Forcing the Spring: Inside the Fight for Marriage Equality (59 page)

M
ost journalists believe they have a book in them, and I was no exception. But writing is a solitary, neurosis-inducing endeavor, and I kept waiting for the story that would compel me to embark on such journey, the book I could not
not
write. I found it in the spring of 2009, when I began reporting for the
New York
Times
what would become the first in-depth look at how Ted Olson came to embrace the cause of same-sex marriage.

The story ran on the front page. Afterward, I found I could not let it go. I knew both Ted Olson and David Boies from covering the Florida recount in the deadlocked 2000 presidential election, and had come to know Olson even better over the course of my reporting on the Bush administration. I met Olson in Washington and Chad Griffin in New York to talk about the idea of doing a fly-on-the-wall account of this chapter in the nation’s civil rights history.

After talking it over with the four plaintiffs, they agreed. For more than four years, leading up to and throughout the trial and subsequent legal proceedings, I had complete and unfettered access to the plaintiffs and their team. I wandered freely in and out of rooms where the lawyers prepared witnesses and debated legal strategy. I sat in the war room as Chad and his team pitched reporters on stories, crafted messaging strategies, and mounted a campaign aimed at winning over the country. When the lawyers and the plaintiffs and the AFER war room team arranged conference calls, I was often on the line. Kris and Sandy and Jeff and Paul allowed me into their homes and into their lives. I rode with them to court, sat next to them as they digested every opinion
handed down in the case, flew back with them to California after the Supreme Court ruling, and was there, eventually, when Kris and Sandy married.

The thoughts and feelings of the main characters are as described to me, often contemporaneously, or to each other, in the moment. The dialogue described in this book was personally observed by me, unless otherwise noted. In some instances, particularly at the beginning of this narrative before the trial began and I was fully embedded with the team, and in describing the Obama administration’s internal deliberations, I had to rely on the accounts of others. Endnotes provide readers with the sourcing in those cases, and where snippets of conversation are quoted in those instances, it is based on the verbatim recall of participants and, often, their notes. Similarly, the vast majority of the e-mails, texts, and documents quoted in this book were seen by me personally. If they were described by others, then that is noted. I have also delineated quotations that were the result of my interviews with participants, versus dialogue that I was there to witness, by providing endnotes to make that clear.

It was agreed from the beginning that my access to the legal and war room team came with no prepublication review or veto rights. The only restriction was that I promised to keep everything I learned confidential until after the legal proceedings were concluded, and I was not given access to materials produced in the case that were sealed by the court or otherwise subject to court-ordered confidentiality.

It was an enormous act of faith on everyone’s part, especially for lawyers trained to guard such privileged discussions, and I will be forever grateful to everyone involved for their trust.

I also owe a debt of gratitude to Chuck Cooper, whom I also approached at the outset of the Proposition 8 case. He did not agree to give me contemporaneous access to his team or clients, with the result that much of this book is told from the vantage point of the plaintiffs. But we occasionally talked during the legal proceedings, and he promised to sit down with me once the last argument had been made. He was a man of his word, and he spent many hours, first patiently explaining his thinking and decision making in a series of lengthy interviews following the Supreme Court arguments, then, many months later, trusting me to tell the story of his family.

Judge Walker deserves my heartfelt thanks for the hours he spent with me
after the trial had concluded, as do the dozens of people in the Obama administration who shared their knowledge of events with me.

I am also thankful to the lawyers on both sides of the DOMA case. Robbie Kaplan and Edie Windsor sat with me on multiple occasions as their case headed to the Supreme Court and afterward. Paul Clement, the lawyer who defended the law, also agreed to several interviews in which he explained his strategy.

This book, which took close to five years to report and complete, would never have happened but for the support of my agent, Sloan Harris, who believed in me when I doubted myself, the guidance of my brilliant editor, Ann Godoff, who believed in this book back when no one knew where the litigation or the country was headed, and finally her deputy editor, Benjamin Platt, who played the role of therapist during occasional panic attacks.

This project also would not have been possible without a generous grant from the Ford Foundation, which allowed me to take leave from the
New York Times
to write this opus, and without the support of Jill Abramson and Matthew Purdy at the
New York Times,
who agreed to give me the time off. A big shout-out to Julie Tate, whose sharp fact-checking eye saved me from many a mistake.

On a personal note, I want to thank my father, Bob Becker, for instilling in me a love of books in general, and
To Kill a Mockingbird
in particular. He is my Atticus Finch. Many thanks to my brother, Scott, for putting me up during reporting jaunts to Washington, D.C., to my friend Carleen Hawn for lending me her apartment during the many weeks I spent in San Francisco as this project got off the ground, and to all the friends who offered their advice along the way.

Anyone who knows me knows I would be remiss if I also did not thank my trusty canine companion, Humphrey, who spent hours staring at me as I stared at a computer screen. And finally, as I wrote I thought often of my wonderful aunt, Ellen “Curly” DeLeyer, who was an inspiration to me in too many ways to count.

SECTION I

Section I
:
Some of the scenes and information in section I of this book first appeared in a story written by the author. Jo Becker, “A Conservative’s Road to Same Sex Marriage,”
New York Times,
August 18, 2009.

CHAPTER 1: THE “PACT”

“Look around the room”
:
Author interviews with Kristina Schake and Chad Griffin, August 6, 2010.

“It feels,” he told Kristina
:
Author interviews with Chad Griffin and Kristina Schake, summer 2009, January 2013.

“That night, we made a pact”
:
Author interview with Kristina Schake, summer 2009.

A staggering $44.1 million
:
“Proposition 8: Who Gave in the Gay Marriage Battle,”
Los Angeles Times,
June 30, 2012.

“Every single time”
:
Author interviews with Kristina Schake, summer 2009; Rob and Michele Reiner, 2010; and Chad Griffin, January 2013.

Just then, an acquaintance of the Reiners
:
This section is based on author interviews with Kate Moulene, Chad Griffin, Kristina Schake, and Rob and Michele Reiner, spring and summer 2009.

It was a brief conversation
:
Author interview with Michele Reiner, January 24, 2013.

“My ex-brother-in-law is a constitutional lawyer”
:
Author interviews with Michele Reiner and Kate Moulene, August 2009.

“I’ve watched for twenty years how he treats people”
:
Author interview with Kate Moulene, August 19, 2009.

“This sounds crazy”
:
Author interview with Kristina Schake, summer 2009.

“The whole issue has been too much”
:
Dean E. Murphy, “Some Democrats Blame One of Their Own,”
New York Times,
November 5, 2004.

It was not, as Clinton claimed
:
Author interview with Richard Socarides, December 19, 2012.

“If someone as conservative” .
 . . “It could be a game-changer”:
Author interviews with Chad Griffin and Rob Reiner, summer 2009.

CHAPTER 2: A CONSERVATIVE ICON JOINS THE CAUSE

“I’m going to Washington to meet
this
guy?’”
:
Author interview with Chad Griffin, summer 2009.

“Too often in the debate over same-sex marriage”
:
Ibid.

“One-third of gay, lesbian, bisexual, and transgender teens”
:
Author interviews with Chad Griffin and Ted Olson, summer 2009.

“This is not about me”
:
Ibid.

“God, it’s hard enough being a teenager”
:
Author interview with Ted Olson, summer 2009.

Unbeknownst to Chad
:
Author interview with Ted Olson, spring 2009.

When that owner threatened to call the police
:
Author interview with Paul Winters, summer 2009.

When a federal prosecutor was fired for being gay
:
OLC, Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality, 3 (Mar. 11, 1983) (7 op. OLC 46).

Not only was it bad policy
:
Author interview with Ted Olson, summer 2009.

“You have to make peace with this”
:
Author interview with David Frum, summer 2009.

Yet even as he publicly defended the administration’s prerogatives
:
Barton Gellman and Jo Becker, “Pushing the Envelope on Presidential Power,”
Washington Post,
June 25, 2007.

“Why shouldn’t I take this case?”
:
Author interview with Ted Olson, summer 2009.

Then, leaning forward in his chair
:
Author interview with Chad Griffin, summer 2009.

Sexual orientation, Olson believed
:
Author interviews with Chad Griffin, summer 2009, January 2013.

“You will not believe this”
:
This section relies on author interviews with Chad Griffin, summer 2009.

Walking up the circular brick driveway
:
Author interview with Ted Olson, summer 2009.

“The time for playing it safe”
:
Author interview with Bruce Cohen, summer 2009.

Every major gay rights legal group in the country
:
Press release issued by the ACLU, GLAD, Lambda Legal, the National Center for Lesbian Rights, Equality Federation, Freedom to Marry, the Gay and Lesbian Alliance Against Defamation, the Human Rights Campaign, and the National Gay and Lesbian Task Force.

Now, walking across the room
:
Author interviews with Bruce Cohen, 2009, 2010, and 2012.

“Don’t bring DOMA into this”
:
Author interview with Kristina Schake, summer 2009.

Its passage created what Olson would later refer to
:
Author interviews with Kristina Schake, summer 2009, and Chad Griffin, January 27, 2009.

“This isn’t about winning five to four”
:
Author interviews with Kristina Schake and Chad Griffin, summer 2009.

“I will not just be some hired gun”
:
Author interviews with Kristina Schake, Rob and Michele Reiner, and Chad Griffin, summer 2009.

Olson was willing to take the case
:
Contract signed in May 2009 between the American Foundation for Equal Rights and Ted Olson.

“I want a teacher, a police officer”
:
Author interview with Kristina Schake, summer 2009.

“We are going to the Supreme Court!”
:
Author interviews with Kristina Schake and Chad Griffin, summer 2009.

CHAPTER 3: “JUST WAIT”

But one day a friend had phoned him
:
Author interview with Chad Griffin, August 16, 2010.

“I can’t come out”
:
Ibid.

“Life is too short”
:
Ibid.

“I think that sometimes we think”
:
Author interview with Dustin Lance Black, July 13, 2010.

“King,” he told Chad
:
Ibid.

Jones had agreed to the meeting
:
Author interview with Cleve Jones, June 17, 2010.

Midway through breakfast
:
Author interviews with Dustin Lance Black, July 13, 2010, and January 19, 2013.

Come with me
:
Author interview with Dustin Lance Black, July 13, 2010.

Wolfson had berated
:
Ibid.

“This just means we are doing the right thing”
:
Ibid.

Still, it was with some trepidation
:
Copy of Dustin Lance Black’s March 21, 2009, speech at OutGiving.

“Harvey Milk didn’t start”
:
Author interview with Evan Wolfson, May 30, 2013.

But he hadn’t gotten far
:
Author interview with Kristina Schake, January 4, 2013.

“It just felt like there was a lot of disrespect”
:
Author interview with Jon Davidson, national legal director, Lambda Legal, December 23, 2013

It was not that the movement lawyers disagreed
:
Author interview with Ramona Ripston, former executive director of the ACLU’s Southern California office, June 27, 2013.

“Really?” said Boutrous
:
Author interview with Ted Boutrous, December 24, 2012.

Davidson threw a multipage dossier
:
Author interviews with Ted Boutrous, December 24, 2012, and Kristina Schake, January 4, 2013.

“It has to have the word ‘American’ in it”
:
Author interview with Kristina Schake, January 4, 2013.

“I think we should all join hands”
:
Author interviews with Ted Olson and Chad Griffin, summer 2010, and Ted Boutrous, January 10, 2013.

But the biggest breakthrough
:
Author interviews with Rob and Michele Reiner, August 6, 2010, and Adam Umhoefer, January 10, 2013.

“Whatever you need”
:
Author interview with Rob Reiner, August 6, 2010.

“Are we making the wrong choice?”
:
Author interview with Kristina Schake, January 4, 2013.

The lawyers then produced
:
Undated copy of “The Time Is Now” memo.

“Then if our reasons are sound”
:
Ibid.

CHAPTER 4: A MAD DASH

So the two political consultants
:
Author interviews with Kristina Schake, January 2010, and January 2013.

He wanted their lawsuit
:
Undated copy of “The Time Is Now” memo.

They could talk all they wanted
:
2008 exit poll data.

“What about Kris?”
:
Author interview with Kristina Schake, January 4, 2013.

Olson had wanted to avoid
:
Author interview with Kristina Schake, January 2010, and Ted Boutrous, March 12, 2013.

But Kris was so excited
:
Author interviews with Kris Perry and Sandy Stier, summer 2009.

“This is literally making me nauseous”
:
Author interviews with Paul Katami and Jeff Zarillo, January 8, 2010.

Afterward, at the diner
:
Ibid.

The first person Olson approached
:
Author interviews with John August, March 3, 2012, and Adam Umhoefer.

Smith, who had recently been asked
:
The following conversation was recounted in an interview by the author with Paul Smith, November 6, 2012.

Olson disagreed
:
Author interview with Paul Smith, November 6, 2012.

“We’ve got the right district”
:
Author interview with Ted Olson, summer 2010.

Another potential co-counsel
:
Author interviews with Dennis Herrera, San Francisco city attorney, January 19, 2010; John August, AFER donor, March 3, 2012; Paul Smith, May 2013; and Chad Griffin, April 16, 2012.

Bringing her on board
:
Author interviews with John August, March 3, 2012, and Adam Umhoefer, undated.

After securing Chad’s
:
Author interview with Rob Reiner, August 6, 2010.

Olson called Boies’s firm
:
November 29, 2012, e-mail from Alison Preece, communications coordinator, Boies, Schiller & Flexner, LLP.

“Let’s do it”
:
Author interview with David Boies, summer 2009.

represented a fraction
:
Contract signed in May 2009 between the American Foundation for Equal Rights and David Boies.

CHAPTER 5: GOING PUBLIC

Enrique Monagas, an associate
:
The following section draws upon author interviews with Enrique Monagas, January 6, 2009, and June 19, 2010.

“Unfortunately, gentlemen”
:
Author interview with Paul Katami and Jeff Zarillo, conducted on January 8, 2010

“We are going to plan your wedding”
:
Author interview with Paul Katami and Jeff Zarillo, summer 2009.

“These are our neighbors”
:
Transcript of the May 27, 2009, AFER press conference.

“Oh shit”
:
Author interview with Judge Vaughn R. Walker, November 21, 2012.

The sixty-five-year-old judge
:
Author interview with Judge Vaughn R. Walker, December 4, 2012.

And so he had stayed mum
:
Author interview with Judge Vaughn R. Walker, November 21, 2012.

Judges are required to disqualify
:
28 U.S.C. § 455(a), 455(b)(4).

He would later tell friends
:
Author interviews with retired San Francisco superior court judge James Warren, December 9, 2011, and Judge Vaughn R. Walker, November 21, 2012.