Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  By midafternoon Sunday, Olson was satisfied. “Fantastic,” he said, coming around the table to hug Sandy. “We can write all the legal briefs in the world, but what you do is explain with passion and from your heart,” he said. “If it goes like this in court, and I think it will, and maybe even better, it will be wonderful.”

  Later that afternoon, he did a practice run of the fourteen-minute opening statement he had written out in longhand on a yellow legal pad. Tears welled in Chad’s eyes as Olson spoke of the painful treatment that gays and lesbians had endured over the years, “targeted by the police, harassed in the workplace, censored, demonized, fired from government jobs, excluded from the armed forces, arrested for their private sexual conduct and repeatedly stripped of their fundamental rights by popular vote.”

  All Proposition 8 had done, he declared, was to inflict upon gays and lesbians “badges of inferiority that forever stigmatize their loving relationships as different, separate, unequal, and less worthy.”

  Walking out the door that night, Olson seemed confident that would all soon end. “I’m as ready as I can be,” he said.

  NINE

  “ALL RISE!”

  Precisely at 7:37 A.M. on the opening day of the trial, the plaintiffs emerged from the rented Victorian home that Chad, Kristina, and Adam were sharing with Jeff and Paul. The camera crews huddled outside in the chill of a typically overcast San Francisco morning snapped to attention.

  Jeff had been chosen to give the brief statement that would come to dominate the early morning news cycle. Rehearsing earlier with Kristina, he had been overcome, tears spilling uncontrollably down his cheeks. “Smile,” Chad whispered as they walked out the door, and, gripping Paul’s hand, Jeff did his best to keep it together.

  “We’re all Americans who simply want to get married, just like everyone else,” he said, his voice steady. “We believe in our Constitution, and that the courts will lead the way to equality like they have so many times in the past.”

  Sixty seconds later, they were back in the sanctuary of the Victorian’s renovated kitchen, where coffee and pastries awaited. “Everything else will be easier from here,” Chad promised, but of course they all knew that wasn’t true.

  For all the minute-by-minute planning that had gone into the day, it had already been a rocky morning. The Today show had abruptly yanked what was supposed to have been an exclusive with Olson, Boies, and the two couples that it had planned to air that morning to its nearly six million viewers. The show had been pretaped over the weekend. Kristina, shaking her head in disbelief, wondered aloud whether the cancellation was tied to the fact that Boies, without consulting AFER, had agreed to appear on a competitor’s Sunday show that, as she put it, “hardly anybody watches.” But there was no time to dwell on lost opportunities.

  Tam, the Proposition 8 proponent who had tried to withdraw from the case, had been located and served with a subpoena the night before. “YES!” Chad had e-mailed the lawyers. “You can run but you can’t hide.” But there was still no word from the Supreme Court about whether the cameras would be rolling for Olson’s opening statement and the plaintiffs’ testimony.

  From the courthouse came reports that a man in a wedding dress had shown up at the vigil, catnip to the camera crews stationed outside but exactly the kind of visuals Chad wanted to avoid. For too long, he felt, the gay rights movement had been defined by flamboyant, off-putting imagery. Men wearing leather chaps and bare-chested women on motorcycles at gay pride parades made the news, but did not reflect the reality of modern gay life, a reality in which people dressed for work and came home to families just like their straight counterparts. Kristina could only hope that the team’s plan to use the allure of Hollywood to divert the cameras’ attention—Lance Black had been dispatched to the vigil to give a speech—would work. Because right now, she had her hands full.

  Adam Umhoefer, the AFER staffer who had formed the closest bond with the plaintiffs, had already left for the courthouse. It was as personal for him as it was to them; he had yet to find the right person, but when he did, he wanted to be able to marry him. On his way out the door, he had tucked a talisman in his pocket: a wedding ring, his dad’s, who had been killed by a drunk driver when Adam was fourteen.

  That left Kristina to keep everyone on an even keel.

  Sandy kept tugging uncomfortably at the coral pink jacket the team had chosen over her favored black. Paul, who couldn’t seem to keep his left leg from buckling slightly as he paced the kitchen, declared that he was a “wreck.” He and Jeff had stayed up late the night before, reminding each other of why they had decided to take part in the case. “I love you,” Jeff had told Paul before they finally fell asleep, and really it was as simple as that.

  But it was one thing to agree in principle to be the faces of the litigation. It was another thing altogether to have their most intimate thoughts exposed in a trial they had never thought would happen in the first place. What would Paul and Jeff’s neighbors, the ones who had put signs supporting Prop 8 in their yards, think? And what about Sandy’s mom in Iowa? One of the first questions she had asked after Sandy told her about Kris was, “Is she at least Catholic?” She had tried to be supportive, but their relationship still confused her. She frequently questioned her daughter’s happiness, unable to understand why she did not just pursue a relationship with a man. And she worried about her church friends finding out that her daughter was a lesbian.

  There was just no knowing how the spotlight of this trial might disrupt their lives, and so they did what people often do when faced with uncertainty: They distracted themselves with minutiae in order to avoid thinking about boarding the minibus that was waiting outside to take them to the courthouse and a future from which there would be no turning back.

  Ties were knotted and double-knotted, straightened and then discarded. Paul’s was too narrow, Kristina decided. Chad fretted about the proper camera-friendly color of his before Kristina came down firmly on the side of red. “Love it—I’m ready to vote for you, Governor!”

  Facebook pages and e-mails were checked. A blow dryer was fetched to remedy a water spot on Kris’s shirt. No sooner was it dry than she grabbed a sponge and began wiping crumbs and coffee stains off the kitchen counter. “This I can control,” she announced. “This will look good when I’m done, when everything else is just”—she paused, searching for the right word—“nebulous.”

  And then, too soon, it was time to go. As they headed across town, a manic humor took hold, the way it does when people are trying to keep dread from swallowing them. “What if we just didn’t show up?” Chad joked. Quoting from Tam’s motion to withdraw, he added, “I am tired! I want peace!”

  “Yeah!” Sandy yelped. “Road trip to Vegas!”

  But as the bus passed City Hall, where Harvey Milk had been shot thirty-one years earlier, everyone grew silent. The police presence grew heavier as they turned toward the federal courthouse. Gazing out the window, Chad could see by the national cable and network satellites lining the sidewalk what a friend from the Obama White House had meant when he e-mailed earlier that “you own the news cycle this morning.”

  “Wow, look at all the camera trucks,” he said, clasping his hands together, fingers digging into knuckles.

  Then they were out and moving fast, past the crowd waving AFER-supplied American flags and signs emblazoned with lines from past Supreme Court rulings like SEPARATE IS UNEQUAL and MARRIAGE IS A BASIC CIVIL RIGHT. One minute they were shedding their shoes and walking through a metal detector, and the next they were hustled onto a freight elevator off-limits to the public, down a corridor, and into an empty courtroom just down the hall from Judge Walker’s.

  Minutes earlier, at 8:02 A.M., the Supreme Court had issued an order on Judge Walker’s plan to broadcast the trial on YouTube. Notwithstanding Boies’s prediction to the contrary, the justices had decided that Cooper’s argument merited their attention.
By a vote of 5–4, with Justice Kennedy casting his with the conservatives, the broadcast was temporarily halted until Wednesday, when the Court was expected to rule on the merits of Cooper’s argument.

  Chad, learning the news, hurriedly excused himself. He and Kristina had hatched a contingency plan to have Olson give a dramatic reading of his opening statement so that the networks would still be able to carry it on the nightly news, but it needed to be put into action.

  That left just the two couples in the quiet of the empty holding area. They laughed about some of the questions that reporters had shouted at them—“‘Is it an emotional experience?’” Paul mimicked. “Um, yeah”—until a representative from the U.S. Marshals Service came in to talk about the thing they had been trying hardest all morning to shove to the edge of their consciousness.

  “As plaintiffs, you are now under our protection,” the marshal said. “If you get anything—it doesn’t have to be, ‘I’m going to kill you,’ but anything worrisome—let us know.”

  It was meant to be reassuring, but it had the opposite effect. One didn’t have to go far back in history to find people who had manned the civil rights barricades only to meet a violent end.

  “Trying to keep my mind off of it,” Jeff whispered to Paul, who sighed.

  “Very hard to do,” he said.

  Sandy and Kris just looked stricken. They didn’t exchange a word, but they both thought about their boys.

  “All rise!”

  Everyone rose as Judge Walker, a burnt orange tie peeking out from underneath his black robe, took his seat in front of the expanse of cream-colored marble that rose from floor to ceiling behind him. He peered over his spectacles at the army of lawyers arrayed before him.

  “Now, I trust that you all have had a quiet and restful few days,” Walker cracked, with the droll sense of humor that would become his trademark as the trial got under way. “I can assure you, I have.”

  The packed courtroom erupted in laughter. Cooper, wearing a dark suit and a deep green tie, sat to the judge’s right with his core team. It was an impressive group of lawyers that included a former clerk of Justice Kennedy’s, an experienced trial attorney who had won verdicts totaling hundreds of millions of dollars on behalf of clients, and a former deputy attorney general and associate White House counsel from President George W. Bush’s administration. Several of the campaign’s official proponents were in court, as were Cooper’s co-counsels, the conservative Alliance Defense Fund, and Andy Pugno, the Prop 8 campaign’s chief lawyer.

  To the judge’s left, in the first row on the plaintiffs’ side of the courtroom, were Paul and Jeff; Sandy and Kris; Chad and Kristina; Olson’s wife, Lady; Bruce Cohen and his husband, Gabe Catone; and Adam. Behind them were Lance Black, Cleve Jones, Rob and Michele Reiner, and two of their kids—or, as Jones put it, “the motley crew that started all this.”

  The Reiners had flown in the night before. “I can’t wait, I can’t wait to see these guys go at it,” Rob had exclaimed to Chad as he toured the Gibson Dunn offices. Now, looking over at her husband, Michele Reiner widened her eyes, as if to say, “Here we go,” while in front of them, Kristina gave Chad’s shoulder a quick squeeze.

  “Now, you probably know, we received this morning an order from the Supreme Court, which has stayed the transmission of any audio or visual images of this case until at least 4 P.M. eastern time on Wednesday,” Judge Walker said.

  He reiterated, somewhat defensively, his position that broadcasting the trial via YouTube did not require public input. “Nonetheless, we have received a very substantial number of comments in response to that change. As of—as of Friday, 5 P.M. Friday, we had received 138,574 responses or comments.”

  Chad, whose instigating role in that paper onslaught remained hidden, kept a poker face as the judge continued, speaking to the court but also, it seemed, to the justices: “And if the results are any indication of where sentiment lies on this issue, it’s overwhelmingly in favor of the rule change.”

  Ted Boutrous jumped up, asking that the cameras continue to record the proceedings while they awaited the Supreme Court’s guidance on whether the video could ultimately be broadcast. Walker granted the motion over Cooper’s objection. With that piece of housekeeping out of the way, it was time to delve into the real legal issue at hand.

  “Mr. Olson, you are going to make the opening statement for the plaintiffs.”

  “Thank you, Your Honor,” Olson said, then plunged in.

  “This case is about marriage and equality. Plaintiffs are being denied both the right to marry and the right to equality under the law. The Supreme Court of the United States has repeatedly described the right to marriage as one of the most vital personal rights essential to the orderly pursuit of happiness, a basic civil right, a component of the constitutional rights to liberty, privacy, association, an intimate choice, an expression of emotional support and public commitment, the exercise of spiritual unity, and the fulfillment of one’s self—”

  Olson was just hitting his stride when, less than a minute into his prepared statement, Judge Walker did something unexpected. He interrupted him, hammering him with one skeptical question after the next. It was, thought Matt McGill, the type of barrage one might expect from the justices of the Supreme Court. But it was unusual for a trial judge, and not something they had prepared for in the practice sessions over the weekend.

  “Now, does the right to marry, as secured by the Constitution, mean the right to have a marriage license issued by the state?” Walker asked.

  Olson said he believed it did, leading Walker to another question.

  “Could the state get out of the marriage license business?”

  “If California allowed people to marry without a license,” Olson conceded after some back-and-forth, “which is what I think is part of the import of your suggestion, and said that the only thing we’re regulating is something called domestic partnership, and everybody can do that, yes, that might mean that California is treating people equally.” But, he said, “that will never happen.”

  “Why?” the judge wanted to know. “That would solve this problem, wouldn’t it?”

  Olson said that while he did not hold himself out as a political prognosticator, he suspected that the people of California would not be willing to abandon an institution that means a great deal to people, one that indeed is so important that the defenders of Proposition 8 maintain it must “be preserved for opposite-sex couples and withheld from same-sex couples.”

  “Well, but the proponents argue that marriage has never been extended to same-sex couples in the past, and so we’re simply preserving a tradition that is long established and that is, indeed, implicit in the very concept of marriage,” Walker countered.

  Olson cited the California Supreme Court decision that found that same-sex couples had the right to marry under the state’s constitution, but Walker was unimpressed. This was a federal court, and he wanted to know what had changed so that now the U.S. Constitution’s due process and equal protection guarantees must be understood to protect what many states had always forbidden.

  “What changed was Proposition 8, which isolated gay men and lesbian individuals and said: You’re different,” Olson replied. “It put them in a different category. That’s discrimination.”

  Would the evidence show that Proposition 8 was motivated by an intent to discriminate against gays and lesbians? Walker demanded. “The evidence, what’s the evidence?”

  “The evidence will show that each of the rationalizations for Proposition 8, invented, invented by its proponents, is without merit,” Olson said. “They mention procreation. Procreation cannot be a justification, inasmuch as Proposition 8 permits marriage by persons who are unable or who have no intention or no ability whatsoever to have children or produce children.

  “Proposition 8 also has no rational relationship to the parenting of children,” h
e continued, “because same-sex couples and opposite-sex couples are equally, in California, permitted to have and raise children in this state. The evidence in this case, from the experts, will demonstrate that gay and lesbian individuals are every bit as capable of being loving, caring, and effective parents as heterosexuals. The quality of the parent is not measured by gender, but by the content of the heart.”

  “If same-sex couples are permitted to enter this institution, this esteemed institution of marriage, doesn’t that change the institution?” Walker asked.

  “No,” Olson answered. “It will fulfill the institution.”

  Prior to the Loving decision, President Obama’s biracial parents would not have been able to marry in Virginia, Olson noted. “The history, a point I was just about to make, of marriage has evolved. It has changed to shed irrational, unwarranted, and discriminatory restrictions and limitations that reflected the biases, and prejudices, and stereotypes of the past.”

  It went on like that, until Walker finally let Olson alone long enough to make the points he had come to make. Convicted criminals, substance abusers, and sex offenders are all legally permitted to marry in California, he declared, just as long as they aren’t gay.

  Olson’s own mother, when he first told her he was taking the case, had questioned him as to why the voters of California shouldn’t have the final say in the matter. He had convinced her of the merits of his argument by explaining that while marriage is traditionally regulated by the states, the state’s power is subject to constitutional limitations, and it was a point he knew he needed to hit hard now.

  “We wouldn’t need a Constitution if we left everything to the political process, but if we left everything to the political process, the majority would always prevail, which is the great thing about democracy, but it’s not so good if you are a minority or if you’re a disfavored minority or you’re new or you’re different,” Olson declared, his voice growing at once softer and more emphatic.