by Becker, Jo
“We bet the campaign on education,” Frank Schubert had told the New York Times.
It was Dusseault’s job to ensure that the evidence they introduced benefited only the plaintiffs, and the gay lawyers knew that it was harder for them than it was for him to be objective about what met that test. “I’m so personally invested in this case that I take things personally,” Piepmeier said. “That’s why I think it’s great that our team is so diverse.”
Uno, like Piepmeier, was gay. He and his partner had been together for fifteen years and were raising five children. He was a Japanese American, a man of faith who said he knew that his grandmother feared for his soul. He had tried to take those varying viewpoints into account when putting together the reel.
Now he told Dusseault how important it was to demonstrate to the court and the public that the very argument that the campaign had found so effective and that Cooper and his team clearly believed could pass the animus smell test—they had played similar ads himself for the court—was in fact discriminatory. “If you get rid of the more moderate messages, you don’t understand how insidious the discrimination is,” he said.
Stewart tried to put herself in Dusseault’s shoes. “Chris is, well, he’s not queer.”
“Not yet!” Uno said with a laugh.
So the three of them stepped back and tried to explain to him what seemed so obviously hostile to them.
“Maybe this comes from my being a homosexual,” Uno said, “but if I were to say to you that it offends my sensibilities for you to teach children that it’s okay for blacks to marry whites, you’d think that I was the most racist person in the world.”
Dusseault also found the ads offensive. But he worried that not everyone would. Children that age aren’t taught about straight marriage, he said.
That set the gay attorneys off. They all began talking at once about how marriage is ubiquitous in the cultural lives of children, in the fairy tales that they read, in the roles they play as ring bearers and flower girls. No one would think twice about bringing a five-year-old to a wedding, Stewart said. What’s different here, Uno chimed in, is that otherwise reasonable people don’t want children to know about one specific type of marriage.
“Some of our own family members,” said Piepmeier.
“And if you are in mine, many,” Uno said.
Suddenly, it clicked for Dusseault in a way that it had not before. What explanation could there be for the fact that people treated two similar events, the wedding of a straight couple and the wedding of a gay couple, so disparately? As Uno put it, “People may not see it as bigotry, but that is prejudice.”
Framed correctly, the ads offered powerful evidence of animus, Dusseault realized. He would recommend to Olson that the ads could—and should—stay.
The following morning in court, Cooper’s team focused on distancing Prentice and the rest of the proponents from the religious simulcasts, which clearly worried them more than the official ads that Dusseault played. The campaign had not “produced” the simulcast events, and Ron Prentice had not attended them and did not know what was said there, protested Nicole Moss, the lawyer from Cooper’s firm who had been tasked with distancing Tam from the campaign.
“The campaign does not dispute that these simulcasts were paid for with money that was raised by ProtectMarriage.com,” she said. “But there is no evidence that they had control over the content.”
Dusseault had anticipated this line of attack, and had a slew of documents at the ready. In his deposition, Prentice had acknowledged that the simulcasts had been organized by the “Pastors’ Rapid Response Team,” which the plaintiffs had already established was a crucial component of the campaign’s grassroots apparatus. ProtectMarriage.com had paid close attention even to small details involving the simulcasts: In one e-mail that Cooper had been forced to turn over, Andy Pugno complained that another group was incorrectly being given credit for the simulcast in advance promotional material. “All of the CWA references needed to be taken out,” Pugno wrote. “‘CWA presents’ should read ‘ProtectMarriage.com presents.’”
Another e-mail exchange showed that Prentice had been given an advance four-page outline of the agenda of one of the simulcasts by its chief organizer, an evangelical megachurch located just outside of San Diego headed by Pastor Jim Garlow. Garlow had acted as the master of ceremonies, charging that if same-sex marriage passed, polygamists would be “waiting in the wings.”
But it was a postelection e-mail, between Prentice and Garlow, that was perhaps most damaging. Moss, jumping up to object, protested that the document was irrelevant given that it was dated on November 16, 2008, days after the election.
“Yes,” Judge Walker said. “I noticed that.”
“Your Honor, if I may, I think I can explain the relevance,” Dusseault said. “It is a postelection document. And it’s a postelection document in which the head of ProtectMarriage.com is trying very hard to make sure that these simulcasts don’t get out to the public.
“And this is about a Dr. Phil show, and what’s going to happen on a Dr. Phil show,” Dusseault continued. “And what Mr. Prentice says is, ‘We must control the message from the simulcast, Jim. I don’t see how using any portion of it will not permit the show to direct the message to the religious bias.’
“We think it’s directly relevant, Your Honor, that ProtectMarriage.com, after the election, was trying to make sure that a national audience, like an audience of the Dr. Phil show, didn’t learn of this religious bias. And that’s Mr. Prentice’s word for it, not mine.”
Walker agreed. The document was in.
At 11:06 A.M., Dusseault signaled that his presentation had come to a close. “Thank you, then, Your Honor, I will hand over the reins to Mr. Boies.”
“Very well,” Judge Walker said. “Mr. Boies?”
“Purely ceremonial, Your Honor,” Boies said. “The plaintiffs rest.”
TWENTY-TWO
COOPER’S TURN
Like Olson, Cooper had thought hard about putting Ron Prentice, the executive director of ProtectMarriage.com, on the stand. Over the weekend, he had also notified the plaintiffs that he might call Frank Schubert, its chief political operative. Having someone other than Tam speak on behalf of the campaign and its motivations had its attractions. But Cooper ultimately decided against the move for two reasons.
First, he did not want to take a position that was inconsistent with his overarching legal argument, which was that seven million California voters could not all have been irrational or bigoted. The campaign’s messages, the mindset of its proponents and operatives—all meaningless, in Cooper’s view. The Supreme Court’s jurisprudence in this area was hardly a model of clarity, but as he read the Romer decision, as long as he could show that banning same-sex marriage served some legitimate interest, it should not matter whether the campaign was run by “the devil incarnate” or “supported by some people for completely evil reasons.”
Second, Cooper did not want to give his opponents an opportunity to go on a fishing expedition. That very morning, Ted Boutrous had argued that the claims of privilege that had shielded Schubert’s documents and that Schubert had invoked seventy-six times in refusing to answer questions during his deposition would go out the window if he took the stand. The limited rebuttal value of calling either man could be offset if it entitled the plaintiffs to a wide-ranging cross. “Whatever good we could get out of Prentice or Schubert,” Cooper later explained, “wasn’t worth the risk we were running.”
And so shortly before noon on the tenth day of trial, Cooper’s team called the first of only two witnesses: Kenneth Miller, an associate professor of government at Claremont McKenna College.
Cooper’s top priority remained keeping the court from determining that gays and lesbians met the test for heightened scrutiny. His first line of defense was precedent: The Ninth Circuit, in a 1990 case called High Tech Ga
ys v. Defense Industrial Security Clearance Office challenging the Pentagon’s policy of denying security clearances to people who were known or thought to be homosexuals, had ruled that the proper standard of review for laws that target gays and lesbians was the lower, rational basis bar: “Homosexuality is not an immutable characteristic,” the court had found, but rather a behavioral choice, and “homosexuals are not without political power.”
But with Olson arguing that the appeals court decision predated the Supreme Court’s two landmark gay rights rulings—indeed, it cited the since overturned Bowers v. Hardwick case upholding laws criminalizing sodomy—Miller was Cooper’s insurance policy. He was there to rebut Segura’s testimony that gays and lesbians lacked the ability to seek redress in the democratic process.
It did not get off to a smooth start.
Miles Davis, the legendary jazz musician, once said, “Don’t play what’s there, play what’s not there.” It might have been Boies’s motto as well.
Miller specialized in the politics of California and was the author of two books, one on the initiative process called Direct Democracy and the Courts, and another called The New Political Geography of California. But he had written very little about gays and lesbians, and compared to Segura’s twenty-five peer-reviewed articles and his position as the codirector of the Stanford Center for American Democracy and a member of the editorial board of the American Journal of Political Science, his curriculum vitae was lacking.
“He’s not an expert—I want to have everything we can say about that,” Boies had told his team over the weekend. “What he hasn’t been. What he hasn’t studied.”
Because juries tend to give expert opinions great weight, courts are required to act as gatekeepers to ensure that expert testimony is helpful to understanding the matter at hand and based on a reliable, intellectually rigorous foundation. Now, armed with the information he had requested, Boies challenged Miller’s qualifications.
Miller acknowledged to Boies that he had not written any peer-reviewed articles on the subject of gay and lesbian political power besides one piece in a French journal; there, he had taken the counterintuitive position that the losing battle they had fought against Proposition 8 actually demonstrated their political muscle. He had not extensively studied the history of discrimination against gays and lesbians. And during his deposition, he had been unable to name the first openly gay officials elected to office.
“He doesn’t even know many of the key facts and people involved,” Boies protested.
Walker, though, was understandably reluctant to knock the witness out. The Supreme Court had made clear that such a move should be the exception, rather than the rule; vigorous cross-examination and presentation of contrary evidence “are the traditional and appropriate means of attacking shaky but admissible evidence,” the justices had said. Implicit in Miller’s knowledge of California politics and initiatives was an understanding of the different groups that made up the electorate, the judge decided. That qualified him to speak to the subject at hand.
“You may proceed,” Walker said.
But the seed had been planted, and the spat over Miller’s qualifications was featured nearly as prominently as the substance of what he had to say in much of the media coverage of the defense’s opening day. And the testy credentials confrontation was just a taste of what Boies had in store for Miller, “the equivalent of David Boies saying at recess, ‘I’ll see you after school,’” as Yusef Robb put it later that night in the war room.
Miller’s thesis was that the political power of minority groups should be measured in terms of money, access to power, and the ability to build alliances. Gays and lesbians, he told the court, had demonstrated all three.
Where Segura had looked at indicia such as the fact that gays and lesbians were more likely than any other minority to be the target of hate crimes, Miller noted that a record $83 million was spent on the Proposition 8 campaign, with supporters of same-sex marriage slightly outspending opponents. A “who’s who of Silicon Valley” that included corporate giants like Google had sided with gays and lesbians in opposing Proposition 8, he told the court, as had some of the state’s most powerful unions, the state Democratic Party, and twenty-one of twenty-three of the state’s largest newspapers.
Rather than focus on the repeated political losses that gays and lesbians had suffered in ballot initiatives across the nation, Miller talked instead about the ballot measures they had been able to beat back in California. One was a 1970s initiative that would have allowed public schools to fire teachers who promoted homosexuality; another was a 1980s push to quarantine people with HIV/AIDS.
Another measure of progress in California, according to Miller, was the fact that Proposition 22, the law voters passed in 2000 to ban gays and lesbians from marrying, passed by a wider margin than Proposition 8, which changed the California constitution after that law was struck down.
One measure of political powerlessness, according to the Supreme Court, is the inability to attract the attention of lawmakers. Where Segura had noted that gays and lesbians had been unable to secure federal legislation that would protect them from discrimination in the employment, housing, and public accommodation arenas, Miller talked about the numbers of large companies that provided benefits to same-sex partners.
And where Segura had focused on the failure of Congress to repeal the law banning gays and lesbians from serving openly in the military, Miller pointed to the 100 percent rating given to more than half the California Legislature by the largest gay rights groups in the state, and the recent passage by Congress of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.
That last reference infuriated Mary Boies, herself a lawyer, who had a note passed to her husband. The law, which provided for additional federal penalties for hate crimes based on sexual orientation, was named in part after a Wyoming college student who was taunted, beaten, and left to die after attending a gay awareness meeting on campus. Witnesses said he was found tied to a ranch fence post, his head bathed in blood except where tears running down his face had washed it away. It had taken Congress multiple tries and more than a decade to pass the statute. If anything, the need for such legislation was an example of gay vulnerability, she thought.
“This witness cites the Matt Shepard hate crimes act as one indication of gay political power,” she wrote. “Does [sic] statutes like Megan’s Law indicate that little girls who are raped and killed have political power?”
Boies once told Terry Stewart that the key to a good cross-examination is to attack the witness’s credibility, win whatever concessions you can that help your case, and then get the person off the stand. “You have to control the witness on cross-examination,” he had explained as he prepped over the weekend, “and the only way to control the witness is by keeping your question precise.”
Over lunch, he held forth on his plan for Miller. While Olson craved solitude before performing in court and often retreated to the lawyers’ lounge to eat, Boies rolled with an entourage that included a driver and his own press person. He spent most days at a round table in the cafeteria, talking to reporters and fans while consuming a peculiar and never-deviating meal: the torn-off crust of a loaf of round sourdough bread fetched daily by the driver, and a slice or two of apple pie.
“Everything that they’ve said so far can be taken care of with a few questions,” he said. “All those groups of allies they mentioned—they also were supportive of African Americans, weren’t they? Yet you don’t have any doubt that African Americans lacked political power, do you? Gays and lesbians lost Proposition 8, didn’t they? And not only did they lose in California, but they have lost in every single state where there’s been a ballot initiative over marriage, correct?”
Boies organized his cross-examinations by the points he wanted to make, with backup material readily accessible in tabbed and color-coded binders. Any attempt at evasion
was interrupted with a curt command to answer “yes, no, or I don’t know,” and, when Boies was truly exercised, a demand that the witness repeat his question. Miller got the full treatment when court resumed that afternoon.
The first slip-up came within minutes. Expert witnesses must prepare a report summarizing their conclusions and analysis for the court. Boies was in the midst of listing all the facts that Miller had not known when his deposition was taken prior to the start of the trial, but that were now contained in the expert report Miller had since submitted.
When Miller was deposed, he had not known whether gays and lesbians were underrepresented in political office, had not accurately described the term “gay bashing,” had not been able to say how many states (just twenty-one of fifty) had acted to prohibit employment discrimination against gays and lesbians, and had not reviewed academic books dealing with minority prejudice, to name a few.
Listening, Miller grew defensive. “What I wrote in my report is something I investigated myself,” he insisted.
Something about the wording stopped Boies. It is a given that expert witnesses are supposed to conduct independent research; they cannot simply be a paid mouthpiece for one side or the other.
A willingness to deviate from his preestablished plan was a Boies trademark. He likened questioning a hostile witness to skeet shooting: “You’ve got your gun cocked, but you have to wait until the target is up in the air to decide exactly when and how to take your shot.” Now, taking aim, he probed further.