Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  It is true that some subset of men who have sex with other men do not identify as gay, Herek said in answer to Nielson’s many questions on the subject, and it is also true that some people who identify as gay do not engage in gay sex, though that, Herek joked, could also be said of some heterosexuals.

  Judge Walker cracked a smile at that one.

  But Herek said most people—he put the number at 92 percent—are remarkably consistent in terms of their identity and attractions.

  What about studies that showed that a significant percentage of men and women who had a same-sex partner in the past five years also had at least one opposite-sex partner? Nielson asked. And was Herek aware that one of the plaintiffs had once been married to a man?

  Sandy was just grateful that her two boys had left by that point. They had wanted to come on a day when there would not be a lot of media attention, but her happiness at seeing them there had turned to mortification when the testimony turned out to be all about sexuality.

  Given the stigma attached to being gay, Herek told Nielson, it is not surprising that many people try to have a relationship with or even marry a person of the opposite sex before coming to terms with their true sexuality. That is why researchers generally understand sexual orientation as an enduring pattern of attraction and behavior across a person’s life.

  Still, “sexual orientation ranges along a continuum, from exclusively heterosexual to exclusively homosexual, correct?” Nielson pressed.

  The concept, sometimes referred to as the Kinsey scale, was a useful way to look at human sexuality, Herek answered. But he said that while sexuality can be fluid, more so for women than men, the research showed that most people are bunched up at one end of the Kinsey scale or the other.

  “We keep thinking that the judge is going to stop him,” Boutrous said during one recess. “We don’t even dispute what he is saying. Some people change, but most do not.”

  But Nielson, seemingly incapable of letting one question suffice when his checklist contained ten, kept going, even, and somewhat oddly, invoking Judge Richard Posner to support his argument that environmental factors, rather than biology, may play a role in determining a person’s sexual orientation.

  At one level, the invocation made sense: Posner was a Reagan appointee, a prolific writer whose searing intellect had made him one of the most influential appellate judges in the country and an opponent of judicial intervention in the marriage debate. But Posner’s writings about the nature of homosexuality actually undercut the point Nielson was trying to make: It is, “if not genetic, certainly innate,” he had written, a conviction that had only grown stronger with time. “It’s impossible to change,” he said in a phone interview from his chambers. “If it were changeable, everyone would change, because it is a big disadvantage.” Posner had also rejected as “unlikely” another of Cooper’s central arguments, that allowing gays to wed could harm the institution of marriage.

  Still, Cooper on balance thought that Nielson had done what he set out to do. It might not have been scintillating, but ultimately Cooper believed that this would come down not to sex, but rather to how the courts applied law and precedent to this particular set of facts for the purpose of determining the appropriate level of review.

  That was not, however, the thrust of the questions that Andy Pugno, Cooper’s co-counsel, faced at the midday press conference.

  “You say that sexual orientation is a changeable trait,” one reporter asked. “Do you think that your own sexual orientation is changeable?”

  “I’m not going to answer a question like that,” Pugno angrily retorted.

  If homosexuality can be changed, came a follow-up, can the same be said for heterosexuality?

  Pugno, glaring at the questioner, snapped, “I’m not going to argue the case.”

  Shortly before 5 P.M., Nielson finally called it quits. Ethan Dettmer, the Gibson Dunn partner assigned to handle Herek’s testimony, kept his redirect as tight as his direct examination, focusing mainly on the definitional issues that Nielson had raised.

  Researchers also encounter definitional issues in the context of race, Herek told the court. A person considered African American for the purpose of membership in that established suspect class might in fact be of mixed race. And just as it is not always readily apparent that a person is gay, a person’s ancestry may not always be readily apparent from their skin color.

  “They may develop an identity as a member of one race or the other race or as a mixed race individual,” Herek said. “So, no, sexual orientation is certainly not the only area in which things get pretty messy when we are trying to study them.”

  The second point was more commonsensical. If two women want to marry each other, is it “a reasonable assumption” that they are lesbians, Dettmer asked, just as it would be reasonable to assume that if two men want to marry each other they are gay?

  “Yes,” Herek said.

  “No more questions, Your Honor.”

  As Herek stepped down, Judge Walker wryly took note of Nielson’s long-windedness, telling the witness, “I think you win the long-distance award.”

  “All I kept thinking was, ‘When will it end?’” Herek said.

  The professor, along with several of the lawyers who helped prepare him, had repaired to Jardinière, a nearby California-style French restaurant, for a much-needed Friday night drink after court.

  Terry Stewart was there, as was Sarah Piepmeier, the young lesbian on the Gibson Dunn team who had prepped Kris and Sandy and pushed to have Meyer testify on the effects of stigma. The case was consuming all the lawyers on the team, both physically and emotionally, but especially those who were gay.

  “Sarah has slept maybe ten hours this week,” Dettmer said.

  She just shrugged. She’d caught a quick nap the previous night in one of the conference rooms. “We have to win.”

  At one point during the trial, Piepmeier had an irrational urge to introduce her wife to the only female lawyer on Cooper’s team, Nicole Moss. The two dealt with one another regularly and had a cordial relationship, but Piepmeier could not help but take Moss’s position personally. “I wanted to see her reaction to being introduced to a gay woman’s wife,” she said, “and whether she’d recognize that her whole purpose in this case was to deny me that.”

  Sitting through the testimony on stigma, Piepmeier had been forced to confront her feelings in a way that she had not done since coming out as an undergraduate at Wellesley College. She had intuitively understood the burdens of being a lesbian. She’d long felt that she was a disappointment to her family; her mother for years had wondered what she had done wrong as a parent, she said. It was only after Olson became involved in the case that she had begun to refer to her daughter’s sexuality when discussing her with friends. “That really made a difference,” Piepmeier said, “like if he’s okay with it, maybe it isn’t something to hide.”

  But to have Meyer, a straight scientist, say, “What you are experiencing is this,” giving a name to it, had been cathartic in a way that she could not fully explain. His conclusion that gays and lesbians have a reduced sense of self-possibility particularly resonated. In law school, it had been hard to find a role model who looked like her, someone through whom she could envision her own success. “There’s no mirror,” she said.

  Even now, as a thirty-five-year-old up-and-coming associate at a powerhouse law firm, Piepmeier, with her scrubbed skin, cropped hair, and mannish suits, felt set apart in a way that at times made her think that she did not truly belong. When the driver of one of the minibuses that ferried everybody to and from court called her “sir,” she did not even bother correcting him.

  “That happens to me all the time,” she said. “I’m like, really? In San Francisco?”

  Terry Stewart, who did look like her, could relate. Piepmeier could remember watching Stewart argue the California Supreme Court ca
se and thinking, “God, I’d love to meet her someday.”

  But despite her accomplishments, Stewart also had trouble with self-confidence. After law school, she had clerked for Judge Phyllis Kravitch, one of the first women to serve on a U.S. court of appeals. Stewart recalled the judge, out of concern for her, suggesting she see a psychiatrist, because if she persisted in being a lesbian, it could harm her law career. Though Stewart knew the judge meant well, it was crushing coming from a trailblazing woman she greatly admired.

  Now, over drinks, with the second week of trial in the rearview mirror, everyone opened up.

  “The first time I heard a friend call his partner ‘husband,’ I cringed,” Piepmeier said. “It sounded—”

  “Pretentious?” Herek offered.

  “Yes. But then I thought, ‘Why am I, of all people, having a problem with this?’” she said. “I know I’m the victim of internalized homophobia.”

  Herek nodded. Like Meyer, Herek was an expert in stigma, but unlike him he was gay. He confided that he too had trouble calling his husband ‘husband,’ and for the same reason: It seemed like a word reserved for other people.

  Piepmeier and her wife, Emily, had been together for ten years. They had married during the window when it was legal and had made a beautiful home together in Oakland, looking after their five adopted cats and each other. But it was only recently, after becoming involved in the case, that Piepmeier had begun referring to Emily as her wife. She had started with close friends and worked her way up to the lawyers on the team.

  She worried that it was not the panacea that the plaintiffs hoped it would be: Restaurant hostesses still raised their eyebrows, she said, when she told them she was expecting her wife to join her. But she forced herself to move beyond her discomfort.

  “I know that if we don’t claim this language,” she told Herek, “it will never be ours.”

  With the plaintiffs planning to rest their case on Monday, everyone would soon return to the mundane duties of workaday life. Dettmer said he had an actuarial malpractice case. Stewart had a case involving Hare Krishnas at the airport. Piepmeier, who had a patent dispute, kept telling herself to savor these moments.

  “Will we ever do anything as important again?” she wondered aloud.

  Maybe not, Dettmer said. “But did you imagine a few years ago that you’d be working on a case like this one?”

  TWENTY-ONE

  THE PLAINTIFFS REST

  That weekend, Cooper finished delivering the last of the discovery documents that the plaintiffs were entitled to see. The “web of evil,” as Matt McGill liked to call the evidence of animus that the team was compiling from the campaign’s internal communications and public sources, was sorted at all hours of the day and night by a team of young associates who divided it into three piles.

  Incendiary political messaging went into one pile, to be used as evidence that the procreative argument now being offered in court was not what was used to persuade voters. Documents that helped show the connections between the official ProtectMarriage.com campaign and the groups that acted as its foot soldiers went into a second pile. Evidence that showed that ProtectMarriage.com promoted, funded, and participated in the dissemination of antigay sentiments expressed by those groups went into a third.

  The team planned to end their case on Monday morning with a best-of-the-hate video compilation. The idea was to show that whatever the justifications for Proposition 8 now being offered in court by ProtectMarriage.com, an animating feature of the campaign to sell voters on the initiative was a direct appeal to people’s discriminatory impulses.

  As Chris Dusseault put it, “Don’t tell me, Chuck Cooper, that this campaign was all about love and granola, when your campaign paid for this stuff.”

  The job of refining it all into a concise video reel that Dusseault could present to the court had fallen to Piepmeier and Ted Uno, a forty-one-year-old attorney from Boies’s firm. It was intense work, against a suboptimum deadline; under normal circumstances this would have been done months before trial.

  “I spent yesterday looking through material of people who are antigay on the Internet,” Piepmeier said on Sunday. “By the end of the day, I was in a horrible mood, and it wasn’t until later that I realized why. I’m reading all this stuff, and it’s different from reading material about semiconductors. They are saying it about me. That I am a sinner, that I am depraved.”

  Both Dusseault and Terry Stewart were looking forward to seeing the fruits of the two younger lawyers’ labor. By now, sleepless nights and shared takeout had given them all a better understanding of one another, and preconceptions had fallen by the wayside.

  Piepmeier had been surprised by how passionately Olson felt about this cause. Until the Proposition 8 case, she had assumed she knew everything there was to know about the conservative star at her law firm. “It’s reminded me not to judge a book by its cover,” she said.

  And Stewart now knew that she had been wrong to think that as a straight white guy, Dusseault had no skin in the game. The two had bonded when he shared with her how offended he was by the argument that Prop 8 was rational because children do best when raised by their biological parents. His wife had lupus, which can flare up and cause complications in pregnancy, so their children were adopted.

  Still, this was a diverse group, conservative and liberal, gay and straight, and they did not always see things the same way, a fact that became readily apparent after Piepmeier and Uno screened the reel for Dusseault.

  “You don’t like it,” Terry Stewart said afterward.

  “There are parts of it I like,” Dusseault protested.

  The presentation mixed official campaign ads circulated to mass audiences with material from what the team had taken to calling the unofficial campaign, where more pointedly antigay messages were disseminated to targeted groups of voters. Dusseault liked the footage taken from religious rallies in the weeks leading up to the election that had been broadcast by satellite to congregations around the state. The simulcasts featured pastors from some of the biggest evangelical churches in the country. One speaker claimed that same-sex marriage was a tragedy on par with the 9/11 terrorist attacks. Another said that allowing children to be raised by same-sex couples turned “nature on its head.” A third wondered how a child with two moms would learn to “change the oil,” and a fourth charged that permitting gay couples to wed would result in pedophiles being allowed to marry seven-year-olds, mothers their sons, and even legalized bestiality in which men would be permitted to marry horses.

  Other excerpts featured prominent black ministers attacking gays and lesbians for equating their fight with the civil rights battle waged by African Americans. Internal e-mails showed that religious leaders within the Prop 8 campaign understood that, as one article they circulated among themselves put it, “one of the most effective morality-based arguments for same-sex marriage, the one that persuades more people than any other argument, is the one that equates opposition to same-sex marriage with the old opposition to interracial marriage.”

  In a confidential memo dated one month after the passage of Prop 8, the National Organization for Marriage spelled out its pushback strategy. Religious black voters might vote Democrat, but they tended to be socially conservative, and the organization described its goal in clear terms: “Drive a wedge between gays and blacks—two key Democratic constituencies. Find, equip, energize and connect African American spokespeople for marriage, develop a media campaign around their objections to gay marriage as a civil right; provoke the gay marriage base into responding by denouncing these spokesmen and women as bigots.”

  The legal team did not have the benefit of that explosive document; it would not emerge for another three years, when it was unsealed as part of a campaign finance investigation into the organization. But the simulcast vividly demonstrated how it worked on the ground in California.

  Bishop Harry
Jackson, a senior African American pastor of a three-thousand-member Pentecostal church in Maryland, told Tony Perkins of the Family Research Council that it offended him that homosexuals were claiming an affinity with blacks forced to sit on the back of a bus, since “I didn’t choose to come into the world and live a deviant lifestyle.” Don’t compare “my skin with their sin,” seconded the Reverend Dwight McKissic, a prominent African American Southern Baptist minister from Arkansas.

  It was good stuff, Dusseault thought, but he wanted it cut down. Keep the religious material to the “most crass stuff,” he told the other lawyers. “I’m wrestling with this because our position is that the other side can believe whatever they want.”

  “You can’t put discrimination on trial without showing the roots of it,” Stewart argued. “I understand that at the beginning we were like, ‘We don’t want to touch religion—it’s the third rail.’ But—”

  “How do we take it out of the context of religion when a lot of the impetus was religious beliefs?” Piepmeier finished.

  Dusseault thought it over and came around. People are entitled to believe what they want, but when they attempt to legislate their beliefs, the courts could certainly scrutinize what motivated them. “Included within animus is moral disapproval based on religious belief,” he agreed.

  But he was more concerned about some of the official ProtectMarriage.com ads that the group wanted to use as evidence of animus. One featured a pigtailed little girl telling her actress mother, “Guess what I learned in school today? That a prince can marry a prince, and I can marry a princess!” Another warned that “opponents of Proposition 8 said gay marriage had nothing to do with schools. Then a public school took first graders to a lesbian wedding, calling it a teachable moment.”

  They all understood Dusseault’s hesitation. The danger was that some judge or justice down the line might be convinced by the ads. Prentice himself had boasted of the power of the argument that they now proposed to use against the proponents in remarks to the conservative California Family Council that the team had unearthed. “All it took when we asked someone, do you plan to vote yes, plan to vote no, or are you somewhere in the mushy middle, if they weren’t a solid yes, 80 percent of the time all it took was to tell them did you know that every public school child will be taught this?” he said. “Oh, and they would flip.”