by Becker, Jo
THE PENGUIN PRESS
Published by the Penguin Group
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First published by The Penguin Press,
a member of Penguin Group (USA) LLC, 2014
Copyright © 2014 by Jo Becker
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ISBN 978-0-698-15158-1
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For Serge
The nature of injustice is that you can’t see it in your own times.
—Supreme Court Justice Anthony Kennedy
CONTENTS
Title Page
Copyright
Dedication
Epigraph
Section I
ONE. THE “PACT”
TWO. A CONSERVATIVE ICON JOINS THE CAUSE
THREE. “JUST WAIT”
FOUR. A MAD DASH
FIVE. GOING PUBLIC
SIX. “PROVE IT”
SEVEN. WHERE’S DAVID?
EIGHT. AN UNEXPECTED DEVELOPMENT
Section II
NINE. “ALL RISE!”
TEN. “A HIGHER ARC”
ELEVEN. HISTORY LESSONS
TWELVE. A DAY OF SURPRISES
THIRTEEN. STIGMA
FOURTEEN. ON PARENTS AND FAMILIES
FIFTEEN. WHO’S A BIGOT?
SIXTEEN. A COURTROOM JOURNEY TO THE NETHERLANDS, VIA MASSACHUSETTS
SEVENTEEN. A JUDGE’S MEMORIES
EIGHTEEN. GOD, GAYS, AND POLITICAL POWER
NINETEEN. THE NAUGHTY BOY
TWENTY. THE SCIENCE OF SEXUALITY
TWENTY-ONE. THE PLAINTIFFS REST
TWENTY-TWO. COOPER’S TURN
TWENTY-THREE. “A HIGH OL’ TIME OF IT”
TWENTY-FOUR. VICTORY
Section III
TWENTY-FIVE. A TRUMP CARD, RELUCTANTLY PLAYED
TWENTY-SIX. “SOMETIMES PRAYERS WORK”
TWENTY-SEVEN. WHEN A NIGHTINGALE SINGS
TWENTY-EIGHT. SOME “GRIST FOR JUSTICE KENNEDY”
TWENTY-NINE. 8
THIRTY. OBAMA “COMES OUT”
THIRTY-ONE. CHAD AND THE CASE ENTER A NEW PHASE
Section IV
THIRTY-TWO. A STAR WITNESS’S MEA CULPA
THIRTY-THREE. CHAD’S BIG TEST
THIRTY-FOUR. “DON’T THEY HAVE A RESPONSIBILITY TO ACT?”
THIRTY-FIVE. SELMA TO STONEWALL
THIRTY-SIX. FRAMING THE ARGUMENTS
THIRTY-SEVEN. KENNEDY V. KENNEDY
THIRTY-EIGHT. “SKIM MILK MARRIAGES”
THIRTY-NINE. “DIGNITY”
FORTY. JUNE IS FOR WEDDINGS
Photographs
A Note on Sourcing and Other Matters
Notes
Photo Credits
Index
ONE
THE “PACT”
This is how a revolution begins.
It begins when someone grows tired of standing idly by, waiting for history’s arc to bend toward justice, and instead decides to give it a swift shove. It begins when a black seamstress named Rosa Parks refuses to give up her seat on a bus to a white man in the segregated South. And in this story, it begins with a handsome, bespectacled thirty-five-year-old political consultant named Chad Griffin, in a spacious suite at the Westin St. Francis hotel in San Francisco on election night 2008.
It was hours before the final votes were counted, but already Chad knew he was about to experience the most bittersweet election of his life. On the suite’s large television screen he watched as Barack Obama stepped onto the stage in Grant Park, Chicago, and into his place in history as the first African American elected president of the United States.
“If there is anyone out there who still doubts that America is a place where all things are possible,” the president-elect boomed to the electrified crowd, “who still wonders if the dream of our founders is alive in our time, who still questions the power of our democracy, tonight is your answer.”
Outside the hotel on the street, a crowd chanted the Obama mantra: “Yes we can!”
Chad wanted to celebrate too. He had been working in Democratic politics since he was nineteen years old. Inspired by then Arkansas governor Bill Clinton, he had worked on the governor’s presidential campaign, then left Ouachita Baptist University in Arkadelphia to follow him to Washington, becoming the youngest staffer in the Clinton White House. He was six feet tall, on the slender side, and with his ubiquitous sports jackets and ties he still looked very much like the Washington staffer he once was.
Obama’s election meant more to him than just a repudiation of eight years of Republican control of the White House. It was not just a turning point in the nation’s fraught racial history, though it was certainly that. It was a signal that, as the president-elect told the Grant Park crowd, “change has come to America.”
But Chad’s eyes kept flickering away from the television and back to his computer screen, where early returns from another race suggested change had not come for everybody, and especially not for people like him.
In a campaign known as Proposition 8, California voters had gone to the polls to decide whether to strip gays and lesbians of the ability to marry by amending the state’s constitution. The referendum had been placed on the ballot after the California Supreme Court found that denying same-sex couples marriage licenses violated their rights—a decision that had briefly allowed same-sex couples to wed in the most populous state in the nation.
Looking on with concern was Chad’s closest friend and business partner, Kristina Schake. With her wavy red hair, curvaceous figure, and wide, engaging smile, she looked like the kind of girl who might have once graced a 1950s pin-up calendar. But at age thirty-eight, she had political instincts every bit as sharp as Chad’s. They had been in business together for close to a decade, and their Los Angeles–based communications firm, Griffin Schake, counted everyone from actor Brad Pitt to California’s first lady, Maria Shriver, as clients. They were known for their ability to raise big-time Hollywood money for national Democratic candidates, and for their expertise in running California’s never-ending ballot initiative campaigns.
The two friends believed that the “No on Prop 8” campaign had been marred by a failure to reach out to California’s African American, Asian and Latino populations and messaging that, while pleasing to the gay community, did little to move voters on the fence. But despite their experti
se, they had not been brought in to help turn the polls around until late in the game. They had cut some last-minute ads that nudged the numbers up, but Kristina could see by the way Chad was tensely raking his hand though his closely cropped brown hair that he didn’t think it was going to be enough.
Part of what made Chad such an effective political operative was his tendency to envision and plan for worst-case scenarios that never materialized. It meant he lived in a perpetually stressed-out world. Kristina had a sunnier disposition, and saw it as her role to provide Chad with some balance. But as more precincts came in, she could see that this time he was right to worry.
Kristina thought back to how hard it had been for Chad to come out eight years earlier. She had known he was gay long before he worked up the nerve to tell her, and he had done so only after she gently nudged him one night as they sipped cocktails on the rooftop of the Standard Hotel in downtown Los Angeles.
“Look around the room,” she had asked. “What’s your type?”
The two were like brother and sister, completing one another’s sentences, there to prop the other up when relationships foundered or other life crises struck. Now she ached for her friend. How could Chad not feel singled out and rejected? Not only had Californians passed Proposition 8 by a margin of 52 percent to 48 percent, but voters in Florida and Chad’s home state of Arkansas had also passed antigay initiatives.
“It feels,” he told Kristina, “like a triple gut punch.”
“That night, we made a pact,” Kristina recalled. “We were going to look for a way to move this cause forward. And if we found it, we would take it.”
Ten days later, Chad and Kristina found themselves sitting in the sun at the Beverly Hills Hotel’s Polo Lounge, where celebrities, agents, and studio deal makers mingle under trellises laden with pink bougainvillea. Joining them at their outdoor patio table were movie director Rob Reiner and his wife, Michele. The Reiners were clients of Chad and Kristina’s firm, but they were much more than that, almost surrogate parents. They had invited the two young consultants to lunch to rally around Chad and commiserate about the election results.
Chad had first met the movie director when Rob was doing research for his film The American President. As one of President Clinton’s press aides, Chad had been tapped to show the director around the White House. Rob loved the movie business, but he was almost as famous for supporting progressive political causes and candidates as he was for movie classics like When Harry Met Sally . . . and Stand by Me.
Rob was impressed with Chad. He had vision and a confidence that belied his youth, and he seemed completely unfazed by Hollywood celebrity. The two had kept in touch, and eventually Rob had convinced Chad to move out to California to run his charitable Los Angeles–based Reiner Foundation and help direct his political giving. Together they had saved three thousand acres of wilderness space in the Santa Monica Mountains from development, and, with others, had battled oil companies in an attempt to pass a tax on extraction in order to pay for clean energy initiatives.
It was Rob who had introduced Chad to Kristina, when he and his wife hired her to help with their “I Am Your Child” campaign. The goal was to convince voters to levy a tax on tobacco products that would pay for an ambitious statewide early childhood development program. Kristina had gone into the communications business after working for the Los Angeles mayor, and with the tobacco companies pouring money into the race, Rob figured he could use all the help he could get. Outspent and against the odds, they managed to actually win the thing.
The Reiners were fighters, whose worldview had been shaped by their own upbringing. Rob, a balding, bearded bear of a man whose booming voice announced his New York roots, had marched with his parents in the 1960s for civil rights and against the Vietnam War, while Michele, a raven-haired former news photographer, was the daughter of a Holocaust survivor. Her mother had spent two harrowing years at Auschwitz, and, growing up, the number the Nazis had tattooed on her arm was a daily reminder to Michele of the very worst that can happen when a group of people is singled out for persecution.
But what, the four friends wondered aloud as they lunched at the Polo Lounge, could be done now about the passage of Proposition 8, and the larger issue of gay rights? Most Americans did not realize that in more than half the states a person could legally be fired, denied a room at an inn or even an apartment just for being gay; no federal law prohibits such discrimination. Gays and lesbians could not openly serve in the military, and there were places in America where they were effectively banned from adopting children and could not as a matter of course make medical decisions on behalf of lifelong partners.
All of those battles were important, but Chad still felt that marriage was the right fight to choose. It steered the conversation toward principles of love and commitment, rather than rights and demands, and it showed that gay and lesbian couples wanted the same things in life as their straight counterparts.
But enduring endless more rounds at the ballot box did not seem a particularly good strategy. Thirty states, including California, had now amended their constitutions to ensure that their bans on same-sex marriage were enshrined in a way that state courts could never undo. A staggering $44.1 million had been spent trying to defeat Proposition 8, and donors were exhausted.
“Every single time the rights of gays and lesbians are put up to a popular vote, big surprise, we lose,” Chad said. “If we can’t win in California, where can we win?”
Just then, an acquaintance of the Reiners named Kate Moulene stopped by their table. They chatted about their kids, who attended the same school, and Michele Reiner promised to call Moulene soon to catch up.
It was a brief conversation, easily forgettable in the bustle of daily chores. Lunch finished up without any real resolution as to the way forward. With time on her hands as she inched her way home through Los Angeles traffic in her black hybrid SUV, Michele dialed Moulene’s number and, almost as an afterthought, filled her in on what the group had been talking about at lunch. Among the possibilities the four friends had discussed was filing a federal civil rights challenge to bans like Proposition 8.
“My ex-brother-in-law is a constitutional lawyer,” Moulene exclaimed. “His name is Ted Olson. And knowing him as I do, I bet he’d be on your side of this.”
“Ted Olson?!” Michele exclaimed. “Why on earth would I want to talk to him?”
Olson, after all, had represented George W. Bush in the disputed 2000 presidential election. On the night the Supreme Court issued the Bush v. Gore opinion that ended the Florida recount and handed Olson his greatest victory, Rob and Chad had endured defeat at the Naval Observatory with Vice President Gore and his family.
The two had left and driven to the Supreme Court, where they watched a lone man holding up a sign that said BULLSHIT, while Olson celebrated over a dinner of steak and caviar with guests that included Kenneth Starr, the special counsel best known for his impeachment prosecution of President Clinton.
And the Bush v. Gore case was just the highlight of Olson’s lifelong service to conservative causes. As a senior Justice Department official during the Reagan administration, he was a leading architect of the president’s legal revolution to ease government regulation, promote school prayer, and end race- and gender-based affirmative action programs. He had successfully defended President Reagan in the Iran-Contra scandal, and aggressively gone after President Clinton during the Monica Lewinsky affair. After helping elect President Bush, he served as his solicitor general. There, he had defended the administration’s controversial war on terror before the Supreme Court.
Olson was also a leader in the Federalist Society, a group that promoted conservative legal theory. In that venue, he had delivered numerous speeches decrying “activist” judges for circumventing the political process by finding rights within the Constitution that were not explicitly spelled out—the very legal thesis espoused by those who argued
that the issue of same-sex marriage should be left to voters and state legislatures. He was, in short, a man liberals loved to hate.
But Moulene felt that conservative caricature didn’t capture the nuance of his thinking. Even though he and her sister had divorced, they had all remained close. Just call him, she urged Michele.
“I’ve watched for twenty years how he treats people,” she would later explain. “His warmth, his acceptance and genuine respect for people—he’s one of the most interesting, intelligent, and decent human beings I’ve ever known.”
Arriving home, Michele filled her husband in on the conversation. Chad and Kristina were driving back to their office when the Reiners reached them on Chad’s car phone. They both burst out laughing when they heard Moulene’s suggestion.
“This sounds crazy,” Chad said.
But Rob was intrigued. Olson was known as one of the best Supreme Court advocates of his generation. Almost despite himself, Rob had a grudging admiration for the man who had, in his words, “kicked our asses” in the deadlocked 2000 election. The tactician in him saw the wisdom in bringing on a lawyer who had won forty-four of the fifty-five cases he had argued before the nation’s high court, while the director immediately grasped the attention-grabbling potential of such a casting call.
It would be an incredibly bold stroke. The gay rights movement was made up of a constellation of established groups that had been fighting for years for equal rights for the “LGBT” community, made up of lesbians, gay men, bisexuals, and transgendered individuals. A federal lawsuit would completely upend the cautious, state-by-state strategy that those groups had been pursuing. They wanted to see gays and lesbians work state legislatures and state courts to win marriage, civil union, or some other form of relationship recognition in thirty states before taking the risk of asking the federal courts to weigh in with a nationwide marriage decision.
At the moment, same-sex couples could marry in only two states, Massachusetts and Connecticut. But Chad and Rob shared a willingness to challenge conventional wisdom, especially if they believed the reward great enough. After talking it through, they decided it was worth gauging Olson’s interest in filing a first-of-its-kind, federal constitutional challenge to California’s same-sex marriage ban. If nothing else, perhaps it could be used as a way to change the political dynamic.