Forcing the Spring: Inside the Fight for Marriage Equality (8 page)

“
I can help give you cover,” Herrera recalled saying. “You can say that we
oppose all interveners, but if you are going to let someone in, let San Francisco in.”

The strategy worked. On August 19, Judge Walker granted the city’s motion to join the case but denied everyone else’s. Stewart immediately began funneling the team the names of expert witnesses whom she had cited in her California Supreme Court case, as well as experts used in the other state court cases challenging marriage bans. The Gibson Dunn team seemed appreciative of the help. But Stewart found the unflagging confidence of some of her new cohorts off-putting.

During the California Supreme Court proceedings, she had devoted every spare moment to the case. It was as though she carried in her briefcase the pain of the entire gay community. She was so worried about letting people down that it wasn’t until after she had won that she even considered what it might mean for her personally.

A reporter from the
San Jose Mercury News
had called for comment, asking whether she would now marry her longtime partner, Carole Scagnetti. She had burst into tears. “I realized I had been holding it all at bay because I didn’t want to dare to hope for the unattainable.”

Watching that victory be snatched back by the voters had sapped some of her belief in the system. On election night, she and Carole had spoken to their daughter, Tasha, who was attending college at Mount Holyoke. As an African American, Tasha had been thrilled by Obama’s historic election. They had taken Tasha in when she was in eighth grade, becoming her legal guardians the following year, and they were proud of the poised young woman she had become. They tried to share in her celebratory mood, but it was difficult. Black voters had flocked to the polls in record numbers to elect the first black president, but a majority had also supported Proposition 8. Both women cried before drifting off to sleep that night.

In a contemplative moment shortly after the case was filed, Stewart pulled aside one of the Gibson Dunn lawyers assigned to it, Chris Dusseault.

“What if we lose?” she recalled asking.

“That’s why they hire us, to take the tough cases,” he replied.

Stewart held her tongue, because Dusseault seemed nice enough, and as a straight white guy, she figured he had never faced any real prejudice.

“But I thought, ‘This isn’t some big antitrust case, asshole. These are real people.’”

Cooper had begged Judge Walker to throw out Olson’s lawsuit, arguing that the Supreme Court had already had the final say on same-sex marriage when in 1972 it declined to review a lower court’s finding that Minnesota could rightfully deny gay couples marriage licenses in a case called
Baker v. Nelson
. Instead, Walker set a fast-track schedule that had Cooper scrambling to find experts willing to testify at a three-week trial set to begin on January 11, 2010, only months away.

A courtly man with blue eyes, elfin ears, and the smooth flushed cheeks of a child just in from the cold, Cooper spoke in what
Washington Post
columnist Mary McGrory once described as a “kind of Victorian copybook prose, ever seeking the elegant variation for the blunt.” Over breakfast in Dupont Circle one day in September, he wondered aloud how he could possibly juggle a major constitutional case like
Perry v. Schwarzenegger
with all his other obligations.

Cooper had a twelve-member firm with a single office in Washington, D.C. Between Olson’s and Boies’s firms there were nearly three times that number working on the case, in offices in Washington, New York, Los Angeles, and San Francisco. And besides the
Perry
case, Cooper was suing Duke University and the city of Durham on behalf of thirty-eight university lacrosse players who had been falsely accused of rape, representing former attorney general John Ashcroft against torture allegations connected to Bush administration counterterror interrogation techniques, Boeing in a multibillion-dollar dispute over the awarding of a government contract, and defending a Michigan law barring race-conscious admissions policies at state universities.

“We’ve been on a Bataan death march,” he complained, running a hand through white hair that looks Brylcreemed into its precise 1930s-style part. “It’s unbelievable to be trying this case in less than five months—I’ve never seen anything like it. It’s a grueling schedule for both sides really, but I think for my side in particular.”

In Cooper’s mind, same-sex marriage simply was not a federal issue, but rather one that should be left to the people and their representatives. That summer, legislatures in New Hampshire, Maine, and Vermont had passed same-sex marriage, bringing the total number of states allowing gays and lesbians to marry to six.

“If the state of Vermont’s decision to legalize gay marriage were challenged, I’d defend it too,” he said. “I don’t understand why extremes on both sides insist on seeing this issue in terms of good and evil.”

But even some members of his own family did not agree with his position in the Proposition 8 case—“With six kids, there’s a variety of opinions on this issue,” he said—and he felt he was getting killed in the media.

Gay marriage opponents weren’t making his job any easier. Cooper’s strategy hinged on convincing one person—Justice Kennedy—that the bulk of the people who had voted for Prop 8 bore no animus toward gay people.
But a group called the Campaign for California Families had attempted to intervene in the case, making arguments that Justice Kennedy could well find offensive. The group claimed that Cooper was conceding too much by acknowledging, for instance, that gays and lesbians could form “lasting, committed relationships” and that “same-sex sexual orientation doesn’t result in any impairment of judgment.”

Judge Walker, at Cooper’s request, had denied the group’s motion to intervene. He then called the remaining parties—Cooper, Olson, and the city of San Francisco—together for a case management hearing. It was scheduled to take place in four weeks, on October 14 in San Francisco.

In advance of the hearing, Cooper had managed to file a voluminous 117-page brief. He reckoned he and Olson would remain friends even after the lawsuit had reached its conclusion. But he charged that Olson was calling for a “radical redefinition of the ancient institution of marriage” completely unconnected to rights spelled out in the Constitution. The due process clause, he said, “specially protects those fundamental rights and liberties
which are objectively deeply rooted in the nation’s history and tradition
.” That could hardly be said of same-sex marriage, he argued.

Next he turned to
Lawrence v. Texas
. That case dealt with the criminalization of private sexual behavior, not the state’s affirmative duty to recognize a marriage, he argued. And while gays and lesbians may once have been the victims of persecution, he wrote, today they formed a powerful political constituency.

The court, as a result, should not apply heightened scrutiny, and should only determine whether there was any rational reason for California voters to have done what they did. That interest, he concluded, was clear: The state was in the marriage business to “channel naturally procreative sexual activity between men and women into stable, enduring unions,” thereby reducing the number of children born out of wedlock. With that goal in mind, the state was not unconstitutionally treating similarly situated people differently, he said, because same-sex couples were not similarly situated in that they cannot accidentally impregnate one another.

But as the hearing got under way, Cooper quickly found himself in Judge Walker’s crosshairs.

“Well, the last marriage that I performed, Mr. Cooper, involved a groom who was ninety-five, and the bride was eighty-three,” said the judge, the smile under his neat gray goatee serving to emphasize his amusement. “I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

“No, Your Honor, you weren’t. Of course you didn’t,” Cooper replied.

“And I might say it was a very happy relationship,” Judge Walker said in his deep baritone.

“I rejoice to hear that,” Cooper responded, before trying to move on.

Olson, who had watched the exchange with delight, wasn’t quite ready to let him. “My mother was married three years ago,” he volunteered when given the chance. “And she, at the time, was eighty-seven and married someone who was the same age.”

Judge Walker moved on to another point. If the state’s interest was to try to ensure that biological mothers and fathers marry and raise their children together, it wasn’t working very well, he said. “I don’t want to base any decisions on what I hear on the radio coming to court in the morning, but there was some statistic that 40 percent—can this be right?—40 percent of female pregnancies in the United States are to unwed females.”

Cooper, figuring he had been given a lifeline, argued that statistics like that show why the state needs to nurture the institution of marriage.

“Well, let’s assume I agree with you that’s an unfortunate phenomenon,” Judge Walker countered. “How does that convert to a constitutional standard?”

The judge put Olson on the spot as well, drilling him on whether he had brought the case too soon. What about the point that “Mr. Cooper made repeatedly and very ably,” Walker asked. Why not let the political process play out, given that states are starting to recognize same-sex marriage? “Aren’t you just getting ahead of yourself?”

“Well, that would be exactly the same argument that was made and was rejected in
Loving versus Virginia
,” Olson replied, referring to the 1967 Supreme Court case striking down interracial marriage bans. “We don’t say to people in this country, ‘Wait until the population agrees that your constitutional rights can be recognized.’”

Olson had a point; when the landmark
Loving
decision was handed down, Gallup polling showed that nearly 75 percent of voters disapproved of interracial marriage. But this was tricky ground, because in 1967 interracial marriage was permitted in the majority of states, something that could not be said of same-sex marriage today.

“Let’s talk about rational basis,” the judge said. “Mr. Cooper argues very effectively that if Proposition 8 is assessed under the rational basis standard, then there is a rational basis in the tradition and history of opposite-sex marriage. Why isn’t he absolutely correct?”

“Because he’s asking the wrong question,” Olson said. “He’s saying, ‘Is there a rational basis for [encouraging] opposite-sex couples to get married?’ Of course there’s a rational basis for that.” The correct question, Olson said, was what state purpose was rationally served by the decision to
exclude
same-sex couples from the institution of marriage.

“Assume I agree with you that the state’s interest in marriage is essentially procreative, as you’ve put it,” Walker asked Cooper. “What is the harm to the procreative purpose or function of marriage that you outline of permitting same-sex marriage?”

Cooper tried a number of answers, including that the question wasn’t legally relevant, before the judge cut him off.

“I’m asking you to tell me how it would harm opposite-sex couples.”

“All right,” Cooper replied.

“All right,” Walker repeated. “Let’s play on the same playing field for once. Okay?”

“Your Honor, my answer is, I don’t know. I don’t know.”

Walker was stunned. How could Cooper not have anticipated the question? States had to have a reason when they discriminate. “I don’t know” didn’t seem much of a rationale to him.

Judges are not supposed to be strategists. But old habits die hard, and as an old trial attorney himself, Walker’s instinct was to leave well enough alone when a party made a damaging admission like that one. “I’m going to let that answer sit,” he recalled thinking. “But I was flabbergasted.”

What Cooper actually meant to say, and tried to clarify a few moments later, was that because same-sex marriage was still a relatively new phenomenon in the United States, it was rational for Californians to want to wait and see what, if any, effect it might have on traditional marriage.