Forcing the Spring: Inside the Fight for Marriage Equality (40 page)

“It was this dreamy family thing that was forced on us,” Tom said. “So at the time that my brother and I most needed her attention, it was cut short. It was messed up.”

Both had since moved past blaming their dad’s death on the relationship. “Emotionally, he was totally abusive—he was drunk all the time,” said Frank, his soft blue eyes a mirror of Sandy’s. “I don’t blame her for leaving.”

But at the time, they had both been angry, sad, and deeply resentful of Kris’s attempts to curb the rebellion that followed. Frank had hated the way that the
People
magazine made them all out to be some kind of modern-day Brady Bunch, when the reality was he spent much of his teen years in sullen escape, listening to punk music and hardcore metal and lifting weights.

“I said some awful things,” he said. “If Kris makes my mom happy, that makes me happy, but . . .”

He trailed off.

“
My mom was mine, and now she’s Kris’s.”

“There’s just a pile of human detritus,” Sandy had said sadly, as they drove over to the Reiners’ the night before.

Now, around the AFER conference table, everyone kept their eyes glued to their laptops, waiting to see if they would have to endure yet another round at the Ninth Circuit.

“Denial,” Eric Kay, a newcomer to the team who handled research, suddenly announced.

Everyone started clapping. “Cool,” Kris said, the relief evident in her voice. “Yes!”

“Wow,” Chad said. “That’s—that’s amazing. Nice parting gift.”

The vote denying the rehearing that Cooper had requested was 21–4. Diarmuid O’Scannlain, a deeply Catholic, conservative judge on the Ninth Circuit, had written the dissent. Kay began reading aloud. Obama’s political hedge was featured front and center.

“A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter,” O’Scannlain had written. “Drawing less attention, however, were his comments that the Constitution left this matter to the States and that ‘one of the things that [he]’d like to see is that [the] conversation continue in a respectful way.’ Today our court has silenced any such respectful conversation.”

Kay asked if he should read on.

“No,” Adam said firmly. “All we need to know is it’s denied.”

PROP 8 HEADED TO SUPREME COURT
, read a sample headline. But Reinhardt and Hawkins had taken the unusual step of writing an opinion that concurred in the decision to deny Cooper’s request for a rehearing, but practically begged the justices not to take the case. Kay, unable to help himself, began reading what Olson would later call Reinhardt’s fit of “pique” aloud:

“We did not resolve the fundamental question that both sides asked us to; whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.”

Chad put his chin in his hand. Sandy frowned. Kris, who had been smiling just a moment before, hunched her shoulders forward and looked down at the table. No one said anything.

“Fuck Judge Reinhardt,” one of the younger AFER staffers finally muttered, summing up what everyone was thinking.

Judge Walker would not have put it so colorfully. But he too was disappointed. He had known throughout the trial that it was only a matter of time before his sexual orientation became the subject of headlines. It had crossed his mind that it might have been better if the case had been assigned to a straight judge,
because as he listened to the weight of the evidence, “it seemed pretty clear where this was headed.”

“I thought, ‘Your personal life is going to get in the way and that’s not going to be helpful,’” he said.

In the end, he had wound up thinking that it was not such a bad idea to have a gay man try the case, for the same reason that it was not a bad idea for a woman to hear a sex discrimination case. But it had not been easy to sit silent during the multiple attacks on his impartiality. He had just returned to private practice as a mediator when Cooper filed his motion arguing that Walker’s ruling that Proposition 8 was unconstitutional should be thrown out, or vacated, in legal terms, because he should have recused himself from the case or disclosed that he was in a long-term relationship. “Dirty pool” is how Walker characterized the move.

“
You wonder what people are going to say at work. Not only is there a gay man in our midst, but one whose sexuality is being litigated. I was at the gym one day and a friend was reading the story about the motion to vacate my order. As I walked by, I thought, ‘I wonder what’s going through his mind?’”

He had stepped up and done what he though the law and the facts required. The Ninth Circuit’s opinion was, to his way of thinking, “too clever by half,” an assessment shared by not a few legal analysts. By holding that the many benefits California granted gays and lesbians made Proposition 8 particularly irrational, Reinhardt had created a perverse incentive: States currently contemplating extending domestic partnerships or other protections to their gay and lesbian citizens might now think twice.

It was also, Walker said, a stretch to read
Romer
the way Reinhardt had. Circuit judge O’Scannlain, whom Walker considered a friend, had written that the panel’s interpretation of the landmark Supreme Court case was a “gross misapplication” that “would be unrecognizable to the Justices that joined it, to those who dissented from it, and to the judges from sister circuits that have since interpreted it.” Just because a court says that a right exists, as the California Supreme Court did when it cleared the way for gays and lesbians to marry, does not in and of itself make it unconstitutional for voters to amend their constitution, Walker thought. “It really doesn’t hang together.”

When he ran into Reinhardt weeks after the en banc decision at the Ninth Circuit judicial conference in Hawaii, he told him as much, saying he wished he
had decided the case on broader, and in his view, more defensible grounds. Reinhardt’s response made it clear to Walker that the decision had been written in the way it had because Reinhardt was worried that if the justices of the Supreme Court took up the case, they might vote to uphold bans like California’s.

“
I told him he shouldn’t have given up so easily,” Walker said. “And he said, ‘You have more faith in those people than I do.’”

T
he way that Chuck Cooper found out that his star witness at trial had switched sides was by e-mail. At 12:52
P.M.
on June 22, 2012, a lawyer on his team, alerted by ProtectMarriage.com, forwarded him a link to an op-ed on the
New York Times
Web site. It was headlined, “How My View on Gay Marriage Changed,” and it was written by David Blankenhorn.

“
I thought it was pretty lousy,” Cooper said, recalling that moment. “I sure did.”

The timing was terrible. Cooper was in the midst of preparing his cert petition, asking the Supreme Court to hear the case and reverse Judge Reinhardt’s holding that Proposition 8 was unconstitutional. The Court grants review in only about a hundred of the approximately ten thousand petitions it gets each term, and it takes a vote of at least four of the nine justices. But it was hard for Cooper to fathom that the votes weren’t there, given the makeup of the Court, the sheer size of California, and the importance of the constitutional principles at stake.

The Ninth Circuit panel’s 2–1 decision against his clients had not come as a surprise, though he had been prepared for and even expected a much broader ruling. Judge Reinhardt had been smart and savvy to avoid taking the fifty-state step that Olson had urged, Cooper thought, but in the end he did not believe the panel’s reading of the
Romer
case would hold up.

He had also fully expected to lose his bid for en banc review, but the
maneuver had produced the result he had desired. Judge O’Scannlain, in dissent, had laid out a more fiery case for Supreme Court review than had Judge Smith, whose understated conclusion—“I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests”—was not exactly a legal call to battle.

The months-long delay had also given the various DOMA challenges time to catch up to the Proposition 8 case, setting the stage for both to be considered by the Supreme Court sometime the following spring. In recent weeks, district court Judge Barbara S. Jones had ruled that the provision of DOMA that denied federal benefits to legally married gay and lesbian couples failed to meet the rational basis test in Edie Windsor’s case. And in a separate challenge, a unanimous panel of the U.S. Court of Appeals for the First Circuit in Boston had struck down the DOMA provision using what law professors call a rational basis “with teeth” analysis.

Circuit judge Michael Boudin, one of two Republican appointees on the panel and a jurist who was highly regarded in conservative Federalist Society circles, wrote the opinion. He declined to consider gays and lesbians a suspect class, citing circuit precedent, meaning that heightened scrutiny did not apply. And under a strict rational review test, he found that DOMA could survive a constitutional challenge. But because DOMA targeted an unpopular group and intruded on an area of regulation traditionally reserved to the states, Boudin wrote, Supreme Court precedent required “a closer than usual,” case-specific inquiry that lies somewhere in between the two standards. In other words, it should be subject to a rational basis “with teeth” test.

Among the Supreme Court precedents Boudin cited: A 1973 decision in a case called
Department of Agriculture v. Moreno
, striking down a congressional statute aimed at preventing hippies living in communal housing from taking advantage of the food stamp program, and a 1985 decision case called
City of
Cleburne v. Cleburne Living Center
, overturning a local zoning ordinance that discriminated against homes for the disabled.

Justice John Paul Stevens famously wrote that “there is only one Equal Protection Clause,” and it did not require that the Court apply different standards to different cases, but only that the state govern impartially. In his concurrence in
Cleburne
, he wrote that the rational basis test, properly understood, is adequate to decide whether laws that single out classes of citizens for special
treatment are constitutional, and he provided a framework for deciding cases that offered an alternative to the old multitiered scrutiny system:

“I have always asked myself whether I could find a ‘rational basis’ for the classification at issue. The term ‘rational,’ of course includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class,” he wrote. “In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a ‘tradition of disfavor’ by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment?”

Boudin, in his DOMA decision, appeared to apply the kind of rationality test that Stevens had laid out, with a federalist twist. In weighing the purported governmental purpose of DOMA against the burden imposed by the law, Boudin found no “demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefit to society of heterosexual marriage.” Instead, he said, the statute constituted an effort by Congress to “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.

“To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.”

The Justice Department was appealing both decisions in order to avoid the kind of standing questions that had been raised in California when the state refused to defend Proposition 8. But the actual defense of the law had been taken over by a standing body of the House of Representatives led by Speaker John Boehner, who had been elected Speaker after Republicans took over leadership of the chamber. Paul Clement, a protégé of Olson’s who had succeeded him as President Bush’s solicitor general, was the group’s lawyer.

The Supreme Court bar was an elite bunch, but even by those standards, Clement shone. Since 2000, he had argued more cases before the Court than any other lawyer, and had an easygoing rapport with the justices. He was known for his ability to argue polarizing legal causes—most recently he had
challenged the president’s health care overhaul and defended an Arizona law aimed at rooting out illegal immigrants—in eminently reasonable fashion.

Cooper knew and liked Clement, but he hoped the two cases could be played off one another to the advantage of his clients, the proponents of Proposition 8. Kennedy, in his
Romer
decision, had written of the “sheer breadth” of the Colorado amendment depriving gays and lesbians of the protection of antidiscrimination laws, declaring it “at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board.”

In deciding whether Proposition 8 was passed out of animus toward gays and lesbians, Cooper wanted the Court to compare what the federal government had done, in denying them a huge array of federal marital benefits, against what California had done, in granting them all the benefits of marriage but the name. And to the extent that the justices bought into the federalism argument that the definition of marriage should be left to the states, that could also be helpful.

Then there was a purely practical consideration. The justices look to the Constitution in deciding how to apply the law, but they must look to one another in deciding any given case. Building a majority of at least five can involve a fair amount of horse-trading.

“
Practically and strategically, I thought that having these cases argued and decided concurrently favored us,” Cooper said. “Because it always seemed to me that if the justices were looking for a Solomonic way to resolve these cases, that favored Proposition 8 being upheld and DOMA struck down.”

The only real downside to all the delay was that it had allowed for political victories like the passage of same-sex marriage in New York and, as Cooper put it, for public opinion to shift “with a velocity unlike anything I have ever seen.” Olson believed momentum only helped his side of the case, but Cooper saw it differently. “
It’s not at all clear that cuts in Ted’s favor more than mine,” he said. “It’s a Mexican standoff.”

To the extent the Court does not like to get out ahead of public opinion, public opinion was giving the justices “the green light,” he said. But “the other side of that sword,” in his view, was that the growing acceptance of same-sex marriage weakened Olson’s position that gays and lesbians needed the Court to intervene in the democratic process because they lacked sufficient political
power. He planned to “jujitsu that” into an argument designed to keep the Court from applying heightened scrutiny.

All in all, he was feeling pretty good about the way things were lining up. Then he clicked on the link to Blankenhorn’s mea culpa.

Over the course of the year and a half that had passed since the trial, Blankenhorn had given much thought to the position he had taken on the stand.

His high school– and college-aged kids disagreed with him, though they mostly expressed that to their mother. And debate sparring partners like Jonathan Rauch, the author of
Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America,
and Dale Carpenter, a constitutional law professor, had forced him to challenge his assumptions.

“
Getting to know them personally affected me,” he said, sitting in his office in New York a few months after his op-ed appeared. “I was ignorant about gay people. I’m not excusing myself from that charge of bigotry, because bigotry can be omission. You can have a wall of thought that prohibits you from asking interesting questions.”

When he was researching his book on same-sex marriage, he had read everything he could get his hands on. The elite debate, he found, was dominated by extremes. “A lot of people involved were hostile to the institution of marriage itself, and my fear was that gay marriage was a way to make marriage dead as a dodo,” he said. “But then, as I talked about it with people I knew, it slowly dawned on me. Most gay couples aren’t like that. They aren’t interested in destroying the institution of marriage. They are just trying to live their lives. I used to think that personal relationships shouldn’t affect your thinking. But I now know that it can be really helpful, because you realize that some of the things you thought are just not true.”

He was not alone in coming to that conclusion. A month earlier, a pioneering psychiatrist at Columbia University had retracted a controversial study he had published in 2003 concluding that reparative therapy could “cure” homosexuality in motivated patients. The study had been entered into evidence by Cooper during the trial to buttress the idea that homosexuality was not an immutable trait. But since then, the therapy had been denounced as a “serious
threat to the health and well-being—even the lives—of affected people” by the World Health Organization. The study’s author, Dr. Robert Spitzer, had acknowledged in a letter to the
Archives of Sexual Behavior,
the journal that originally published his study, that it lacked scientific rigor and had been deeply flawed. “
I believe I owe the gay community an apology,” Spitzer wrote.

Blankenhorn’s evolution came about over a period of months. Professor Carpenter talked to him about how when he was a lawyer in Texas, people from his firm would take down the licenses of cars parked outside gay bars and cross-reference them with the names of the firm’s employees. “This is our history,” Blankenhorn recalled Carpenter telling him. “This is what we are fighting about.”

That hit a nerve with Blankenhorn, whose formative moral experience was growing up in Mississippi during the civil rights movement. He had not gotten into this battle to hurt gay people, or to stop them from getting what they wanted.

He still believed that society should do all that it could do ensure that children do not grow up in broken, one-parent families. But in private conversations, Rauch would ask him probing questions: If you admit that there is some benefit to gays and lesbians being able marry, wouldn’t there have to be significant harm to the institution to justify banning them from doing so? Is fighting gay marriage really going to increase the likelihood that children will grow up with their own married mother and father?

The answer, he had come to realize, was no, because the trends on that front were getting worse every year. All the fight over same-sex marriage was doing, he concluded, was miring the country down in a culture war.

“I didn’t want to spend the rest of my life fighting this battle, which by the way, is over. It’s over. People have made up their minds. It’s just a huge mopping up at this point. The people who disagree are no longer willing to say they disagree. And that too, that should be one consideration, that there isn’t a way to stop this from happening.”