Forcing the Spring: Inside the Fight for Marriage Equality (3 page)

In determining whether a group is a class in need of extra judicial protection, the Court considers whether the group has been subject to a history of discrimination; whether it lacks the political power to protect itself in the majoritarian political process; and whether its members exhibit an obvious or immutable trait that makes them readily distinguishable as a class but does not prevent them from contributing to society.

Racial minorities, for instance, are considered a suspect class. Therefore laws that discriminate against them—as well as those that infringe upon a
fundamental right—must meet a strict scrutiny test, meaning that they must serve a “compelling” governmental interest, be narrowly tailored, and represent the least restrictive means of achieving the government’s objective. Women constitute a quasi-suspect class, and laws that discriminate against them are subject to intermediate scrutiny, meaning they must serve an “important governmental objective” and be “substantially” related to achieving that objective.

Sexual orientation, Olson believed, was no more a choice than skin color or sex. “The Court should treat it similarly,” he told Chad.

Chad listened, mesmerized. Olson was talking about some of the murkiest areas of the Supreme Court’s jurisprudence, and divining the true meaning and extent of the justices’ opinions was akin to what an archaeologist faces when trying to decipher recently unearthed ancient cave drawings. The marking were there, but what did they really mean?

But the lawyer was incredibly charismatic, able to take a highly divisive issue and, in his forceful but always pleasant voice, boil it down into a plainspoken legal argument that seemed so reasonable that it was hard to believe there was any other side.

Olson could be, Chad thought, one of the most eloquent spokespeople the gay rights movement had ever seen. Stepping outside onto Connecticut Avenue after the meeting, he phoned Kristina.

“
You will not believe this, but he will take the case,” Chad told her.

“I was just shocked,” she recalled. “We thought, ‘Game on.’”

Walking up the circular brick driveway of the Reiners’ home in Brentwood the following month, Olson wondered what type of reception awaited him. He knew he was seen as something of the devil incarnate in liberal circles like the Reiners’. But the movie director could not have been more welcoming when he greeted him at the door. Rob trusted Chad’s instincts—he simply wanted to hear for himself what journey had brought Olson to his home, and this cause.

Walking Olson through his home, he explained its storied history. The actor Henry Fonda, an ardent Democrat, had planted its rose bushes when he owned it. The liberal producer Norman Lear, who gave Rob his first big break when he cast him as Archie Bunker’s son-in-law “Meathead” in the 1970s
television show
All in the Family,
had lived in it next. All told, the director told Olson, more money had been raised for Democratic candidates here than perhaps any other home in Hollywood.

“I certainly never thought you would be in my living room,” the director joked as they entered the comfortable, tastefully decorated space.

Chad and Kristina were already there. Bruce Cohen, an Academy Award–winning producer of box office hits like
American Beauty,
soon joined the group. Chad and Cohen had gotten to know one another when the two put together a high-dollar fund-raiser to fight Proposition 8, and Cohen had been with Chad and Kristina on election night at the Westin St. Francis. Cohen was a gay Yale graduate whose political activism dated back to childhood door knocking on behalf of Democratic candidates in Virginia.

He was a strategic thinker, and, as important, he had credibility with the gay rights community that Chad knew they would need to mollify if they were to move forward with a lawsuit; Cohen’s latest film was a biopic about the first openly gay elected official in the United States, San Francisco city supervisor and activist Harvey Milk.

The night before, Chad had called him to explain what the group was contemplating and invite him to meet Olson. “What do you think the lesson of Obama’s election was?” Chad had asked.

“
The time for playing it safe, the time for waiting, is over,” Cohen answered.

Every major gay rights legal group in the country had adopted the slogan “Make Change, Not Lawsuits,” issuing press releases that stated that the fastest way to win the freedom to marry was through state courts and state legislatures. “One thing couples shouldn’t do is just sue the federal government,” read one. “Pushing the federal government before we have a critical mass of states recognizing same sex relationships, or suing in states where the courts aren’t ready is likely to get us bad rulings.”

But Cohen did not feel time was necessarily on the side of the gay community. The chances that the Supreme Court was going to become more liberal over time seemed slim to him: The conservative justices were among the youngest on the Court, and who knew whether Obama would be reelected? Maybe it was that he could still remember watching his dad, a well-known labor lawyer, argue a case before the Supreme Court on behalf of workers, but he had faith in the justices.

“I’m in,” he had told Chad.

Now, walking across the room, he introduced himself to the lawyer. Olson chatted about Cohen’s film
Milk,
which he had recently seen. Then the group moved into the dining room for a simple lunch of fish and salad.

Rob Reiner typically dominated conversations. But he was uncharacteristically silent as Olson, seated at the head of the table normally reserved for his host, made his pitch.

Basically, there were two ways to go, Olson said. One path involved challenging the constitutionality of the Clinton-era Defense of Marriage Act. DOMA, as it was known, created real financial hardships for gay and lesbian couples that had legally married in states like Massachusetts by denying them more than eleven hundred federal benefits. They were not entitled to the federal income tax break straight married couples enjoyed when they filed jointly. Federal employees could not cover their same-sex husbands or wives under their insurance policies. In death, married same-sex couples also were penalized. Unlike their straight counterparts, surviving spouses had to pay estate taxes on the assets left to them, and had no right to their partners’ Social Security death benefits.

But challenging DOMA would potentially pit the group against the Obama administration’s Justice Department, forcing a president who had said during the campaign that he believed marriage was between a man and a woman to choose a side. Besides, Olson said, he wanted to keep it simple.

“
Don’t bring DOMA into this,” Olson advised. “I don’t want to talk about taxation or health insurance. I want to talk about equal protection under the law.”

The second, and better option, he said, was a lawsuit specifically targeting California’s ban on same-sex marriage. In Olson’s analysis, the passage of Proposition 8 was tragic, but it presented a unique and sympathetic set of facts for bringing an equal protection and due process case.

In 2004, San Francisco mayor Gavin Newsom had unilaterally begun issuing marriage licenses to same-sex couples in violation of a state law that defined marriage as a union between a man and a woman. The California Supreme Court had voided those unions, but in 2008 it found that the law itself violated the state constitution. The ruling legalized same-sex marriage in the state for six months. Proposition 8 was a response to that court decision; it
amended the state constitution in order to reinstate the same-sex couple marriage ban.

Its passage created what Olson would later refer to as a “crazy quilt” of marriage regulations. California now had three classes of citizens: opposite-sex couples who could marry, and remarry if divorced or widowed; eighteen thousand gay and lesbian couples married in the months after the California Supreme Court ruling made it legal but before the passage of Proposition 8, who could not remarry if divorced or widowed; and unmarried same-sex couples who now wanted to wed but were prohibited from doing so by Proposition 8. Given that set of facts, even if the Supreme Court weren’t ready to find a nationwide right of same-sex couples to marry, Olson believed that at the very least it might still declare California’s ban unconstitutional, paving the way for future gains elsewhere with a helpful precedent.

Another benefit of challenging Proposition 8 was that the defendants would be the governor, Arnold Schwarzenegger, and attorney general, Jerry Brown. Both had come out against the passage of Proposition 8 and thus would be unlikely to vigorously defend it. And the governor’s wife, California’s first lady, Maria Shriver, was a friend and client of Kristina’s who passionately believed in the gay rights cause.

In addition, a Proposition 8 challenge would play out on friendly legal terrain. The case would first be heard in the U.S. district court in San Francisco, which meant that the appeals court that would review the verdict, since win or lose it was sure to be appealed, would be the Ninth Circuit Court of Appeals, considered the most liberal in the nation.

Winning in the Ninth Circuit would represent a huge victory, potentially legalizing same-sex marriage not just in California, but also in Washington, Oregon, Idaho, Arizona, Hawaii, Nevada, Montana, and Alaska. Ultimately, though, Olson expected that a deeply divided Supreme Court would have the final say.

There, Justice Anthony Kennedy would likely be the swing vote. He had authored the majority opinions in both the
Romer v. Evans
and
Lawrence v. Texas
cases.

But Olson said it was important not to take any votes for granted. He knew all nine justices both professionally and socially. Justice Kennedy had attended his wedding. Justice Scalia, whose eldest son worked for Olson’s firm, and the
more liberal Justice Ruth Bader Ginsburg had a tradition of spending New Year’s Eve at the Olsons’ home, with Justice Ginsburg’s husband cooking up game that Justice Scalia had shot on a hunting trip.

Olson believed that a majority would find bans like Proposition 8 unconstitutional, but each would have issues that would need to be addressed, he said. Justice Ginsburg, for instance, had stated publicly that she believed the Court moved too far too fast in finding a constitutional right to abortion in its 1973
Roe v. Wade
decision. Despite her support for abortion rights and her place as an anchor of the Court’s liberal wing, she felt that the Court had short-circuited the democratic process and might have avoided backlash had it allowed more states to take the lead in legalizing abortion before issuing such a sweeping decision.

She could have similar concerns about same-sex marriage. Abortion was legal under some circumstances in twenty states when
Roe
was handed down, eighteen more than currently allowed same-sex marriage. And although public attitudes on same-sex marriage were shifting, particularly among young people, the majority of Americans remained opposed.

“
This isn’t about winning five to four—this is about winning as many of the nine as you can,” Olson told the group. “So you need to run nine separate cases at once.”

Rob Reiner was struck by how similarly Olson and he viewed the case: Both saw the battle for marriage equality as one of the last pieces in the American civil rights puzzle, the only arena left in which the government openly discriminated against its citizens. Still, he asked, “Won’t this cause issues for you both professionally and personally within your circle in D.C.?”

“No,” Olson replied. “I’ve been in the eye of the storm before, and if I believe in something, I do it.” Pausing, he looked around the table. “
I will not just be some hired gun,” he said. “I would be honored to be the voice for this cause.”

It was a turning point. Until then, the group had been feeling Olson out. Now the discussion turned to the way forward.

Olson was willing to take the case for a discounted, flat-rate fee: $2.9 million plus expenses to take the case to the Supreme Court. The Reiners and Chad said they would begin looking for potential donors, while quietly sounding out activists in the gay rights community.

But Olson’s involvement was deemed by the group to be so potentially
explosive among conservatives and gay activists alike that everyone was sworn to secrecy on that front. Olson, for his part, promised to take the lead in finding a Democratic co-counsel with sterling credentials, to help alleviate the suspicion his involvement was sure to engender on the left.

In the meantime, he said, the first order of business was to find sympathetic plaintiffs who wanted to get married but could not because of the passage of Proposition 8. The couples should be in long-term, committed relationships, Olson advised, and they should be regular folks whom people could identify with, not activists or celebrities.

“
I want a teacher, a police officer, and someone who owns a bookstore,” he said.

Hugging Olson as he walked him to the door, Rob Reiner couldn’t contain himself. “
We are going to the Supreme Court!” he declared. “And we are going to win!”

O
n March 9, 2009, Chad strode through the modern lobby of the Creative Artists Agency in Century City, California, home to some of Hollywood’s biggest stars. A friend, a top talent agent there, had suggested he meet with one of Creative Artists’ most promising young screenwriters.

His name was Dustin Lance Black, and he had just won the Academy Award for Best Original Screenplay for
Milk,
the movie starring actor Sean Penn as the gay rights activist Harvey Milk that Cohen had produced.

Chad had heard about Black through Cohen, and he had come to the meeting hoping to enlist his help in convincing the gay community that a federal lawsuit was the way forward. When Milk was assassinated in 1978 by a former city supervisor who had clashed with him over gay rights, he was organizing a federal march on Washington in an effort to nationalize the struggle—a bolder course of action than the current state-by-state strategy of “Make Change, Not Lawsuits,” and one that Black had seemed to advocate during his Academy Award acceptance speech.

“If Harvey had not been taken from us thirty years ago,” Black had told a televised audience of tens of millions, “I think he’d want me to say to all the gay and lesbian kids out there tonight who have been told that they are ‘less than’ by their churches or by the government or by their families, that you are beautiful, wonderful creatures of value and that no matter what anyone tells you,
God does love you and that very soon, I promise you, you will have equal rights, federally, across this great nation of ours.”

With his sculpted cheekbones, stylishly cut blond hair, and laid-back uniform of Chuck Taylors and black jeans, Black looked every bit as at home in California as Chad did in D.C. But within minutes of sitting down in one of the agency’s conference rooms, the two men recognized themselves in one another. Both had grown up in conservative parts of the South, unaware that they even knew another gay person, with all the baggage that entailed.

Chad hailed from Hope, Arkansas, where he had worked at a local Walmart as a teenager. Before Bill Clinton walked into his life, he had thought he might make a pretty good store manager someday.

But one day a friend had phoned him, asking, “What the fuck are you doing? The next president of the United States has a campaign headquarters an hour from your house.” He volunteered, and soon found himself working for top Clinton aide Dee Dee Myers and walking into the West Wing as a nineteen-year-old press staffer on inauguration day, part of a skeleton crew that had been welcomed at the gate by a Secret Service agent with the words, “Welcome. This is your White House now.”

While Chad was settling into his desk in the White House press office, outside, under a crystalline January sky, the new president was delivering a speech that spoke to the promise of America. For nearly a hundred years, in a country founded upon the immortal declaration that “all men are created equal,” slavery was legal in parts of the United States. Until the 1920s, women were denied the right to vote. During World War II, Japanese Americans were rounded up and imprisoned in internment camps. Jim Crow laws relegated African Americans to second-class citizenship into the 1960s. But America is also a country that corrects course, edging, in fits and starts, but inexorably, toward inclusion.

“This ceremony is held in the depth of winter, but by the words we speak and the faces we show the world, we force the spring,” the new president, the first baby boomer to hold the office, declared.

“When our founders boldly declared America’s independence to the world and our purposes to the Almighty, they knew that America, to endure, would have to change. Not change for change’s sake but change to preserve America’s
ideals: life, liberty, the pursuit of happiness. Though we marched to the music of our own time, our mission is timeless. Each generation of Americans must define what it means to be an American.”

It was a wildly improbable journey, one that had led Chad to believe that “anything was possible, if you just worked hard enough,” said one of his best friends, President Obama’s senior adviser Daniel Pfeiffer. “His whole experience tells him that. Here’s a kid from a small town in Arkansas who was going to a tiny Baptist college. And all of a sudden he is flying the world aboard Air Force One with the president of the United States. He is not intimidated by the prospect of failure.”

Still, for all of his outward confidence, throughout his years in Washington, Chad had been haunted by the fear that if he told anyone he was gay, his friends and everything he dreamed for his future would evaporate. He had left the White House in 1994 to finish his college degree at Georgetown University. One day he wanted to return home and, like his mentor, run for office.

“
I can’t come out,” he thought. “I can’t go back to Arkansas and run for governor as a gay man.”

And so he had found other ways to fill his life, dating girls sporadically and working nonstop, first for Bill Clinton and later for the Reiners in California. There, he had finally felt comfortable enough to begin dating men, but it wasn’t until a friend was killed in the 9/11 terror attacks that he decided to stop keeping it a secret. He was twenty-eight years old.

“
Life is too short,” he told himself. “Being governor isn’t everything.”

Black, at thirty-four, was a year younger than Chad. Born in Texas, he grew up in a military community attending the Mormon Church, which taught that homosexuality was a sin that must never be acted upon. (The church would later flood California with money and get-out-the-vote volunteers critical to the passage of Proposition 8.)

He spent portions of kindergarten in the principal’s office, so shy and frightened of his schoolmates that he suffered panic attacks. His first crush, at age six, brought an overwhelming sense of shame. Adolescence, with its first stirrings of real desire, brought thoughts of suicide. He did not dare act on his feelings until he was twenty-one.

“What’s so messed up,” he told Chad at that first meeting, “is that the
movies celebrate first love, first kisses. But gay kids are robbed of that ability to have a celebrated adolescence,” and even with a lot of therapy grow up with poor self-esteem as a result.

“
I think that sometimes we think we don’t deserve full equality,” he said. “We are all a little bit broken.”

Black was in the midst of writing his next screenplay, about J. Edgar Hoover, and researching the relationship between the famed and feared former FBI director and Martin Luther King Jr. “
King,” he told Chad, “wasn’t afraid to name the dream. We shouldn’t be either.”

Black and Cleve Jones, an aide of Milk’s who had gone on to become one of the country’s best-known AIDS activists, had been working on a plan to put together a grassroots political organization to press for full federal equality for gays and lesbians in all 435 congressional districts. But when Chad floated the idea of a lawsuit instead, he was immediately intrigued. That promised much faster action.

The two men wrapped up the meeting with a promise to reconvene soon. Chad would bring Cohen, and Black would bring Jones. If Jones, who had conceived of the AIDS quilt to memorialize the disease’s victims, could be persuaded to sign on to the plan to file a federal challenge to California’s ban, it would send a powerful signal that this wasn’t just some scheme by a group of Hollywood know-nothings.

Jones, at age fifty-four, was not predisposed to like Chad. He had seen many a glib whiz-kid operative come and go, promising the world and delivering failure. So when the four men sat down for breakfast at Palihouse, a boutique hotel in West Hollywood, a few days later, he was skeptical.

Chad began the meeting by talking about his experience as a political operative, and how litigation could be used to move public opinion. He made it all seem eminently doable—here are the steps, we need to raise this much, we need to file by this date so we can get a decision by that one.

Jones had agreed to the meeting because he too was frustrated with a movement that seemed to have no sense of urgency about it. Its leadership ranks had been decimated by the plague of HIV/AIDS. The demonstrations of groups like
ACT UP, which in the 1980s staged protests to demand access to better and lower-cost drugs to treat the disease, had given way to a sort of entrenched “Gay Inc.” health care delivery bureaucracy. The result, Jones believed, was a generation of leaders unwilling to rock the boat for fear of losing corporate donors, and willing to settle for just a fraction of equality.

But Chad seemed different, he thought as he listened to him spell out his vision for a federal lawsuit. He was aggressive, a control freak in a good way, and, most important, he wanted to win.

Midway through breakfast, Chad excused himself and walked away to make a phone call. He had saved the best for last, but needed permission to share the information with Black and Jones. When he came back, he said, “I have something to tell you. We can get Ted Olson to represent us.”

Jones drew in a sharp breath; this actually might work. Black lit a cigarette. Imagine, he thought, going home and telling his Texas friends and Mormon family that someone like Olson was on their side.

“What can we do?” Black asked.

Twice a year, some of the richest gay donors in the country gather at an event called OutGiving. It is a place where donors learn about the work being done on both a political and charitable level to help improve the lot of the gay community. It was, Chad thought, the perfect venue to test the waters on the new direction the group was contemplating. The event was to be held later that month at the Ritz-Carlton Lake Las Vegas. Black had been invited, but had yet to accept.

Come with me, Chad urged. Give a speech that builds upon your Oscar acceptance and let’s see how it flies.

Standing before the audience of donors in Nevada on March 21, Black knew before uttering a word that he was in for trouble. Hours earlier, he had been confronted in the hotel’s courtyard by Evan Wolfson, the fifty-two-year-old founder of a group called Freedom to Marry and the primary author of the cautious state-by-state marriage strategy that the gay rights movement had been pursuing.

Wolfson had berated the younger man over his Oscar speech, explaining as
though to a willful but ignorant child his ongoing, twenty-five-year plan to build support for marriage equality nationwide. Twenty-five years? Black had practically gasped. But he had said little; it was intimidating, to say the least, to be dressed down by a pioneer of the marriage equality movement.

Wolfson had devoted his life to the cause, writing his third-year thesis at Harvard Law School in 1983 on the right of gays and lesbians to marry, an idea considered so radical at the time that he had trouble finding an academic adviser. He had served as co-counsel in the first state court case challenging a same-sex marriage ban, filing a lawsuit in the early 1990s in Hawaii. He had won the case but lost the battle when voters there enacted a Prop 8–like constitutional amendment. His book on the subject had been called “perhaps the most important gay-marriage primer ever written.”

Following the encounter, a shaken Black had called Chad in his room for reassurance.

There was, both felt, a generation gap at work. Younger activists like Chad and Black had grown up in a relatively safer world, where gays and lesbians were not forced to congregate in bars with no windows for fear of being raided and attacked, where courts did not routinely strip custody from gay parents in divorce proceedings, and where they saw themselves reflected positively in television shows like
Will &
Grace
. It was easier for them to envision success now.

“
This just means we are doing the right thing,” Chad had said.

Still, it was with some trepidation that Black launched into his speech. Following the passage of Proposition 8, he told the crowd, he was shocked when a leader of one of the largest gay rights organizations in the country offered this advice: “He said, ‘If we just quiet down, they’—whoever they are—‘will let us do whatever we want.’

“Those are the words of one of the leaders of our current organizations, and as a student of Harvey Milk, I will tell you they are not just the same ‘kind’ of people who told Milk it was too soon for a gay elected official back in 1977—some of them are the very same people.”