Forcing the Spring: Inside the Fight for Marriage Equality (50 page)

A just-released Republican National Committee “autopsy” on why Romney lost the election to Obama mentioned the party’s position on same-sex marriage four times. While it did not explicitly call for a platform change, it noted that “there is a generational difference within the conservative movement about the issues involving the treatment and rights of gays—and for many younger voters these issues are a gateway into whether the party is a place to be.” Its authors included Sally Bradshaw, a Florida strategist close to former governor Jeb Bush, and Ari Fleischer, former White House press secretary to George W. Bush. Mehlman had talked to them both. And that morning, top Bush strategist Karl Rove had said that he could imagine a pro–gay marriage 2016 GOP presidential nominee.

The Supreme Court was under renovation, and the façade was draped with a giant screen, a photographic replica of the building. But it was still majestic, and after the SUV that had carried them there dropped them out front, everyone just stood on the Court’s steps for several minutes under a gray sky. Flanking the group on either side of the steps were two marble statues atop fifty-ton marble blocks, a woman contemplating a blindfolded figure of Justice she holds in her hand, and a man holding a tablet of laws and a sheathed sword, representing the authority of law.

More than four years of theoretical planning, and here they finally were. In the group photo that they took, with the Court’s monumental bronze door in the background and its
EQUAL JUSTICE UNDER LAW
inscription overhead, everyone was smiling and leaning into one another, one big family.

Adam, Jones, Jeff’s parents Dominick and Linda Zarrillo, Paul’s sister Maria McGuire, and researcher Eric Kay were in the back row. Elizabeth Riel, who had taken over as AFER’s senior communications strategist, stood next to Shumway Marshall, the team’s online projects coordinator, and Manny Rivera, who handled press. Fund-raiser Justin Mikita, who was soon to be married to
Modern Family
(and
8
) star Jesse Tyler Ferguson, hammed it up with Melissa Gibbs, who handled the team’s logistics and advance needs. Videographer Matt Baume and intern Hannah Faust stood on either side of Evan Sippel, the one staffer other than Adam who went all the way back to the trial. He had left in the middle of the case to attend law school, but had returned on a volunteer basis to help the team out.

“Listen up,” Adam said, finally breaking the trance. “If you guys could focus!”

Kevin Nix, a member of Chad’s staff who was coordinating the rally events, walked them through what would be happening on the opening day of arguments. Nothing about the logistics had been left to chance. The lawyers did not want an out-of-control stampede, so a group called United for Marriage had been set up to channel grassroots energy. Cleve Jones had been enlisted to call on people to march in their hometowns, and more than 175 events had been organized in all fifty states. The Human Rights Campaign was also urging people to change their Facebook profile photos to a new marriage equality logo it had developed: a pink equals sign over a red background, poll-tested as the colors of love.

At the same time, everyone understood they had to give supporters a place to congregate in Washington, D.C.; the National Organization for Marriage was busing in thousands of opponents. Chad had gone over every detail of the rally in the nation’s capital in multiple briefings: American flags? Check: Three thousand had been ordered, along with a thousand red
IT’S TIME FOR MARRIAGE
T-shirts. Volunteers would hand palm cards to supporters, with suggested talking points to use if they were interviewed by reporters, directions to the nearest public bathrooms, and a request that they be respectful to the other side. Others trained in crowd deescalation techniques would be on deck to ensure that nobody got out of hand.

The National Organization for Marriage’s base of operations would be
blocks away; the organization had obtained a permit for an area near the Natural History Museum. Chad, knowing that the television crews would set up just outside the Court, wanted to be right out front, with a small stage for the coalition’s speakers and marriage equality supporters filling the 252-foot wide oval plaza. There was just one problem: That space was first-come, first-served; there was no way to reserve it with a permit. The solution had been to enlist volunteers from Occupy Wall Street to save the area for them. The Occupy Wall Street protest movement had drawn worldwide attention in 2011 when it camped out in a park in lower Manhattan near the New York Stock Exchange to protest income inequality, resisting eviction efforts for nearly two months.

Chad had not been wild about the idea, but, as one staffer put it, “Nobody can hold space like they do.” He had acquiesced after being assured that they would not identify themselves. They were camped out in a circle of folding chairs, bundled up against the cold, when the SUV pulled up. Nearby, line standers hired by Adam were first in a line that had already begun to form for the limited number of seats the Court reserves for the public. Only the plaintiffs themselves were guaranteed a seat inside; the Reiners and the rest of the board, along with the plaintiffs’ families, all had to nab one of the public tickets that would be handed out on the morning of the argument.

Speakers would keep the crowd entertained before and during the arguments. They included civil rights leaders, prominent Republicans, the NFL football players who had campaigned for marriage equality during the election, and regular families talking about what the ability to marry would mean to them. A thousand signs with slogans like
FREEDOM MEANS FREEDOM FOR EVERYONE
and
MARRIAGE IS LOVE COMMITMENT AND FAMILY
had been printed for supporters to hold, visible to any of the justices if they happened to look out their windows.

The pastor of the Westboro Baptist Church, a virulently antigay church out of Florida with aggressive picketing techniques, would also be holding a protest outside the Court. “Fag Marriage Dooms Nations. WBC to Picket” read a faxed press release announcing his plan and predicting that a pro-gay ruling “will usher in your final doom!” Chad was happy to have the church be the face of their opponents. “Make sure you give reporters a copy of this,” he had said, pointing to the fax during one briefing. “I want to help him get his message out.”

A light snow blanketed the city overnight, and as the bus passed by the National Mall that stretches from the Lincoln Memorial to the Capitol the following morning, the tour guide whom Adam had hired for the day pointed out the place on the frozen lawn, about the size of a football field, where the AIDS quilt was first laid out in 1987, commemorating the lives of those lost to the pandemic. By now, it had grown to forty-eight thousand panels and weighed fifty-four tons.

“That’s Cleve!” Sandy exclaimed, though Jones, the quilt’s creator, was back at his hotel resting.

“Keep us calm,” Kris had begged on one phone call before they arrived. “Make sure there are moments when we can take a breath.”

This tour, of some of Washington’s civil rights landmarks, was Adam’s answer. Chad, Lance Black, all four plaintiffs, Kris’s two boys, Jeff’s parents, and Paul’s sister had all piled on a bus shortly after 9
A.M
. The plan was to go to the National Archives, which housed the Constitution, the Declaration of Independence, and the Bill of Rights, then on to President Abraham Lincoln’s cottage, where he developed the Emancipation Proclamation during the Civil War.

Chad, who had an interview later that afternoon on CNN, checked his e-mail for news. In the last twenty-four hours, two swing-state Democrats, Senator Claire McCaskill of Missouri and Senator Mark Warner of Virginia, had jumped on the bandwagon and announced their support for same-sex marriage. Chris Cillizza, a popular blogger for the
Washington Post,
wrote that “no matter how the high court rules . . . one thing is already clear: The political debate over gay marriage is over.” The dustup du jour was an
L.A. Times
story reporting that Chief Justice Roberts’s lesbian cousin, who lived in California and wanted to marry her partner, would be attending the arguments the following day. Per the lawyers’ instructions, talking points had been sent out warning surrogates not to comment on the development, and Jeff had been asked to take the story down from his Facebook page. But, Hilary Rosen had e-mailed, “we are allowed to be secretly thrilled.”

Elizabeth Riel gave the plaintiffs a rundown of what to expect when they arrived at the National Archives. Several of the networks and a couple of still
photographers had been invited to meet them at the Archives. There would be no Q&A, but everyone needed to hold on the stairs near the front door so the crews could get their shot. They would then be led around to a side door; the front was actually not in use.

For the most part, the plaintiffs had gotten used to such stagecraft, but every once in a while the oddity of it all still struck them. “Don’t look,” Kris had said with a grimace, emerging one day for an interview with CNN wearing lipstick and mascara. “I have makeup on and they made me take off my glasses.” She’d shrugged. “I guess to look girly.”

Paul, over dinner one night at the Reiners’, put it this way. “It’s like, there’s your private life, and then there’s your private life that’s packaged for public view.”

“I just keep projecting out to tomorrow,” Kris said. “It’s kind of like”—she stopped, searching for the right phrase—“like we’re all just jumping off. Here. We. Go.”

Stepping out into the cold, the two couples hit their mark as the cameras rolled and clicked.
PLAINTIFFS INSPECT U.S. CONSTITUTION AHEAD OF GAY MARRIAGE CASE
, read one headline. But what started off as a photo op and an opportunity to keep everyone occupied became something deeply meaningful once inside. Forty-eight years earlier to the day, Martin Luther King Jr., after completing his march from Selma to Montgomery, had given one of his most famous speeches. “How long will justice be crucified, and truth bear it? I come to say to you this afternoon, however difficult the moment, however frustrating the hour, it will not be long, because truth crushed to earth will rise again. How long? Not long, because no lie can live forever.” The timing of the archives tour was completely coincidental, but it felt like an omen.

The group wandered from room to room, somberly trying to take it all in. The Archives’ collection of important governmental records runs to about twelve billion pieces of paper, including all documents associated with Supreme Court cases. In the “Courting Freedom” room, warrants for fugitive slaves were displayed under glass. Chad paused for a long moment at a mural depicting a courtroom scene, under the words
WHEN HAVING THE MOST VOTES IS NOT ENOUGH
.

“Your records will be here in twenty to twenty-five years,” Jesika Jennings, an Archives employee, told the plaintiffs, adding that she was honored to show
them around. “It’s like having the opportunity to give Rosa Parks a tour of the Declaration and the Constitution.”

Later that night, when everyone sat down in a cozy private room at the Jefferson Hotel, Chad gave a toast. The gang was all there: The Reiners and Ken Mehlman had joined them for dinner, as had David and Mary Boies. Olson was still working, polishing, absorbing.

No one was in celebration mode yet, Chad said when he stood. But they had arrived at the place where they had set out to be.

“Folks told us to slow down. But we gave hope to those thousands and thousands of Californians just by standing up for them,” he said. “This case—it’s gone from being a case of a small group of people to being everyone’s case. This case is now America’s case, and it was birthed by everyone in this room.

“One more chapter. Tomorrow. And may we all have the best of luck. I love you all.”

D
id you sleep last night?,” Jeff asked his mom.

It was a little after 6
A.M
., and the two couples and their families were gathering in the lobby of the Palomar Hotel, where everyone was staying. Outside, a bus was waiting to take them to Chad’s apartment.

“No. You know me.”

He checked his phone. Facebook was a sea of red; the campaign asking people to replace their profile photos with the red Human Rights Campaign marriage equality logo had gone viral; more than 2.77 million users in the United States alone had joined in, plus tens of thousands more in Canada, the United Kingdom, Germany, and even far-off Australia. On Twitter, celebrities were cheering the plaintiffs on. Beyoncé, a mega R&B star who was married to the rapper Jay-Z, posted a scanned handwritten note on a red sheet of paper to her account on the photo-sharing site Instagram: “If you like it you should be able to put a ring on it,” she wrote, a twist on the lyrics to her hit song “Single Ladies,” along with the hashtag “#wewillunite4marriageequality.”

Paul let out big breath.

“So this is the moment,” Jeff’s mom said.

“This is it,” he said.

“We’ve all been waiting for,” she finished. She smiled. “You both look handsome.”

Kris and Sandy were the last to arrive in the lobby. They had both tossed
and turned all night. The AFER staffers began herding everyone outside, into the dark and onto the bus.

“Let’s go change the world, boys,” Paul’s sister, Maria, said.

“This isn’t weird,” Sandy said as the bus pulled away from the curb.

Everyone laughed.

“Good morning, D.C.,” she continued, looking out the window. “Sleeping in? Enjoying yourself?”

The bus dropped them in an alley that led to the back door of Chad’s apartment, so the television crews stationed out front would not swarm them. Inside, Kristina, who had taken the day off of work at the White House to attend the arguments, was sitting on Chad’s couch, going over his press statement, like the old days.

Neither had slept much. Kristina had kept waking up in a panic, afraid that she had overslept. Chad, Adam, and Matt McGill had e-mailed one another well into the early morning hours. “Who’s still awake?” went the joke.

Chad had sent Olson an e-mail. “As you know, the world will be watching. [The Court] is already surrounded by media from around the globe. BUT behind all that there is some kid, alone in his room in America . . . who will hear the message that he is equal, and that he too can someday grow up with the same hopes and dreams as his straight brothers and sisters,” he wrote. “You are my hero.”

The AFER staff had arranged for coffee and breakfast snacks, which were laid out on the kitchen counter. The apartment was lovely, with high ceilings, but it had an unlived-in feel. Chad still hadn’t gotten around to unpacking a lot of boxes from the move out from Los Angeles, or even purchased a dresser. The guest room consisted of a mattress on the floor.

Paul peeked into his refrigerator and cracked up. “Yup, it’s completely empty,” he told Jeff. Turning to Chad, he added, “We had a big joke about that.”

“You guys want to watch a movie?” Chad said facetiously. “I’ve got some sweatpants. Sweatpants and hoodies.”

Lance Black sent a photo from outside the Supreme Court. He and Cleve Jones, the Reiners, Bruce Cohen, and Ken Mehlman had taken the place of the
paid line standers at around 5:30
A.M
. and were now shivering in the cold, waiting outside the Court to go in.

Jerome texted love to the entire group from Boston, where he was now living. “I’m with you in my heart,” Chad’s mom wrote in from Arkansas. Ben Jealous, the president of the NAACP, could not be in Washington, D.C., that day, but had sent a note to Chad that he would forever treasure. “Sending you prayers and much success this week,” it said. “Yours in the struggle.”

Chad parted the blinds and looked out at the news crews that were waiting for them to emerge. He had taped a giant American flag to his front door. “It never ends,” Kristina said with a laugh, about Chad’s patriotic decorating flair. “We can never get enough.”

Paul read over the simple statement he planned to give. “We have faith in our country’s judicial system.”

“It kind of feels like we’re all just standing in that town house in San Francisco,” Chad said, recalling the opening day of trial. “How far we’ve all come.”

Jeff and Kristina started to cry.

But Chad felt almost eerily calm. He had done everything he possibly could to prepare the political ground for a Supreme Court victory. That morning’s
Washington Post
editorial urged “liberty and justice for all,” while the
New York Times
’s called for
A 50-STATE RULING
.

Now all the pressure was on one man: Olson.

Olson was ensconced at the counsel table in front of the raised mahogany bench just to the right of where the chief justice would sit when the Court was called into session, reading over notes. Across the way sat Cooper. A white quill had been placed in front of both lawyers, a tradition that went back to the Court’s earliest sessions.

Both men had their own traditions. For years, before every oral argument, Olson had been placing a laminated saint card into his pocket that his late wife, Barbara, had given him on the morning that he argued the
Bush v. Gore
case, a prayer to Saint Michael: “Do not forsake me in my time of struggle with the powers of evil.” The saint is known as the “the Archangel,” but Olson liked to call him “the Avenger.” Nestled next to that was a gold ladybug pin that Lady
had given him after they married. Cooper, across the way, sat twirling his pen through his fingers. He and his entire team wore their good-luck cuff links, as they always did. They were engraved with a laurel leaf and sword, a visual representation of the firms’s motto: victory or death.

Only four seats are available at each counsel table. Boutrous, Boies, and McGill sat with Olson. The Supreme Court also reserves a certain number of seats for lawyers who are members of its bar. When they heard that a line for those seats was starting to form the previous afternoon, Enrique Monagas had dashed down to the Court. He and Josh Lipshutz, the former Scalia clerk and newest member of the team, had spent a snowy, blustery night waiting in temperatures that dropped down to the thirties, but it was worth it to be sitting here now. His husband, Jason, was just outside, at the rally on the steps with their daughter, Elisa.

“
Being here right now, I’m really nervous,” he had said after one of the moots. “Not over how Ted is going to do but—it’s very real right now. Arguments we thought were bullshit, we are looking at with new eyes, thinking, does this argument have legs?”

With the help of the former Supreme Court clerks who worked for them, Terry Stewart and her boss, San Francisco city attorney Dennis Herrera, had snagged seats reserved for guests of the justices. They were seated near Ron Prentice, the ProtectMarriage.com campaign’s executive director. Stewart was not without anxiety—“That would take the ability to read Kennedy’s mind”—but she was cautiously optimistic. Olson, she thought, had been at the very top of his game at the final moot court: “Fantastic!” she’d gushed.

Paul Cappuccio, Olson’s friend, had been one of the grillers. The only question that the former Kennedy/Scalia clerk had managed to trip Olson up on was when he asked whether the Court should decline to reach the merits of the Proposition 8 case and instead dismiss the case on standing grounds. Breaking role for a moment, Olson had asked whether there any way to answer that other than a flat-out yes—potentially yielding a technical, California-only victory that didn’t equal Olson’s ambitions. “No,” Cappuccio had told him. But whatever the Court decided, he recalled telling Olson, the country was in a profoundly different place than it had been when the lawsuit was filed.

“
You’ve already won,” Cappuccio said, as they walked to lunch after the moot court session. “The real lasting impact of this case is that it changed the
nature of the conversation, which, by the way, had you not done, your case never would have stood a chance at the Supreme Court.”

Paul Smith, the lawyer who had argued and won the
Lawrence
case but declined Olson’s invitation to join the Proposition 8 case, shared that assessment. He had come to court today to hear the arguments, no longer worried that the justices would deal a blow to the community the way they had in the
Bowers
case, when they upheld laws criminalizing sodomy. The country had moved too far, too fast, for the Court to want to do something so potentially legacy tarnishing, he thought, a shift he credited in large part to Olson and the Proposition 8 case. Olson might have wanted for the case to move more quickly, but he, for one, was glad it had not.

“
Look at the difference three years has made,” he said. “They weren’t solely responsible for the changes, but anyone who says their contribution wasn’t hugely significant is wrong. That trial was a remarkable PR event.”

The bus that had ferried the plaintiffs to the Court had been forced to drop them about a block away; security measures prevented it from stopping out front. An old man had caught sight of Kris and Sandy holding hands as they walked to the Court. “Shame,” he had hissed.

“Stay close, stay tight,” Chad had said, hustling them along. They approached the building from the side, and when the crowd below spotted them on the steps, they began to cheer. Chad’s plan to hold the space in front had worked: It was filled with marriage equality supporters. Sandy’s hands flew to either side of her face as she looked down at everyone. Kris clasped hers together, as though in prayer, as a tear slipped below her thick brown-framed eyeglasses. “Good luck!” someone shouted as the line began to move.

The classic Corinthian architecture made the Court chamber feel like a temple. The soaring forty-four-foot-high elaborate coffered ceiling was painted red and pale blue, with an intricately carved ivory flower design, and supported by twenty-four marble columns. The floor was carpeted red and bordered in Italian and African marble.

The Court seats only four hundred people, and spectators are escorted into
the room in small groups. The system is a rigid one, and Sandy and Kris wound up split off from the rest of the group. They were seated behind President Obama’s adviser, Valerie Jarrett, while everyone else, including the twins, was seated on the other side of the room.

“It was incredibly stressful for Paul and Jeff and Chad,” Kristina said. “They’ve all formed such a unit, they didn’t want to be separated. It was good in a way, though, because it was nice to focus on something inconsequential.”

Michele Reiner almost did not make it in at all; she had made a stop at the ladies’ room while the rest of the board was ushered into the room, and had to beg to take her seat. Lance Black and Adam craned their necks, looking around. The last time Chad and Rob Reiner had come to the Supreme Court, they had been out on the street, on the night that the
Bush v. Gore
decision was handed down. “
Both times,” Rob joked to Chad, “because of Ted Olson.”