Forcing the Spring: Inside the Fight for Marriage Equality (5 page)

Kristina had read the memo and been comforted, as had Chad. During the Proposition 8 campaign, she had been appalled at what she saw as the political ineptitude and dysfunction of the gay rights community. It was filled with impassioned activists, but what it needed, she believed, was skilled political operators like Chad. She was sure it was his calling to become a movement leader, even if he wasn’t.

“Take the emotion out of it,” she said. “We have to forget about everything else and focus on one question: Do we believe in our strategy?”

Chad allowed that he still did.

“
Then if our reasons are sound,” she said, “and we didn’t buy any of their arguments, we shouldn’t let it affect what we do.”

Now all they needed were some plaintiffs.

F
or months, Kristina had been searching for plaintiffs who met Olson’s criteria. To be safe, Olson wanted six couples. That way, if one couple split, or someone died, or their opponents dug up something about the background of another that could surprise them at trial, they had a fallback.

She and Chad had launched what they jokingly referred to as a “major casting call” at the beginning of the year. But it had proven far harder than they thought, both because they had been forced to operate in secrecy to prevent their plans from leaking and because all the couples they knew in the kind of committed relationships Olson wanted had married during the window before Proposition 8 was passed.

So the two political consultants set up an elaborate ruse, putting out the word that they were looking for couples to take part in a public education campaign on same-sex marriage. Kristina then funneled applicants’ names to an opposition researcher she had hired to dig into their pasts. Some fell out in that process. Those who survived were invited to the firm’s office and grilled by Kristina or, if she was tied up, Chad: Are there any embarrassing photos or YouTube videos we need to know about? What is your health status? Do you have a monogamous relationship, and have you ever cheated?

Only if couples made it through that round of vetting would Kristina disclose the real purpose behind the interview and have them meet the lawyers.
But of the few who did, several decided that they did not want to put themselves through the publicity that a lawsuit would engender.

By the end of April, she was running out of time. Any day now, the California Supreme Court was expected to rule on a lawsuit that argued that technically, Proposition 8 had revised, rather than amended, the California constitution, and as such was invalid; a quirk in California law gives voters the right to amend the state constitution, but requires a vote of the legislature to revise it. Few had any hope that the challenge would succeed.

Assuming it did not, same-sex marriage supporters would have no further means of redress in the state’s courts. At that point, Olson worried, someone was bound to challenge the initiative in federal court; however much the established gay legal groups protested, there was simply no way to stop it.

He wanted their lawsuit to be
the
challenge to Proposition 8. “The worst-case scenario is that the first case to reach the Supreme Court is an ill-conceived suit brought by inexperienced lawyers,” he had written in the “Time Is Now” memo for Chad. “It is imperative that the Supreme Court view the issue through the lens of the
right
case.”

The only way to ensure that was to be the first to file. Yet Kristina had yet to identify a single couple willing to stand as plaintiffs, much less the six that Olson wanted.

Both she and Chad felt it was important to find some couples of color. They intended to use the lawsuit, and the attention it would draw, as a vehicle to mount a national public education campaign on same-sex marriage. Proposition 8 had passed in part because the campaign against it had done little to try to reach out to California’s large African American, Asian, and Latino minority groups, and they did not want to repeat that mistake.

They could talk all they wanted about the similarities between the civil rights battles of the 1960s and the fight gays and lesbians were waging for equality today, but the truth was that 70 percent of black voters, who turned out in record numbers to vote for President Obama, had supported Proposition 8, and more than half of Latino and Asian voters had too.

So on the afternoon that she learned that her dream couple—a Latina lesbian and her white partner who had been together forever—had decided to back out, she walked down the hall to Chad’s office, plunked down in one of his chrome-and-black-leather chairs, and just shook her head.

“What are we going to do?” she said.

As it happened, Chad had just gotten off the phone with Kris Perry, the head of the statewide early education office funded by the cigarette tax increase they had passed for the Reiners. She and her partner, Sandy, both in their forties, had been together for ten years.

“
What about Kris?” he asked.

“I think she’s married,” Kristina said.

“I don’t know about that.”

Kristina perked up. “Call her!”

Chad picked up the phone. It turned out that Kris had indeed tried to marry Sandy, when San Francisco first began issuing marriage licenses, but theirs was among the licenses invalidated when the California Supreme Court ruled that the mayor had no right to disobey a state law whose constitutionality the courts had yet to consider.

Chad knew that the couple wasn’t perfect. Sandy, an IT director for Alameda County, had been married before, to a man, a complicating though not insurmountable factor in a case that rested in part on convincing the court that sexual orientation was not a choice. Plus, the two women had four teenage boys, two conceived by Sandy and her ex-husband, and two Kris had conceived in vitro with her former partner.

Olson had wanted to avoid couples with children. Opponents of same-sex marriage used children as a hot-button issue, maintaining that they do better when raised by a mother and father, and he worried it could introduce a whole complicated set of parenting issues into the mix that were best avoided.

On the other hand, Chad and Kristina really knew the women; there would be no surprises with these two. They were warm and quick-witted, and as the head of a state agency, Kris knew how to weather a political storm, an experience that Chad felt would serve them well in the high-pressure months to come.

At this late date, they would do, Chad decided, and he filled Kris in on the plan. Warning her that it would be a huge commitment, he said, “Maybe you should sleep on it.”

But Kris was so excited that she immediately phoned Sandy at work. “Come home right now,” she said. “I want to tell you about a conversation I just had.”

A few weeks later, a similar discussion took place at Theresa’s Family Restaurant in Burbank, where Jeff Zarrillo lived with his partner, Paul Katami, and their two French bulldogs in a small but tasteful California bungalow. The two had met eight years earlier in an online dating success story.

Paul, thirty-seven, was an intense former actor turned personal trainer who grew up in San Francisco. Jeff, a year younger, was a stocky self-described Jersey boy and Dallas Cowboys fan who hadn’t quite managed to lose the accent in his years out west. He had worked his way up from a ticket taker at a Los Angeles movie theater to its general manager.

Friends had urged them to get married when the window in California opened. A few years earlier, Jeff had gotten down on his knee and proposed, and the two had even exchanged rings. But with opponents of gay marriage already gearing up to put Proposition 8 on the ballot, they were reluctant to put themselves and their family through the emotion of a wedding that could later be invalidated at the polls. Instead, they had decided to wait to see what California’s voters did.

During the Proposition 8 campaign, they had stayed on the sidelines while their neighbors put up
YES ON PROP 8
lawn signs; one had even quoted the Bible to them and declared their relationship sinful. But a television ad urging voters to pass the initiative so infuriated the couple that they decided they had to do something. Over images of dark, ominous skies, the ad suggested that gay marriage was a threat to freedom, faith, and children. “There’s a storm gathering,” one person featured in the ad states. “The clouds are dark and the winds are strong,” says another. “And I am afraid,” says a third.

“
This is literally making me nauseous,” Paul told Jeff.

Drawing on Paul’s skill at making exercise videos, they gathered some friends and shot a homemade public service announcement. “We will weather this storm,” the video said, but opponents of same-sex marriage were “using fear to cloud the truth.”

One of the people in the video happened to be Chad and Kristina’s realtor. Knowing only that they were interested in finding couples for a public service campaign, he made the introduction. Kristina and Chad met with the couple multiple times. Paul and Jeff were shocked by how much the two consultants
knew about them; Chad even asked about Paul’s previous roles in a few small art-house movies. After reassuring themselves that the films contained no nudity or other potentially embarrassing scenes, they finally filled the couple in on their plan to file a lawsuit.

Afterward, at the diner, the couple talked it over with Jeff’s parents, who were visiting from New Jersey. They had been married for forty-one years, and they knew what it would mean to their son. “Just as long as you are safe,” Jeff’s mother said, grabbing their hands.

The consensus of the legal team was that the case would likely be decided fairly quickly; while no federal case like this one had ever been filed, all but one of the cases that had come before state courts had been decided based on legal motions alone, with no need for a trial. Chad and Kristina told the plaintiffs they would likely never have to testify.

By lunch’s end, the two men had made up their minds. They weren’t cops or bookstore owners. And they, like Sandy and Kris, were white. But they were willing.

The movie version of the story of how Olson decided upon his choice of Democratic co-counsel goes like this: Early on, in a flash of genius, he tells Rob Reiner he has the perfect candidate in mind—David Boies, a genial but ruthless trial lawyer and, in the
Bush v. Gore
election dispute, the man who represented Gore.

And indeed, that is the way the two men tell it. But in fact, Boies wasn’t Olson’s first, or even second, choice. Initially, Olson had wanted a Supreme Court specialist like himself, preferably someone the gay community knew and trusted.

The first person Olson approached was Paul Smith, an openly gay, savvy Supreme Court advocate, and the man who won
Lawrence v. Texas
. He was at his desk when Olson phoned, saying he wanted to talk to him in strict confidence.
Smith, who had recently been asked to join the board of Lambda Legal, had to promise not to share what Olson was about to say with anyone in the movement.

Before filing the
Lawrence
case, Smith had analyzed what he thought was
possible at the Supreme Court. Both Justice Kennedy and then-justice Sandra Day O’Connor had voted the right way in the
Romer
case. That gave him the courage to go forward.

But he hadn’t argued that gays and lesbians ought to be considered a “suspect” or “quasi-suspect” class deserving of heightened scrutiny, as Olson was doing. It was, Smith had felt, too big an ask. The Supreme Court was clearly reluctant to create new suspect classes—it had last done so in the 1970s. And, perhaps more important, the justices liked to move incrementally. If heightened scrutiny applied, not only would the sodomy laws at issue in
Lawrence
likely fail to meet constitutional muster, but so too would policies such as Don’t Ask, Don’t Tell, banning gays and lesbians from openly serving in the military.

In the end the Court had wound up striking down sodomy laws in
Lawrence
without reaching the question of what standard of scrutiny should be applied to gays and lesbians. In the wake of that victory, Smith had entertained the idea of bringing a federal challenge to same-sex marriage bans. But, he told Olson, he ultimately decided against it after talking to a number of former Supreme Court clerks. There was a big difference in Kennedy’s mind, they had told him, between telling a state it had no right to criminalize private sexual relationships and telling all fifty that there was no rational reason to refuse to legally sanction those relationships.

Olson disagreed, telling Smith he believed he could get Kennedy’s vote. But the time to act was now, while Justice Stevens was still on the Court. Stevens, the leading member of the Court’s liberal wing, was known to stop by Kennedy’s chamber and chew over cases, a judicial courtship that Olson believed had given him a fair amount of influence with the Court’s most unpredictable swing voter.