenomenon,” he said, that “no one had a clue was coming.” And he used the “no one predicts the future that accurately” quote from Professor Cott’s testimony to argue that a “change as profound as this one” would have unpredictable consequences. “The plaintiffs think that the consequences dominantly will be good consequences,” he said. “And again, we respect that point of view, but it’s not something that they can possibly prove.”

Chad’s favorite moment came when Cooper inadvertently paid him a huge compliment by revisiting his infamous “I don’t know” answer. “I have heard this and read this more than any three things, three words, that I have ever spoken, ‘I don’t know,’” Cooper said. “I don’t know how many times, Your Honor, I had wished I could have those words back. Because, Your Honor, whatever your question is, I damn sure know, whatever it is!”

“I had this moment of
yes
!” Chad said afterward. “If you are feeling the pain now, just wait. This drumbeat isn’t going to stop.”

But for the most part, it had been Judge Walker’s show. The questions he posed to both Olson and Cooper offered a window into his thinking. He seemed skeptical of the evidence that Cooper had put on to prove his point that allowing same-sex couples to wed could damage an institution whose primary purpose was to channel responsible procreation.

“Why only one witness?” the judge asked, before adding, “And I think it fair to say that his testimony was equivocal in some respects.”

When Cooper replied that the witness and, implicitly, the trial itself were “utterly unnecessary” to prove what to him seemed obvious, the judge did not disguise his dissatisfaction: “This goes back to the
you don’t need any evidence
point.”

On the other hand, Walker told Olson to assume the rational basis standard applied, and assume that voters had a genuine belief that children do best when
raised by their biological parents, or that heterosexual marriage would somehow be harmed by allowing gays and lesbians to wed. Even if science says that is not so, is that good enough to pass constitutional muster, as long as voters could have reasonably believed that to be the case at the time of enactment? Didn’t the Supreme Court, in a 1981 equal protection case called
Minnesota vs. Clover Leaf Creamery Company
, effectively say the rational basis standard is so deferential that “any debatable” state interest will suffice?

“Well, it has to be a debatable proposition,” Olson said. Cooper, the “proponents’ counsel, said it came down to this: ‘Same-sex marriage is simply too novel an experiment to allow for any firm conclusions about its long-term effect on societal interests. They just don’t know.’ That is the essence of the case as it comes to the end of the trial and to the closing arguments. They just don’t know whether same-sex marriage will harm the institution of heterosexual marriage.

“And I submit that the overwhelming evidence in this case proves that we do know. And the fact is that allowing persons to marry someone of the same sex will not, in the slightest, deter heterosexuals from marrying, from staying married, or from having babies. In fact, the evidence was from the experts that eliminating invidious restrictions on marriage strengthens the institution of marriage for both heterosexual and homosexual persons and their children.”

“Very well,” Judge Walker said after both sides were finished. “The matter is submitted.”

And then, silence. June became July, and still no decision. Everyone took to obsessively checking their e-mail. Any word yet? Olson would ask Boutrous. Chad refused to get on an airplane to anyplace other than San Francisco. “I feel like a doctor waiting for our baby to be born,” Enrique Monagas said.

The AFER team tried to put the downtime to use. Chad and Olson worked together to expand the team’s bipartisan brand, convincing two heavy-hitting Washington insiders from opposite sides of the aisle to cochair AFER’s advisory board. John Podesta, the founder of the progressive Center for American Progress, and Robert A. Levy, the chairman of the right-leaning Cato Institute, had announced the news in a joint op-ed in the
Washington Post:
“We have
come together in a non-partisan fashion because the principle of equality before the law transcends the left-right divide and cuts to the core of our nation’s character. This is not about politics; it’s about an indispensable right vested in all Americans.”

A major Hollywood fund-raiser was in the works. Olson’s and Boies’s legal fees didn’t include expenses. The trial had been costly, with experts to fly in and pay and a legal army to put up and feed. By the time it was done, AFER had incurred more than $1 million in unexpected costs. Ron Burkle, the billionaire friend of the Clintons who had helped Chad and Kristina with the seed money, had agreed to open up his storied mansion, but they needed an A-list act to draw a red-carpet crowd that would not only replenish the coffers but also generate headlines.

Chad called Bruce Cohen, who had recently been named coproducer of the eighty-third Academy Awards show, to toss around ideas. Could Rob Reiner ask Lady Gaga? No, Cohen said: Rob was no longer represented by William Morris, Gaga’s talent agency, so he had no in. (Eventually, Michele Reiner would suggest Elton John. The singer, lambasted by liberal fans for performing at the wedding of conservative talk show host Rush Limbaugh, readily agreed.)

Celebrities have huge online followings, and Chad also worked his contacts to build out the team’s social media presence prior to the decision. When Alicia Keys, a client, agreed to his request to tweet about the case, it generated four thousand individual visits to AFER’s Facebook page. AFER’s fan base, measured in Facebook “likes,” climbed from ten thousand to eighteen thousand in the space of a week.

Managing the politics of decision day, win or lose, required advance work. Walker’s decision would land in the middle of a hotly contested governor’s race. California attorney general Jerry Brown, already firmly on their side, was running on the Democratic ticket. Meg Whitman, the president and CEO of Hewlett-Packard, was the Republican nominee. Kristina had dated Mike Murphy, the Republican political strategist running her campaign, and she called him shortly before Whitman locked up the GOP primary. Would he take a confidential call from Chad?

“He said that her public position is that she supports Prop 8,” Chad said, relaying the conversation to Kristina afterward. “I said, ‘Look, from what I
hear her public position isn’t the same as her private. Our hope is that we can work with you on messaging and maybe she can moderate her position.’ He said, ‘We’re not looking for controversy.’”

The Prop 8 fight had been a close one, and Murphy understood that many Californians, whose votes Whitman might need to win in the general election, backed the right of gays and lesbians to marry. “
Her position is her position,” he recalled telling Chad. “But Meg has friends on both sides of this issue. Tonally, we will be respectful, and we are not going to make it a centerpiece of the campaign.”

Knowing that friends can sometimes be a campaign’s worst enemy, Chad did what he could to impose message and image discipline in the gay community. The AFER team reached out to the Los Angeles Police Department to talk about crowd management strategy should Walker uphold Prop 8 and massive protests erupt. “We want to be sure that the images that come out of California are appropriate and help us win hearts and minds,” Chad said.

He also held a conference call with thirty gay rights groups, many of whom had been outspoken opponents of the lawsuit, and met personally with community organizers in California to share AFER’s talking points. Minutes from a June 24 meeting Chad attended at San Francisco’s LGBT Center summed up some of the dos and don’ts:

In the event of a victory, be graceful winners: “Fairness has prevailed (NOT ‘We Won, ha ha!’).” Stress that the case was not about new rights: “To some people, change is scary, but it has been an enduring American tradition to extend civil rights to all people, and today is just another example of that tradition.” And in the event of a loss, share stories of how discrimination against gays and lesbians affects families and kids in their everyday life. Ask, “How would you feel if you could not marry the person you love?”

Judge Walker’s plan was to release his opinion to the public sometime between 1
P.M.
and 3
P.M.
Pacific time. He had sent word that he would give the lawyers and the parties in the case an advance copy at 11
A.M.
, but they were under strict orders to share it with no one else.

In Washington, Cooper had resigned himself to a loss. The night before, he had taken the extraordinary step of filing for an emergency stay preventing marriages from resuming while he appealed a ruling that Judge Walker had yet to hand down.

In San Francisco, David Boies and Ted Boutrous swapped stories about their latest cases while they waited. Olson arrived at 10:40 and joined them in a corner conference room overlooking the bay. His wife, Lady, sat down with the plaintiffs and Michele Reiner in an adjacent room. Olson had been episodically irritable the night before, which was how she could tell he was nervous.

“It’ll be good either way,” Michele said.

“Yeah, but it’ll be better when we win,” Sandy, dressed in pink again, replied. “Winning is better than losing.”

The 11
A.M.
deadline passed with no word from Walker. To pass the time, Michele took pictures of everyone with a new iPhone camera “fat” app that makes people look as though they have packed on the pounds:

“It’s so cruel, this thing.”

Snap, snap.

“It’s pretty funny.”

Boies, briefly emerging from the lawyers’ conference room for a soda, was at a loss to explain the delay. “I think the son of a bitch is still editing the opinion,” he said. “Going over it one final time.”

And then, with no warning, bang, in it came. At 12:26
P.M.
the lawyers told Chad to gather the plaintiffs. Mindful of the judge’s order to keep the advance copy under wraps, everyone else was ordered out of the lawyers’ conference room, “spouses, everyone but the lawyers and the clients,” Ted Boutrous said before closing the thick wooden door firmly behind him.