Forcing the Spring: Inside the Fight for Marriage Equality (54 page)

Only after the justices verbally summarize their opinions from the bench does the Supreme Court hand out written copies to the public. With no way to flip to the end to see the holding and rationale, the experience of those sitting in the audience is an impressionistic one.

Justice Kennedy, looking straight ahead, delivered his in a regal tone. First, there was the question of standing. He went on for quite a bit about that, before declaring that DOMA was properly before the Court. When he finally turned to the merits, Boies, who said he never lost sleep over a case, was in a state approaching alarm, as his mind tried to process phrases about laws “which for centuries had been deemed necessary,” and marriage being the “exclusive province of the state.” If Justice Kennedy, joined by the court’s four liberals, had decided
Windsor
based solely on federalism grounds, it might be time to hit the panic button.

“
That’s not good, that’s not good,” thought Matt McGill, who was standing in a hallway in the Third Circuit Court of Appeals in Philadelphia where Olson was preparing to argue his case, holding his phone up to a window in order to get enough bars to follow what was happening in Washington via SCOTUSBlog.

But then Kennedy started throwing around modifying phrases, making clear that the states’ power was “subject to constitutional guarantees” and using terms like “stigma” to describe the federal law’s effect. He seemed to be saying that while he could have decided this case based on federalism grounds, he was going to go bigger.

It was going to be okay, Boies thought, then, as Justice Kennedy continued, he recalculated. It was going to be more than okay.

The 5–4 opinion was filled with the kind of flowery rhetoric that had marked the
Lawrence
decision, issued ten years earlier to the day. If Justice
Roberts, in attacking the narrower federalism argument during oral argument, had bet that Justice Kennedy would be unwilling to find DOMA unconstitutional on broader grounds, he had seriously miscalculated.

In explaining the decision by states like New York, where Edie Windsor lived, to allow gays and lesbians to marry, Kennedy wrote of an “evolving understanding of the meaning of equality.” The state had acted to “give their lawful conduct a lawful status,” in what was “a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.” The “essence” of DOMA, he wrote, was to interfere with that dignity, to “disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

This was more than just a victory. It was a validation, by the highest court in the land, of an entire community. In the bar section, a group of women sitting together began dabbing at their eyes. As Justice Kennedy pronounced DOMA “unconstitutional,” based on both due process and equal protection grounds, someone let out a wail. In New York, Edie Windsor, watching from her lawyer’s apartment, let out a whoop. “
I want to go to Stonewall right now!” she said.

But what, exactly, did it mean for Prop 8 and bans like it?

Justice Scalia, reading a summary of his dissent from the bench, provided part of that answer.

“The penultimate statement of the majority’s opinion is a naked declaration that this opinion and its holding are confined to those couples ‘joined in same-sex marriages made lawful by the State.’ In other words, today’s opinion does not say anything about whether same-sex marriages must be made lawful,” Justice Scalia said.

“It takes real cheek for today’s majority, as it is going out the door, to leave us with that comforting assurance—when what has preceded it is a lengthy lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to Congress’ hateful moral judgment against it.”

To Chad, hanging on each word, it now seemed clear that the majority of the Court would not reach the merits in the Proposition 8 case. But it seemed equally clear that the five justices who had just delivered the
Windsor
opinion weren’t going to vote to declare Proposition 8 constitutional either. Instead, they would duck for now, even as the
Windsor
opinion provided a road map for the next challenge.

Justice Scalia, still thundering his dissent from the bench, had reached the same conclusion. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

Winding down, Justice Scalia then proceeded to read the majority opinion in another case, an interminable delay for everyone waiting to hear the Prop 8 opinion that he seemed to recognize. “Sorry, but this is a short one,” he quipped, good humor now returned.

And then, finally, Chief Justice Roberts delivered the opinion of the Court in the Proposition 8 case. On a vote of 5–4, the Court cleared the way for same-sex marriages to resume in California, while leaving for another day the question of whether all fifty states must follow suit.
Kris, sitting next to Chad, gasped aloud.

Notwithstanding the California Supreme Court’s finding that the state constitution gave proponents of Proposition 8 the authority to stand in for the governor and the attorney general for the purpose of defending the initiative, the majority declared that the question of standing was a federal question. Cooper, who was reading the opinion on SCOTUSBlog in his office, couldn’t believe the way that Roberts sidestepped the Supreme Court precedents that he had relied upon to reach the conclusion of the Court.

While it was true that the Supreme Court had granted New Jersey state officials standing to defend a school prayer law in the 1987
Karcher v. May
case, it had limited standing to elected officials still in office, Roberts wrote. Then, in a piece of reasoning that Cooper found breathtakingly disingenuous, Roberts buttressed his opinion by turning to a passage in the Court’s 1997
Arizonans for Official English
opinion.

In that case, the Court had cast doubt on ballot proponents’ ability to defend initiatives because there was nothing on Arizona’s books or in the state
constitution allowing them to act as agents of the state “
in lieu
of public officials
.”
But Roberts turned the passage “on its head,” Cooper would later say, in order to conclude that because Proposition 8 proponents were not elected officials, but rather mere private citizens, answerable to no one, they could not by definition be agents of the state as required by
Arizonans
. And as private citizens, Roberts explained from the bench, Prop 8 proponents “must have suffered some injury.” That was a test, the majority concluded, that they could not meet, meaning they never should have been granted standing to challenge Judge Walker’s decision.

Boies, listening, seized on those words: That was what they had been arguing all along, that allowing gays and lesbians to marry harmed no one.

In Philadelphia, McGill ran into the courtroom where Olson, with no access to the news, was sitting. The court was in session so he had to whisper the news. “You could see the tension drain away,” McGill would later recall. Olson’s shoulders, which had been bunched up around his ears, relaxed. “We won,” he said.

The Gulfstream IV carrying Chad, Boies, the plaintiffs, and the AFER team took off for California a little after 1
P.M
. Boies had paid for another private jet to pick up Olson in Philadelphia so he could meet them at the West Hollywood rally that night, and the stewardess reported that from time to time it could be glimpsed just up ahead.

This was a group that had never let a milestone go by without speeches and toasts, but the whirlwind of the last few hours had left little time to process what had just happened. After only the briefest of huddles in a vestibule near the Supreme Court’s front doors—“If you listen to the DOMA decision it’s only a matter of time before it goes across the country!” a jubilant Boies had told the plaintiffs—the team had stepped outside and into a media melee, culminating in a call from President Obama.

Everyone was still giggling about how Chad, in the media pit outside the Supreme Court where every major network had set up their cameras, had tried to get producers’ attention, saying, as loudly as he could, “Hello, Air Force
One.” When that hadn’t worked, he had shoved his way into an MSNBC live shot of Kris and Sandy, speakerphone on, as the president praised everyone for their courage and Paul invited him to their wedding in a call heard round the world. “I do know a little about media,” Chad said with a laugh.

But overall, the mood on board was subdued. The proponents of Prop 8 had just issued a press release signaling that they intended to try to limit the scope of the day’s Supreme Court ruling with yet another round of litigation, arguing that Judge Walker’s decision applied only to the four plaintiffs because the case had not been filed as a class action. The idea had gained some traction after Judge Reinhardt, during the Ninth Circuit’s arguments, had flummoxed Boies with his question about whether they had sued the right people.

No one on the legal team gave much credence to the argument. But given that Judge Reinhardt had included an aside in his opinion chastising the team for not filing the case in a way that ensured statewide enforcement, the team had been preparing for this eventuality.

In recent weeks, Chad, Adam, and Ted Boutrous had met privately with California attorney general Kamala Harris and Governor Brown’s legal staff. Legally and practically, they had argued, as the top legal officers in the state, you are the ultimate arbiters on the matter. The coordination had paid off: Shortly before takeoff, Governor Brown had called Chad directly to tell him he had just ordered California’s county clerks and county registrars to begin issuing same-sex couples marriage licenses as soon as the Ninth Circuit, whose decision on the merits had now been vacated, gave the state the go-ahead.

Chad, checking his e-mail, saw that the Associated Press was reporting that marriages would not resume in California for at least twenty-five days. The losing side in a Supreme Court case has that long to ask for a rehearing, and while that request is rarely granted, the wire service was quoting a spokesperson for the Ninth Circuit saying the court would likely wait for that time to run before lifting the stay it had imposed after ruling in the plaintiffs’ favor. He called the news back to the plaintiffs and Adam.

With no immediate wedding to plan, Kris and Sandy passed the time by sharing the e-mails flooding their in-box. Paul, looking emotionally exhausted, stared intensely out the window for several minutes, before laying his head on Jeff’s shoulder and falling asleep.

Up front, Boies spread copies of both opinions in front of him and began reading carefully for the first time, while Chad called Robbie Kaplan, Edie Windsor’s lawyer, from the plane’s satellite phone.

“Robbie? Robbie, it’s Chad Griffin—congratulations!”

He listened for a second.

“We thank you! Everyone is sending their love to you and Edie.”

The front page of the following day’s
Washington Post
would feature an iconic photo of Chad, Boies, the plaintiffs, and Adam triumphantly emerging from the Supreme Court with their hands held high in the air under the headline
VICTORIES FOR GAY MARRIAGE
. The
New York Times
’s double-barreled headline sat over a picture of a joyous Edie Windsor, celebrating in the West Village near her home in New York City. The
Huffington Post
was already up with a headline that said it all:
DOUBLE RAINBOW
.