Forcing the Spring: Inside the Fight for Marriage Equality (53 page)

Walking out the Court’s bronze front door, Kaplan thought she had never had so much fun in her life. Her wife, Rachel Lavine, was waiting outside with their seven-year-old son, Jacob, who flew into her arms.

Chad, out on the courthouse steps again, watched as supporters swarmed Edie. “We love you!” people chanted. She tilted her head toward the heavens,
stretched out her arms, and, with her pink scarf whipping wild in the wind, looked for all the word as though she might fly away.

The consensus of the network and cable legal correspondents, who were already pontificating live, was that the Court appeared ready to strike down DOMA, a far more bullish take than yesterday’s. Hilary Rosen, who was out on the courthouse steps helping the DOMA team navigate the media scrum, felt for Chad. As the president of the nation’s largest gay rights organization, he wanted badly to win both cases. But the insta-analysis, comparing day one with day two of the arguments, could not have been easy for him to bear.

Before any reporters could waylay him, he quietly slipped away. This was Edie’s day, and, wrung out from lack of sleep, Chad just wanted to go home to his semifurnished apartment and collapse.

“They’ve operated in this fantastic fantasy land of righteousness,” Rosen said after he had gone. “‘Everyone else thinks we are crazy, but we just believe!’ Well, the people who are most important threw cold water on them. No one else over the last four years could, but they did.”

The Court-trained media operation would continue right up through decision day. Justices do occasionally change their minds as opinions are circulated, with the result that a majority opinion becomes the minority’s dissent, and Ted Boutrous had told them that every little bit helped. Rosen had heard that Justice Kennedy read the
Catholic Reporter,
and she was hoping to run an ad the following week featuring Catholic families who supported marriage equality.

But the truth was that by then it would probably all be over but the shouting. On Friday, the justices would meet behind closed doors, in the conference room behind the chief’s chambers, and a preliminary vote would be taken. Each justice would spell out where they stood on each of the two cases. The justices speak by order of seniority, so the chief would go first, followed by Scalia. Then Kennedy, assuming he did not buy the standing arguments, or pass, would have to say where he was on the merits, meaning that the liberals would presumably have at least some inkling of whether there were five votes to overturn Proposition 8 and DOMA before they cast their lot.

It was, as Boies had said at the previous day’s press conference, now in the hands of the Supreme Court.

B
enjamin Franklin, one of the nation’s founding fathers, once said, “Three may keep a secret, if two of them are dead.” In Washington, a town that leaks like a rickety old dinghy, the Supreme Court is the exception to that rule.

The nine justices and their clerks swap opinions back and forth for months, yet throughout the Court’s history only rarely has an opinion spilled ahead of its announcement. Deliberations, with some notable exceptions, usually stay within the justices’ chambers until one dies and releases their papers. Even the Court’s timing remains frustratingly opaque; parties only learn which opinions will be issued on any given day when the justices begin reading them aloud from the bench.

Because the Supreme Court tends to hold on to blockbuster cases until the very last minute, everyone assumed that the Proposition 8 and
Windsor
decisions would be handed down near the end of the term, in late June. And because the Court divides its term into sittings, with each justice generally writing at least one majority opinion per sitting, it seemed likely based on a numbers game Court watchers call “Supreme Court Bingo” that Chief Justice Roberts was writing one of the opinions, while Justice Kennedy was writing the other, because neither had yet delivered an opinion from the March sitting when both cases were argued.

With no way of knowing when the decisions were coming, Chad and Olson
had been filing into the Supreme Court every decision day since the middle of June. It was a measure of the importance Olson placed on the case; he was usually not so religious about needing to hear the outcome in person. Like a sports fan who won’t look away from a game for fear of his team losing, it was almost as though Olson believed that just by being there in front of the justices he could will them into ruling his way.

Recently the plaintiffs had begun joining them, bags packed, ready to jump on a plane to California for a rally in West Hollywood the minute they knew their fate. Repeating the same drill over and again was anxiety-producing, to say the least. Every time Chief Justice Roberts would announce, “Justice Kennedy has the next opinion,” Olson’s head would jerk up and Chad would lurch to the edge of his seat, heart thumping. It made Kris feel out of control, “like a leaf in the wind.” Jeff couldn’t sleep without taking half of a Xanax: “My mind, just—race, race, race,” he’d said after one abortive trip. For Edie Windsor and the DOMA team, convening every decision day at lead attorney Robbie Kaplan’s apartment in New York was equally torturous.
Edie’s doctors, worried that the stress was too much for her weak heart, had forbidden her from traveling to D.C.

But finally the wait was over. The previous day, Justice Roberts had signaled that today, Wednesday June 26, was to be the final day of the Court’s term. Tonight, for the first time in years, they would all go to sleep knowing the outcome.

“Well, well, well,” Chad said, jumping out of a black SUV as it pulled up to the hotel where the plaintiffs were pacing, waiting to be picked up. “How you guys doing?”

He was wearing a dark suit and the same silvery blue tie he had been wearing to court every day for the past several weeks. It was the one he’d worn at the press conference announcing the case in May 2009. Its breadth was out of fashion, but it had taken him this far, so rather than pick a new one he had taken it to a tailor and had it slimmed.

Getting dressed that morning, Sandy had grabbed everything red she owned, in honor of the Human Rights Campaign’s red “equal” logo. Peeking
out from under her blazer was a red blouse, and in addition to her regular purse, she held up a random red nylon bag, “for luck,” for everyone to admire. Kris, always one to try for a little levity during times of stress, had to laugh at that particular accessory. “We’re going to the farmers’ market before the Supreme Court,” she joked. “That is so Sandy.”

“I brought Jeff,” Paul piped in. “If I have anything lucky, it’s him.”

They were all feeling a little superstitious, in part because today was the only day that Olson could not be with them. He was due to appear in the Third Circuit Court of Appeals in Philadelphia that morning on behalf of the state of New Jersey, which was challenging a law that limited betting on professional and college sports to Nevada and three other states. Defending the law was none other than Paul Clement, who had argued that DOMA was constitutional.

“Jesus, how could this happen?” Olson had said, crestfallen after Roberts made the announcement. Then, seeing the plaintiffs’ long faces, he’d moved to comfort them. “We haven’t lost the case, guys,” he said, promising to try to join them for a postdecision rally in West Hollywood.

Olson had become their sherpa in this legal expedition, and they felt more than a little lost without him as they climbed into the SUV that would, for the last time, carry them to the nation’s highest court. Rob and Michele Reiner, the parent figures of the operation, were also absent; Rob was in Connecticut, filming a movie. “Feel so bad I can’t be with you,” he texted Chad. “Give big hugs and kisses from me to everyone.”

Chad read an e-mail from Kristina, who was on her way with the president and first lady to Andrews Air Force Base and then on to Africa. “This is all surreal,” she wrote.

“Do you believe we’re going to know in one hour, or one hour and a half?” Sandy said.

“Don’t make me throw up back here,” Paul replied.

Kris joked that between nerves and the sweltering heat, there was no way they would be able to follow the old “never let ’em see you sweat” adage. “Nothing works on Sandy. Would deodorant work on a hummingbird?”

“I finally have a hankerchief because I know I’m a blubbering mess at these things,” Paul said, holding out an old-fashioned white square trimmed in pale blue. “Jeff was like, ‘Really? You’re my grandfather right now!’”

Since the oral arguments, France, Brazil, Uruguay, and New Zealand had become the latest countries where gays and lesbians could wed, and Britain was about to follow suit. Closer to home, after voters in Minnesota rejected the constitutional ban on same-sex marriage, lawmakers in that state had voted to legalize it. Delaware and Rhode Island had also passed laws allowing gays and lesbians to wed, bringing the total number of states to thirteen, plus the District of Columbia. Two more Republican U.S. senators, Lisa Murkowski of Alaska and Mark Kirk of Illinois, had come out in favor of allowing gays and lesbians to marry.

The Boy Scouts, under pressure from donors who themselves were under pressure from Chad, had dropped their prohibition on gay scouts, if not gay scout leaders. The first active major-league American sports player, NBA center Jason Collins, had come out as gay in a
Sports Illustrated
cover story.

Even the Catholic Church was softening, if not its position, its message. A new pope had recently been elected, and would soon, in a series of headline-making remarks, declare that gays and lesbians should be treated with respect: “If someone is gay and he searches for the Lord and has goodwill,” Pope Francis said, “who am I to judge?” But under his leadership, the church’s tone was already changing.

Cardinal Timothy Dolan, who during the New York State legislative battle had predicted that allowing gays and lesbians to marry would lead to a “perilous” and “Orwellian” future, had recently declared that “we gotta do better to see that our defense of marriage is not reduced to an attack on gay people. And I admit, we haven’t been too good at that.”

Predicting with any certainty what the Supreme Court might do in this atmosphere was a fool’s errand, but that did not stop either the DOMA or Prop 8 teams from parsing even the smallest of signs for meaning.

Justice Kagan had been spotted out and about over the weekend, shopping at a supermarket and attending a dinner party. Did that mean that she was in the majority, since she wasn’t buried in her office writing a dissent? And then there was the scathing speech Justice Scalia had given the previous week in North Carolina. Entitled “Mullahs of the West: Judges as Moral Arbiters,” it made for interesting tea-leaf reading. Why would he be decrying judges who believed they, rather than the community, were qualified to decide questions of morality such as same-sex marriage, where, as he put it, there was no
“scientifically demonstrable right answer,” if he had emerged victorious in the Court’s internal debates?

The day before, Olson had told the plaintiffs that the most likely outcome was that they would win on standing. Former justice John Paul Stevens, the man who Olson had hoped would sway Justice Kennedy his way, had made the same prediction in a speech that month, the lawyer noted to Chad.

But there was still a real sense that anything could happen, even an outright loss, particularly now that it appeared Roberts was writing one of the opinions. In recent days, the Supreme Court had gutted the Voting Rights Act and stepped up scrutiny of race-conscious college admissions policies in a high-profile affirmative action case.

“Those decisions have not made me more optimistic,” Boies said over lunch one day at a Washington steakhouse.

Mary, his wife, nodded her agreement. “I just hope there aren’t any broken hearts.”

AFER had prepared seven different press releases to cover every possible outcome. The one they would release if Proposition 8 was upheld had been the last, because everyone kept refusing to write it. “I know we don’t want to focus on this,” Jeff had said the night before. “But what if we lose?”

“It’s going to be rough,” Adam had replied. What else could he say?

Kris, checking her iPhone, saw an e-mail from Jim Messina, Obama’s 2012 campaign manager. Kris, who in her new job was working with Messina to promote the president’s early childhood education initiative, shared his message: “Please know you have already won. 9 old fucking judges can’t change that, either way.”

Silence. Fiddling with her iPhone again, Kris looked for a song to fill it, to capture the moment. She settled on one by hip-hop artist B.o.B. The lyrics filled the SUV:

Can we pretend that airplanes

In the night sky

Are like shooting stars?

I could really use a wish right now

Wish right now

Wish right now.

Kris, swaying back and forth, leaned over and kissed Sandy’s cheek. “No matter what happens, we won,” she said, trying to sound convincing. “We did.”

As the SUV pulled in front of the U.S. Supreme Court, one by one everyone began softly singing along with the music.

I could really use a wish right now

Wish right now

Wish right now.

The noise hit them as soon as they stepped onto the sidewalk. Beyond the crush of cameras and reporters shouting questions, a sizable crowd had gathered, pressing close and chanting two words over and over as Chad, Jeff, Paul, Kris, Sandy, and Adam made their way up the courthouse’s marble steps.

“Thank you! Thank you! Thank you!”

Inside, the courtroom was hushed. Boies had already taken his seat in the bar section. Olson had managed to secure seats reserved for guests of Justice Clarence Thomas and retired justice Sandra Day O’Connor for everyone else. Cooper was not there, but a number of his clients were.

As the clock ticked close to 10
A.M
., Chad squeezed Kris’s arm, who grabbed Sandy’s, and on it went down the row.

Suddenly, the justices appeared all at once, stepping like wizards of Oz through invisible openings in the cascading red draperies that backdropped their bench. Justice Alito seemed to be grimacing; the rest were their usual inscrutable selves.

When everyone was seated again, Chief Justice Roberts made the following pronouncement:

“Justice Kennedy has the opinion in—”

Chad felt as though he held his breath for minutes, though scarcely half a second passed before the chief finished:

“—
Windsor
.”

In New York, Edie and her legal team began jumping up and down. Chad, who had been sitting tall, dropped his head. That meant that Roberts was writing the Proposition 8 opinion, which likely meant one of two things: Either
they were about to win on standing, or the Court was going to uphold bans like Proposition 8 as a proper exercise of the state power to regulate marriage, the outcome the entire gay legal community had feared when they had announced the case.