Forcing the Spring: Inside the Fight for Marriage Equality (49 page)

Kaplan, as the first-timer of the group, took it all in, but she was feeling whipsawed. She would incorporate some of the suggestions, but at the end of the day it was her case, and she wanted to leave a little daylight between DOMA and Prop 8. If Olson won, she would invariably win too. But if he lost, she did not want to go down with him.

The best piece of advice came from Olson himself: You can’t listen to everyone, he said. Pick a few people you trust, and tune everyone else out. “You
were great—you really got it,” he said, giving her a hug. “Enjoy it. It’s a big fucking deal.”

To everyone else, Olson announced, “All right. I’m going back to my cave.”

“Look at the camera,” instructed Anita Dunn, Hilary Rosen’s partner and, for the better part of Obama’s first year in office, his White House communications director. “Smile for me.”

Chad obliged. Behind him was a realistic-looking backdrop of the Capitol. A camera was rolling in the mock television studio SKDKnickerbocker used for media training.

“Hmmm,” she said, looking at the monitor before delivering her pronouncement. “You gotta get new glasses before Sunday.”

With what spare time? Chad thought. It was already Thursday, and with the first of the two arguments now just five days away, he had a full plate, and no one at home to help. He and Jerome had split up over the holidays. Jerome, who had left a big job to move across the country with Chad, had struggled to carve out his own identity living in a new town where a person’s line to power was what counted, where he was Chad Griffin’s boyfriend. And Chad’s all-in approach to his job and constant travel had not helped. To live in Chad’s world was to live in his vortex, and in the end it had proven too much. They remained friends, but the breakup had been hard on them both, and Chad did not much like to talk about it. After a brief trip home to visit family in Arkansas and regroup, he had come back and buried himself even deeper into work.

For days, Chad had been doing his own version of moot courts, to prepare for the multiple network and cable television appearances on his schedule. As the president of the largest gay rights organization in the country, he was a frequent guest on news programs, and by now was an old pro. But with the first of the two arguments just five days away and the Sunday talk shows just around the corner, the stakes suddenly seemed exponentially higher. What if a justice was listening? What if he said the wrong thing? He’d been waking up most mornings at around 2:30
A.M.
, mind racing with all the things he still needed to nail down.

As Boutrous had said earlier that afternoon, “We’re in a different realm.”

The smallest of missteps now took on crisis proportions. That morning, a nonprofit California-based gay rights group had sent over an advance copy of an ad it planned to run in the
Washington Post,
with a picture of Clarence Thomas and his white wife and a reference to the
Loving
decision. “Clarence Thomas and Virginia Thomas could not have married in the state of Virginia where they now reside,” it said. Kill it, Olson had urged. The entire team was closely monitoring another situation that threatened to take them off message: A blogger had somehow got his hands on an e-mail that Judge Walker had sent to a Gibson Dunn partner he knew, asking whether Olson thought it would be an unwanted distraction for him to attend the oral argument, along with a response in which the partner had said that he and Olson had reluctantly concluded that it would.

Earlier that afternoon, the four plaintiffs had done a press conference call. They were still in California, due to arrive on Sunday. For years, national reporters had focused largely on the Olson-Boies story line, but now the plaintiffs were fully in the spotlight. Multiple television crews had been to both Kris and Sandy’s home and Paul and Jeff’s, and some forty reporters had joined that afternoon’s call, including representatives from all the major networks.

“There is an opportunity here for the court to send a message that who we love is important and we should be treated equally under the law,” Kris told the reporters.

“We would expect the Court to step in and right these wrongs,” Jeff added.

All four plaintiffs had said similar things in the past, but as soon as they hung up, Boutrous had turned to Chad, an unhappy look on his face. “Two things I did not like,” he said. “We don’t want them saying what the Court should do, ‘the Court should send a message,’ ‘we would expect the Court to solve this problem.’”

The previous week Boies had broken the team’s cardinal rule, which was to never, ever talk about how individual justices might vote. During a sit-down with
USA Today
’s editorial board, he had predicted that it would not be a “5–4 decision” and made public his private concern about how old the justices were. Most, he had said, had grown up in an environment of “extreme hostility to homosexuals,” and while they were supposed to set that aside, “it’s not an easy task.”

Cooper, who had indeed been less than pleased with Eastman’s “second-best” comments about adoptive families like Justice Roberts’s, had been happy to see that his side was not the only one with foot-in-mouth disease,
while Olson had sent Boutrous to have a word with Boies. Time had been set aside for members of the legal team to prep Boies before he appeared on
Meet the Press
that Sunday. This was not a time for loose lips.

“Talking about the Court is dangerous,” Boutrous said, once they got Jeff back on the line. “We don’t want to be presumptuous.”

Chad had already done his prep session with the lawyers. He had his own balancing act to do. He had to hammer away on the inevitability factor, but, as Boutrous had warned him, “steer clear of suggesting that politics affects the justices.” He was sure to be asked about
Roe v. Wade
and the shadow it cast over the case, given that the
New York Times
was working on just such a curtain-raiser piece for the Sunday paper.
Roe
–based fear of potential backlash was, in Mehlman’s view, “the most potent message pushed by the other side in the final weeks,” and it needed to be addressed. Chad needed to find a way to say that gays and lesbians were not asking for new right and that allowing two people who love one another to marry was unlikely to inflame passions in the same way that the Court’s decision to allow women to terminate pregnancies did, but to do so in a way that did not throw the pro-choice community under the bus.

Chad had staff pull up questions about same-sex marriage that his interviewers had asked in the past. He had drawn up an elaborate “message box,” designed to allow him to pivot to the points he wanted to make no matter what question came his way. If remembering all that wasn’t difficult enough, now Rosen and Dunn gave him dozens of stylistic debating pointers.

“Half the game is how you look,” Rosen told him, admonishing him to stop fidgeting and waving his hands around. “The other half is what you say. Television is 55 to 60 percent visual. It’s so important not to be all beady-eyed and scrunchy-faced.”

He nodded. She continued. “Do not nod. It signals nonverbal agreement.” No “ums.” Use a bridge like, “What we’re really looking at here is.” When your opponent is saying something, keep a bemused expression on your face, “like, ‘You’re not getting to me, but you are just so out there.’” Dunn chimed in. “If
there is cross-talk, most people think viewers will listen to them if they speak higher and faster. They are wrong.” Speak lowly and slowly, in what Dunn called a “Mommy tone of voice, the one she uses when she wants you to pay attention because she’s really serious.”

Rosen threw a few more questions his way. “I love the way you talk about committed couples,” she said “But don’t call them ‘committed couples.’ Give ’em names, give ’em faces.”

“How’s his listening face?” Dunn asked Rosen.

Chad made as though he were listening to an opponent of same-sex marriage answer a question.

“Your listening face is a slightly unhappy face,” Dunn said. “I want to work on your smile. It’s not hard. It’s about lifting the corners of your mouth.”

Chad tried out a “listening” smile.

“Try to go bigger,” Rosen said.

“Really? Oh my God, it feels like I’m smiling so big.”

“Little more, bring it up,” she replied.

It took several more attempts until Rosen was satisfied. “That’s nice.”

“You need to send a nonverbal message that you are a nice guy,” Dunn explained. “You are in people’s living rooms. What you are saying to people is, you’re a guest in their house, and these are serious issues, but I’m a pleasant person. I’m the kind of person you want to have back.”

“Hey!” Adam said, urging the black SUV they had hired to pull over. “There are the Zarrillos!”

Jeff and Paul were still in the air, due to touch down later that afternoon, But there, standing on the street in front of the White House, were his mom and dad, along with Paul’s sister. The AFER team was headed over to the Supreme Court to do a walk-through of the area where Tuesday’s rally would be staged. Did they want to come along? Adam asked.

“This was supposed to happen,” Jeff’s mom said, climbing into the backseat as everyone scooted over to make room.

The war room team was on a high, riding a crush of positive news coverage.
The coalition’s surrogates had blanketed the Sunday talk shows that morning. Boies had not been able to resist repeating his prediction that, one way or another, the ruling wouldn’t be close, but otherwise had been pitch-perfect.

“David nailed it,” Adam said.

The American Academy of Pediatrics had released a report, just in time for the arguments. “Scientific evidence affirms that children have similar developmental and emotional needs and receive similar parenting whether they are raised by parents of the same or different genders,” it said. Gays and lesbians were raising nearly two million children in the United States, according to 2010 Census figures. “If a child has 2 living and capable parents who choose to create a permanent bond by way of civil marriage, it is in the best interests of their child(ren) that legal and social institutions allow and support them to do so,” the report concluded.

Former federal judge Michael McConnell, a standard-bearer in Federalist Society circles, had written an op-ed in the
Wall Street Journal
urging the Court to strike down DOMA on the grounds that Congress had unconstitutionally trampled on the states’ prerogative to define marriage. As to Prop 8, he wrote that the justices should allow marriages to resume in California but deny the decision any precedential value by finding Cooper’s clients had no standing, not the outcome the team wanted most but still better than nothing.

Support for same-sex marriage had reached an all-time high, according to the latest polling by ABC and the
Washington Post,
with 58 percent of those surveyed saying it should be legal. An overwhelming 81 percent of adults under thirty were supporters, as were a bare majority of Republicans coupled with Republican-leaning independents. Support among Catholics, an especially critical data point given the Court’s makeup and the fact that the U.S. Conference of Catholic Bishops had filed a brief asking the justices to overturn Prop 8, had jumped to 58 percent. And in one of the poll’s most important findings, it appeared that a majority of Americans would be comfortable with the Supreme Court deciding the issue once and for all; 64 percent of those polled said that the U.S. Constitution trumps state laws on marriage.

The way to change a business is to change the buying habits of its customers, and politics is not much different. Following the release of the poll and Portman’s announcement, a slew of politicians had made a figurative rush to
the altar. Every Democratic senator who had been in office long enough to have endorsed DOMA had come out against it. Days before, Hillary Rodham Clinton had become the latest high-profile Democrat to endorse the right of gays and lesbians to wed, recording a videotaped announcement that Chad had arranged after running into her on the Acela train that speeds between New York and Washington.
What had once seemed politically toxic was now considered not only safe but, at least for Democrats, necessary:
Politico,
a news Web site for political junkies, had declared that endorsement by Clinton, who had recently stepped down as secretary of state, was a sure sign that she was running for president in 2016. Four years earlier, it likely would have come to the opposite conclusion.