Forcing the Spring: Inside the Fight for Marriage Equality (51 page)

Shortly before arguments were due to begin, the man himself wandered over to say hello. Olson hugged both Reiners. He had been up for hours, and was, Boutrous said, in a “great place.” At 5:31 that morning, he had returned Chad’s e-mail, thanking him for his friendship and partnership. “I’m enormously gratified, and humbled, by our journey and where we are today,” he’d said. But now he was at an uncustomary loss for words.

“Well,” he said.

Olson and the other lawyers had warned everyone not to read too much into the arguments. It is possible to pick up on a general gestalt, but vote counting is tricky. Sometimes a justice who appears to be giving a lawyer a hard time, for instance, is actually helping to shore up the argument or address what he or she knows to be a colleague’s point of concern. But as the minute hand of the clock above the bench ticked toward 10
A.M
., it was impossible not to think that they would at least get an inkling of what the only nine people who had ever really mattered to their case actually thought, and to worry about what that might be.

Cleve Jones took out a square cloth and mopped his forehead. Chad fiddled with the pen and pad he had brought with him to take notes. The room was now hushed, and when the marshal called the Court into session, both men startled.

“Oyez! Oyez! Oyez! All persons with business before the Honorable, the Supreme Court of the United States are admonished to draw near and give
their attention, for the Court is now sitting. God save the United States, and this Honorable Court!”

“It was over,” Kristina would say afterward, “in an instant—an instant.”

Cooper had gone first, and there were times, preserved in black chicken-scratch on the notes Chad kept passing to Kristina, when it seemed hard to imagine that the justices could deny them. Cooper’s answer to one question, about whether, outside the context of marriage, he could envision any other rational basis for the state to use sexual orientation as a factor for denying gays and lesbians benefits or imposing burdens on them, had stunned Chad: “No, Your Honor, I cannot.”

“In more than 50% of states it’s legal to fire/hire,” Chad wrote down on his pad, a reference to the fact that because there were no federal employment protections in place, employers in pockets across America could legally discriminate on the basis of sexual orientation.

“
That is an enormous concession,” Boies thought, “with implications for both DOMA and our case.”

But at other moments, it appeared that everything that Chad had worked so hard to do had been for naught. The country might have undergone a seismic shift in its embrace of same-sex marriage, but if the justices were aware of it, they did not let on. They talked in fusty terms befitting a Court that still had fallout shelter signs painted on its walls. Even liberal justices like Sotomayor, a New Yorker who had lived in the West Village just blocks from the Stonewall Inn, kept referring to gays and lesbians as “homosexuals.” “Newer than cell phones or the Internet,” was how Justice Alito described same-sex marriage. Chief Justice Roberts dismissed the case Olson, Chad, and the rest of the team had worked so hard to make on why the term “marriage” mattered this way:

“If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend,’ but it changes the definition of what it means to be a friend.”

“I just felt at times like they hadn’t seen anything,” Chad said afterward. “It was a little disheartening.”

The pivotal Justice Kennedy, meanwhile, seemed to be having a debate with himself. Kristina grabbed Chad’s arm when Kennedy spoke of the “legal injury” caused by Proposition 8 to the “forty thousand children” in California who lived with same-sex parents. “The voice of those children is important in this case, don’t you think?” he asked Cooper.

At another point, he asked whether “this can be treated as a gender-based classification,” an indication that he might be willing to apply heightened scrutiny not by declaring gays and lesbians a new suspect class, but by finding that same-sex marriage bans discriminated on the basis of gender.

But then he tacked in the different direction. “There’s substance to the point that sociological information is new,” he told Cooper. “We have five years of information to weigh against two thousand years of history or more.”

“He’s expressing a Burkean concern,” Cooper recalled thinking. Maybe all that talk at trial about Edmund Burke, and the political philosopher’s warning that “infinite caution” should be used when mucking about with age-old institutions, or the amicus brief on the perils of using sociological studies to decide cases, had penetrated.

“The problem,” Kennedy said to Olson, “the problem with the case is what you’re really asking, particularly because of the sociological evidence you cite, [is] for us to go into uncharted waters, and you can play with that metaphor—there is a wonderful destination [or] it is a cliff,” he said getting a little tangled up. “Whatever that was,” he added.

Cite the evidence from trial, Terry Stewart wanted to say to Olson. Tell Justice Kennedy about the expert testimony, the studies they had entered into evidence to prove that heterosexual marriage would not be harmed if gays and lesbians were allowed to wed. Or point to the brand-new ten-page American Society of Pediatrics report, the one that coalition surrogates had been talking about on television all week, declaring that scientific evidence showed no cause-and-effect relationship between parents’ sexual orientation and children’s well-being.

Ted Boutrous, for his part, wanted hold up a sign:
READ OUR BRIEF!
it would have instructed Kennedy.
LOOK AT FOOTNOTE 6
!

The footnote was one of Boutrous’s proudest contributions to the brief. He had noticed that Cooper’s brief, in an effort to buttress his argument that social scientists were divided on the question of same-sex marriage, repeatedly cited
the work of people who had never appeared at the trial. One was a sociologist named Kingsley Davis, who had died in 1997. “
Bring me the head of Kingsley Davis!” he’d told members of the team, and the footnote reflected their research.

“Rather than rely on witnesses at trial, who would have been exposed to cross-examination, [Proposition 8’s] Proponents now rely on historical writings by dozens of philosophers, sociologists and political scientists—from Locke to Blackstone, Montesquieu to Kingsley Davis (a sociologist who advocated ‘zero population growth’ while fathering four children with three different women, including a son at age 79)—to support their view that marriage is suited only to opposite sex couples,” it read. “None of those authorities, however—not one—expresses an opinion about same-sex marriage or argues that allowing gay men and lesbians to marry would harm the institution.”

Olson, however, chose to emphasize broad principles over specific studies or footnotes. “There was a twelve-day trial, the judge insisted on evidence on all of these questions,” he replied, without going into detail. “You suggested that this was uncharted waters. It was uncharted waters when this Court, in 1967, in the
Loving
decision, said that interracial—prohibitions on interracial marriages, which still existed in sixteen states, were unconstitutional.”

Kennedy seemed unconvinced. At times, leaning back in his chair, he looked visibly pained. He expressed little willingness to go along with the more incremental options before him. Dismissing the case on the basis that Cooper’s clients lacked standing to appeal Judge Walker’s order, the California-born Kennedy declared, would be tantamount to giving the governor and others “a one-way ratchet” that they could use to “thwart” California’s citizens. And relying on the reasoning that Judge Reinhardt had used to limit the impact of the Ninth Circuit’s ruling to California seemed to Kennedy “a very odd rationale upon which to sustain this opinion.”

But he also, in a comment that made all the lawyers in the room pay attention, indicated that he felt it might be too early for the Court to go all in. He would, in a speech in which he talked about same-sex marriage several months later, tell students at the University of California that “all of us were surprised at the speed of the thing.”

Now, all he said was this: “I just wonder if—if the case was properly granted.”

It seemed clear, in that moment, to lawyers on both sides, that it had likely
been the four conservatives who had voted to grant cert. No one could know for sure, but it sounded like Justice Kennedy had not wanted to hear this case, at least not at this time. That, in turn, could explain why the liberals on the Court all seemed intent on finding a way to avoid deciding the constitutionality of Proposition 8.

On occasion, the Court dismisses a case, effectively deciding that it had been a mistake to grant cert in the first place. In Supreme Court lexicon, it’s called a “DIG,” for dismiss as improvidently granted. And, like Justice Kennedy, Justice Sotomayor seemed eager to DIG this one.

“If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” she asked Cooper.

The question might have stemmed from a desire by Sotomayor to protect the Ninth Circuit’s ruling from a conservative majority she feared now might be ready to uphold laws like Prop 8 banning same-sex marriage. But there was no way to know as the questions kept flying.

“Because, Your Honor—”

She interrupted. “We let issues perk, and so we let racial segregation perk for fifty years from 1898 to 1954.”

“Your Honor, it is hard to—” Cooper managed, before she jumped in again.

“And now we are talking about, at most, four years.”

Justice Scalia jumped into the fray.

It takes just four votes to grant cert. A majority of five justices may do whatever they like, including deciding to dismiss a case that four justices had believed should be heard.
But as a matter of form and comity, the justices who lose the cert battle generally just decide the case. If that courtesy was followed in this case, one of the justices who voted to hear the case would have to change his or her mind and agree to DIG the case, which Justice Scalia seemed to intimate was unlikely to happen.

“It’s too late for that, too late for that now, isn’t it?” he said, a note of triumph in his voice. “I mean, we granted cert.” Then, in what some saw as a direct slap at Kennedy, he appeared to reference Kennedy’s comment, just before voting to uphold
Roe v. Wade,
about feeling like Caesar crossing the Rubicon.

“We have crossed that river,” Scalia declared.

Sitting there, Boies could not help but think it was not going as planned.
“
We were both surprised about the DIG suggestion,” he said afterward. “Justice Kennedy seemed unhappy—on the one hand this, on the other hand that. The general sense, and it wasn’t just Kennedy, the general discomfort around this case surprised me a little bit.”

At the lectern, Cooper tried his best to protest to both Sotomayor and Kennedy. A DIG, undoing the Court’s decision to grant cert, would effectively bless the Ninth Circuit’s ruling that, as Cooper put it, “at least in the state of California, the people have no authority to step back, hit the pause button, and allow the experiments taking place in this country to further mature.”

Of course, there was another route for the justices to sidestep the case: they could find that Cooper’s clients had no standing to appeal Judge Walker’s decision, a route that Justice Ginsburg seemed especially eager to embrace. “Have we ever granted standing to proponents of ballot initiative?” she demanded of Cooper. “The concern is, certainly the proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it’s passed, they have no proprietary interest in it. It’s law for them just as it is for everyone else. So how are they distinguishable from the California citizenry in general?”

She was egged on by Roberts, the Court’s standing hawk. When Olson tried to open by saying that Proposition 8 was really about “stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second rate,” Roberts cut him off. “Perhaps you could address your jurisdictional argument.”

Listening, especially to the Court’s liberals, Terry Stewart felt heartsick, as the hope she had started to harbor ran up against the justices’ words. “I’m not in a good space,” she told her wife, Carole, afterward.

“They didn’t seem to like the broad argument, they didn’t seem to like the narrow argument, and it just felt painful,” she said. “It was like, ‘What are you doing bringing us this case?’ like a collective stiff-arm: ‘Get away from me.’ It was like they didn’t even want to touch us.”