Forcing the Spring: Inside the Fight for Marriage Equality (45 page)

At his firm in San Francisco, Judge Walker was taking a break from a lengthy mediation he had been overseeing. Like Olson and Chad, he was hoping that the Court would “bite the bullet,” as he put it, and deal head-on with the questions raised by the passage of Prop 8. But he had forgotten that today could be the day the Supreme Court announced its cert decision until he saw it flash across the
New York Times
Web site and his e-mail pinged. Walker had bet a friend dinner that the Court would take the case.

You won, the friend e-mailed. Pick your favorite restaurant.

Bruce Cohen was driving along Santa Monica Boulevard when he got a text from AFER. He pulled over to the side of the road as CBS national news broke
into his local radio station’s report. He had talked himself into the idea that if the Supreme Court declined to hear the case it would be good for gay Californians, if not the rest of the country. Only now did he realize just how much he had been hoping for this outcome.

“
There’s only one Supreme Court of the United States,” he recalled thinking, “and our case is going there!”

Nearby, the Reiners were in a theater, watching Cohen’s latest hit movie,
Silver Linings Playbook
. Soon enough, a measure of trepidation would set in. Which justices voted to grant cert? Was it the four conservatives, and if so, did that mean that they believed they could win Kennedy’s vote to uphold bans like Prop 8? If it was the four liberals, would they be hesitant to decide the issue broadly? But for now, they just looked at each other, high-fived, and ran out to the car to call Chad and the rest of the AFER gang.

In Florida, though, a less euphoric scene was unfolding. David Boies had just stepped off a private jet when he heard the news via a four-word e-mail from Olson: “Cert has been granted.” He had flown in from Rhode Island, where he had taken on a massive new case: defending the state’s attempt to overhaul its pension system against a challenge by the unions.

The night before, he and Dawn Schneider, who handled press for Boies, had been talking about the case. He had set the odds of the Supreme Court taking the case at between 30 and 35 percent, so the decision came as a surprise.

“
David,” she said, hugging him, “congratulations on getting the attention of the highest court in the land.”

He looked at her, subdued. “But I didn’t want them to grant cert,” he said, before climbing into the gray Chevy Suburban waiting for him on the tarmac.

He had mostly kept quiet about his growing unease, but he had stunned Adam several weeks earlier by telling him that he put the team’s chances of winning the case at the Supreme Court at only fifty-fifty. “Where was that three years ago?” Adam recalled thinking.

Boies was less trusting of the justices than Olson. A Court that had done to him what it did in
Bush v. Gore
could do anything, and, as his wife, Mary, and taken to warning of late, “Nothing good has come out of this court recently.”
She worried aloud that some members of the team were getting drunk on their own whiskey, and when Schneider e-mailed her a copy of the cert order to keep for posterity that afternoon, she wrote back darkly, “Don’t frame it yet.”

But Boies did not share his fears when he joined Olson and Boutrous, who were at the Peninsula Hotel in Los Angeles for a partner meeting, on a conference call. The Supreme Court, in its orders, had made clear that in addition to the equal protection claims raised in both cases, the lawyers should be prepared to argue whether standing questions prevented the Court from reaching the merits and deciding the constitutionality of Proposition 8 or DOMA. In the Prop 8 case, those questions arose from the state’s failure to defend the initiative on appeal. In the DOMA case, they arose because the federal government was appealing a ruling finding DOMA unconstitutional, even though the government agreed that was the correct outcome, in order to enable members of Congress, who arguably might not be able to invoke the Court’s jurisdiction to challenge that decision.

By including those questions in both cases, the Court gave itself the option of dismissing them on procedural grounds, without confronting the important constitutional claims raised by Kris, Sandy, Jeff, Paul, and Edie Windsor. That would leave intact the decisions of the trial courts that had heard the two cases. So in California, the state would stop enforcing Proposition 8 based on Judge Walker’s order, but the question of whether bans like it were unconstitutional would go unaddressed. And while Edie Windsor would get her money back, per the New York district court’s order in her case, DOMA would remain the law of the land.

“It’s almost like they are leaving themselves an out,” said Josh Lipshutz, a former Scalia clerk had recently joined the Gibson Dunn Prop 8 team.

When the call was opened up to reporters, Boies acknowledged some “mixed feelings” about the Court’s decision to review the Ninth Circuit ruling, even as he pronounced himself “encouraged and excited.” But Olson made no pretense at being disappointed. He felt as strongly as ever that this was the right case at the right time, and, as he once put it, any good poker player knows that is the moment to “go all in.”

“I think it’s going to be so important for the Supreme Court to address the merits here,” he said, ostensibly to the reporters, but in reality to the justices. “We all felt all along, that this case was—and we said it in our briefs filed in the Supreme Court—that this case was a perfect vehicle to decide the fundamental rights of all Americans with respect to the right to marry.”

“As much as we want to get married,” said Kris, who was also on the call,
“what we have ultimately wanted was the, the very biggest and broadest, boldest outcome possible. And that can only happen if the Supreme Court listened to our case.”

Hanging up, Boutrous turned to Olson. The adrenaline was still pumping, but the enormity of what the case meant to so many people suddenly hit them both at once.

“
Now,” Boutrous said, “all we have to do is win.”

O
n January 18, 2013, Ted Olson returned to the U.S. Department of Justice, David Boies and Terry Stewart in tow, and made his way up to an ornate conference room on whose walls a photo of Olson still hung, where he was greeted by a man whose job he once held: Donald Verrilli, the solicitor general of the United States of America.

Verrilli, a mild-mannered man with a salt-and-pepper mustache, had taken over the office in 2011, after the Justice Department’s internal deliberations led it to take the position that DOMA’s denial of federal benefits to same-sex couples was unconstitutional. Olson was a man on a mission, there to convince Verrilli that the time had come for the administration to get off the fence and do the same in the Prop 8 case, by filing a brief with the U.S. Supreme Court that embraced a constitutional right to marry for gays and lesbians.

Part of the strategy in any major Supreme Court case involves marshaling outsiders to file amicus curiae, or “friend of the court,” briefs that augment the primary arguments. All parties in the marriage case had been hard at it since cert was granted in December.

Cooper, for instance, had been working with Nelson Lund, a professor at George Mason University School of Law, on a brief arguing that the case should be decided solely on the basis of the law, not social and behavioral science “with a long history of being shaped and driven by politics and ideology.” A number of state attorneys general from parts of the country where same-sex marriage
was outlawed had filed another arguing that it was within the states’ purview to define marriage. Officials from different religious denominations had weighed in on both sides of the debate. And dozens of briefs, with the guidance of both Olson’s and Robbie Kaplan’s teams, had been filed in support of the four Prop 8 plaintiffs and Edie Windsor.

One played to Kennedy’s interest in international law by outlining the increasing number of countries that had legalized same-sex marriage. Another, dubbed the “red state brief,” made the case for Court intervention by arguing that millions of gays and lesbians live in deeply conservative states where they are powerless to dismantle systems of “de jure denigration” that deprive gay and lesbian citizens of legal equality “from cradle to grave.” In an episode that “echoed an era when municipalities closed swimming pools rather than integrate them,” the brief noted by way of example, “the Salt Lake City School district shuttered all non-curricular school clubs rather than allow a Gay-Straight Alliance to meet.” A third, signed by 214 members of Congress, urged the Court to find DOMA’s denial of benefits to married same-sex couples unconstitutional.

Ken Mehlman was working with Reginald Brown, who served in the White House Counsel’s Office under President George W. Bush, on a brief in the Proposition 8 case that would soon make front-page news. Quoting liberally from conservative tomes like Barry Goldwater’s
The Conscience of a Conservative
and Alexis de Tocqueville’s
Democracy in America,
the brief argued that Proposition 8 failed the rational basis test because there was no legitimate, fact-based reason to keep gays and lesbians from entering into an institution that “promotes the conservative values of stability, mutual support and mutual obligation.” Marriage, the brief concluded, provides a “protective shelter and reduces the need for reliance on the state,” and would greatly benefit the children of gay and lesbian couples.

It was signed by 131 Republican officials, many of them brand names and newcomers to the cause of same-sex marriage, including senior members of the Reagan administration like former White House chief of staff Ken Duberstein, Bush cabinet members like former Homeland Security chief Tom Ridge and former commerce secretary Carlos Gutierrez, Bush Justice Department veterans like Deputy Attorney General Jim Comey, Bush’s undersecretary of the Treasury, Bush’s godson, the former general counsel of Romney’s
campaign, four former Republican governors, and former Proposition 8 defender Meg Whitman, who had once vowed to appeal Judge Walker’s decision but had changed her position after losing the California gubernatorial race to Jerry Brown.

All of those voices were important, but the one Olson strongly felt was most crucial was still missing: Verrilli’s. Justices leaning their way might feel more comfortable striking down bans like Proposition 8 if that position had the stamp of approval of another branch of government. “
It adds institutional impetus and imprimatur,” explained Amir Tayrani.
Conversely, if the administration failed to take the position that Proposition 8 was unconstitutional, it would give “everybody on the Court who wanted to come out against us a fig leaf, and a pretty big fig leaf at that,” Boies said.

The solicitor general is often called the “tenth justice.” Unlike other “friends of the Court,” the justices afford the solicitor general argument time. Because the office argues cases on behalf of the U.S. government and appears so often before them, the justices tend to afford its views great weight. With that in mind, it picks its battles carefully, mindful of the need to articulate a federal interest.

The office had to take a position in DOMA; Edie Windsor had sued the federal government to get her money back, and it was a federal law involving federal benefits that the federal government was still enforcing. But it was not a party to the Proposition 8 litigation, and it had declined weigh in on some notable past challenges to state laws. It took no position in the
Loving v. Virginia
case striking down state interracial marriage bans, for instance, or in the two landmark gay rights cases,
Romer v. Evans
and
Lawrence v. Texas
.

What interest, asked one of the lawyers whom Verrilli had brought to the meeting, did the U.S. government have in a California voter–approved ban?

Terry Stewart had prepared for this question. She and Olson had made their peace with the idea that neither could completely control what the other did. Their strategic disagreement had evaporated once the justices decided to take the case. With multiple choices now before the Court, Stewart saw no reason why Olson shouldn’t make the broadest possible argument: In her view, “It’s going to shame them out of doing nothing for us.” She still thought that Olson and Chad, in their desire to be the saviors of the gay community, had set expectations too high. But when she shared her worry about the Court with Olson, he had been empathetic. He understood why she, of all people, would feel that
way, he had said. It was her victory in the California Supreme Court, after all, that the voters had snatched away when they passed Prop 8.

Now she rallied to Olson’s side with a list of precedents supporting the solicitor general’s involvement. In the 1960s, the solicitor general had argued to strike down a California voter initiative and an Akron, Ohio, city ordinance in two landmark housing discrimination cases called
Reitman v. Mulkey
and
Hunter v. Erickson
. The first was argued by then solicitor general Thurgood Marshall, whose portrait hung in Verrilli’s office and who would go on to become the nation’s first African American justice. And citing the “federal government’s special responsibility for assuring vindication of the fundamental rights guaranteed by the Constitution,” the solicitor general had argued to strike down state segregation laws in
Brown v. Board of Education
.

Olson, never one to mince words, was impassioned as he argued that it was no less a moral imperative that Verrilli take a position in the Prop 8 case. “
This,” participants recall him saying, “is one of those ‘what did Daddy do in the war’ moments.”

Three days later, after taking the oath of office on a Bible once owned by Martin Luther King Jr., President Obama stood before a crowd of close to one million people and gave an inaugural address that drew a straight line between the iconic civil rights fights for racial and gender equality and the current struggle being waged by gays and lesbians.

“We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls and Selma and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth. It is now our generation’s task to carry on what these pioneers began.”

When he was sworn in to office in 2009, Obama had infuriated gay rights advocates by inviting Rick Warren, an evangelical pastor of a megachurch in California and an outspoken supporter of Proposition 8, to give the invocation.
But four years later, on a sunny, brisk afternoon, Obama delivered his clearest and boldest declaration yet that in a country whose march through the centuries had been defined by an ever-expanding ideal of freedom, the disparate treatment of gays and lesbians could no longer be tolerated.

“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said, “for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

Boies, who was sitting with his wife, Mary, in prime seats in the stands, felt a shiver go up his spine. Surely a man who had just given an address like that could no longer stand on the sidelines.

Chad and Boies were not yet in full panic mode when they walked up the driveway of the White House nine days later on January 30, but they were close. The day after the president delivered his stirring inaugural speech, two things had happened, neither of them good.

Cooper had filed an opening brief with the U.S. Supreme Court that quoted the president three times, drawing liberally from the preelection interview in which Obama disclaimed any desire to “nationalize” the “healthy debate” taking place in states around the country on marriage and declared that supporters of marriage bans “are not coming at it from a mean-spirited perspective,” thus undercutting the legal argument that Proposition 8 was motivated by animus. And White House spokesman Jay Carney, asked whether the president’s speech indicated a shift from his previous position that the states should be left to chart their own course on marriage, said it did not, adding that “we’re not involved” in the Proposition 8 case.

Since the election, Chad and Mehlman had been talking about the need for the gay rights movement to become more assertive in general, and on this issue in particular. Asking the Supreme Court to overturn Proposition 8 would require the president to evolve yet again, and Mehlman had already e-mailed senior adviser David Plouffe some suggested talking points for the president to use to publicly explain why he now believed it was a matter for the Supreme Court, rather than the states, to decide:

• On 14 different occasions, the US Supreme Court has held the right to marry the person you love to be one of the most important relationships in the human condition.
  
• This right is particularly personal to me as the child of parents who, prior to the Supreme Court’s landmark decision in
  Loving v. Virginia
  in 1967, would not have been recognized as married in at least 16 states.
  
• My parents were married in Hawaii, but if they had moved to a state like Virginia or Maryland at this time, their marriage would not have been recognized. Today, it seems inconceivable that such discrimination was tolerated and widespread.
  
• My parents’ situation is not unlike the one faced by loving gay and lesbian couples legally married in states like New York or Maryland, or here in the District of Columbia.
  

In the wake of Carney’s unhelpful comments, Mehlman offered Chad some typically blunt advice. “This is not about friendship,” Mehlman recalled saying. “It’s about interests. The gay community raised a lot of money for Obama, and now they want something in return. No more beaten down, begging for scraps at the table.”

Chad had fired off a press statement, then privately asked for the meeting at the White House. “
In the contemporary challenge to the Defense of Marriage Act, the law barring federal recognition of lawful same-sex marriages, the Justice Department has made clear its belief that that odious law defies our Constitution’s promise of equality,” his public statement read. “As the Justices deliberate in a building that bears the chiseled words ‘equal justice under law,’ we hope the White House will ensure that its thinking in the
Perry
case—and the voice of a decisive majority of Americans—is heard loud and clear.”