Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  “And you didn’t go over it with counsel at all; is that your testimony?”

  David Thompson was on his feet, objecting. Generally, communications between a lawyer and an expert witness are considered privileged, meaning that they do not have to be disclosed. But Judge Walker agreed that Miller had “opened up the door to the issue of what it is that he himself investigated and did not personally investigate.”

  Thompson sat down. “No objections to that, Your Honor.”

  “I investigated everything that was in my report,” Miller answered.

  “Personally?” Boies asked.

  “Personally.”

  Boies flipped through his binder until he found the materials that Miller had relied upon. “Were some of these materials provided you by counsel, or did you find all of them yourself?”

  Miller was looking increasingly uncomfortable. “Um, most of these I found by myself.”

  “That wasn’t my question, sir,” Boies said, managing to make the honorific sound like a four-letter word. “Remember my question?”

  By now, Boies had closed the distance between himself and the witness. “Circle the ones that were—that you found yourself, were not provided by counsel,” he demanded.

  More than fifteen excruciating minutes ticked by, the sense of suspense building as Miller sat hunched over his report, pen in hand, Boies crowding him from the front and Thompson at his side. The only sound in the courtroom was the rustle of pages as Miller flipped through them, save for thirty seconds of crunching noises that resulted in a deputy scolding Rob Reiner for smuggling snacks into the courtroom.

  At one point Miller told Boies he was having difficulty recalling who had found what. Chad grinned. “Like a sitting duck in front of a machine gun” was the way Chad would later describe Miller’s demeanor to the rest of the war room.

  “Just put a question mark next to those,” Boies instructed.

  Finally, Miller handed the marked-up report back to Boies. It is not unusual for a lawyer to suggest that a witness consider a work of scholarship before finalizing an expert report. But Miller’s scribbles indicated that the legal team defending Proposition 8 had provided him with the vast majority of the materials he had considered; of the 427 citations undergirding his report, he could only be sure that he had personally identified ninety-eight.

  Even Cooper had to admit that it made for good courtroom theater. “There were some rough spots in his testimony,” he said later.

  Boies paced his cross so that it lasted into the next day, giving him overnight, that “golden time,” as he called it, to sharpen his attack.

  Miller, in an effort to undercut the plaintiffs’ evidence on religious animosity, had listed churches that supported same-sex marriage in his expert report. But Boies forced him to acknowledge that the largest denominations, with congregations totaling eighteen million people in California, supported the ban. Confronted with exit poll data that showed that 84 percent of weekly churchgoers voted yes on Proposition 8 and his own past writings, Miller wound up agreeing with Boies that religion played a critical role in Proposition 8’s passage.

  Boies similarly sought to impeach Miller’s testimony that gays and lesbians had powerful allies in the labor movement by confronting him with exit poll data that showed that 56 percent of those with a union member in their household had voted in favor of Proposition 8.

  By the time Miller stepped down on Tuesday, January 26, he had made so many useful concessions that Boies (correctly, as it turned out) predicted that Cooper would not quote him in his closing arguments or subsequent briefs. Olson, for his part, kept a running tally, jotting notes on his yellow legal pad and already envisioning how he would use the admissions as the case made its way up on appeal. Among them: that “gays and lesbians currently face discrimination”; that discrimination is relevant to assessing a group’s political power; that gays and lesbians possibly face as much discrimination as African Americans and more than women, both groups that the Court considers deserving of heightened scrutiny; that he had not investigated the extent of antigay harassment in the workplace or schools or the way that antigay rhetoric might have influenced Proposition 8 voters but that “at least some people voted for Proposition 8 on the basis of antigay stereotypes and prejudice”; and that laws like Proposition 8 and DOMA were examples of state-sponsored discrimination against gays and lesbians.

  And then there was this back-and-forth:

  “You have actually written about why minorities who have a lot of political allies nevertheless suffer defeats in the initiative process, correct?” Boies asked.

  “I don’t know if I phrased it quite that way,” Miller replied.

  Boies proceeded to read aloud from an article Miller had published in 2001, in which he wrote about what can happen when voters are allowed to bypass legislatures and engage in direct democracy: “‘The direct initiative can be and has been used to disadvantage minorities.’ That’s what you wrote, correct?”

  “That’s correct.”

  “And you believe that today, correct, sir?”

  “I do.”

  “And then you next write, ‘The checks-and-balances system of representative government is designed to harmonize majority rule with protection of minority rights.’ You believe that today, correct?”

  “Yes, I do.”

  “You then write, ‘In contrast, the direct initiative system, by bypassing checks and balances, is weighted heavily toward majority rule at the expense of certain minorities. Racial minorities, illegal immigrants, homosexuals, and criminal defendants have been exposed to the electorate’s momentary passions as Californians have adopted a large number of initiatives that represent Populist backlash against representative government’s efforts to protect or promote the interests of racial or other minorities.’”

  “That’s what I wrote at the time,” Miller said. “I no longer believe that.”

  “You no longer believe that,” Boies acidly repeated. “Well, sir, let’s see about that.”

  He referred Miller to his deposition testimony, taken just before the start of the trial, and began reading from it:

  “‘QUESTION: Do you agree that the direct initiative can be and has been used to disadvantage minorities?’

  “‘ANSWER: I believe that’s a fair interpretation of the history of the initiative process.’

  “Did you give that testimony under oath on December 9, 2009?”

  “Yes,” Miller said. “And I would say the same thing today.”

  “Thank you,” Boies said, making no effort to hide the note of triumph in his voice.

  David Thompson tried his best during the redirect to clean up the mess that Boies had made of his witness. Miller told him that he had “tried to review” all of the materials he had referenced in his expert report, regardless of who found them. But when, in answer to another of Thompson’s prompts, Miller said he had come to believe that ballot initiatives like Prop 8 act as a useful check on “judicial activism,” it was Judge Walker who jumped in to play the role of cross-examiner.

  “Are you saying that it is never appropriate for the judiciary to intervene in the initiative process?” the judge asked.

  “No, Your Honor.”

  “When is it appropriate?”

  “In my view, it’s appropriate when an initiative, just like any other statute enacted by the legislature, violates in this case the federal Constitution.”

  “And who is to make that determination?” the judge asked.

  “That’s ultimately a question for the courts to decide.”

  What a remarkable exchange, Olson thought. “I never like to guess what a judge is thinking, especially in the middle of a case,” he said during a break, “but I liked that question.”

  Ted Boutrous, whom Olson joked had become the “sound bite king” of the operation, was even more bullish a
t the midday press conference. “A nail in the coffin of Prop 8” was how he described Miller’s performance.

  The muttering man barged through the courtroom doors, and before anyone could stop him he had made it midway up the court’s center aisle, within striking distance of the four plaintiffs.

  “Return the family to Jesus!” he shouted.

  Deputies rushed to restrain the disheveled intruder, and removed him within moments. But everyone was shaken by how close he had managed to get, especially Kris and Sandy.

  Since the start of the trial, a stranger had been harassing them. The phone calls would begin just after 4 A.M., and had kept them in a near-constant state of anxiety. “You make me sick,” the man would say. “I hope you burn in hell.”

  Chad wanted to book Kris and Sandy on every television show he could; Americans on the fence about same-sex marriage needed to hear the plaintiffs’ stories. But the two women worried that the exposure could invite violence. The upcoming People magazine interview that the war room had pushed so hard to land had almost fallen apart when editors insisted that the spread include a family photograph with the twins, now freshmen in high school; only after they had agreed to shoot the boys from behind had Kris signed off. But she had not been able to shield them from the caller.

  One day while they were in court, Elliott had been home alone when the man rang. “‘Tell those faggots they should be dead,’” he recalled the caller saying. “He listed all these terrible things about my parents. He kept calling. He persisted for four hours. I had to sit there and try to do my homework. English, math, and chemistry. I just closed my door. After a while it turned into white noise.”

  Kris had been so worked up when Spencer answered another of the man’s calls—“Hang up, hang up,” she’d cried—that he had not wanted to add to her worries by telling her that someone had found his e-mail address on his Facebook page. “It’s okay to not be okay with this,” the anonymous writer had said. “It’s okay to seek help.”

  What was not okay with Spencer was the writer’s presumptions. He and Elliott were among the brightest kids in their class. Sure, as Elliott later said, it might have been nice to have a guy around to teach him to shave, but “those are hiccups in the greater scheme.”

  “There was never a time when I thought I would be better off having a dad,” Spencer said. “What’s the real benefit of having a football thrown?”

  He would have liked to e-mail back: Think logically about everything gays and lesbians have to go through to have children, how much they have to want them. “Because of that they are more devoted,” he would have told the writer.

  But over the years he had learned not to respond. “People who feel this way, it’s the result of years of conditioning,” Spencer said.

  Kris called the Berkeley police, who responded by putting their home on a frequent-patrol list. (The caller, it turned out, was later sentenced to eighteen months in prison for threatening House Speaker Nancy Pelosi.) AFER paid to have a home alarm installed. For a while, court deputies escorted both women to and from the bathroom during breaks. And Sandy began watching out of the corner of her eye each morning when she stepped outside to pick up the paper.

  Meanwhile, the proponents were talking about how their witnesses would not testify because they feared being harassed.

  “We just sat there thinking, ‘Come on,’” Sandy said.

  Kris had tried to adopt a “what will happen, will happen” attitude. But her attempt at fatalism was often overpowered by a single thought: “Please, God, don’t let anything happen.” She was tired of being scared. Hang in there, she told herself, after the courtroom intruder was removed. Just one more witness, and at least this phase of the case would all be over.

  TWENTY-THREE

  “A HIGH OL’ TIME OF IT”

  When court resumed that afternoon, Chuck Cooper called his final witness.

  Afterward, Olson and Boies would wonder aloud why Cooper had even bothered with someone who spent so much time extolling the many virtues of same-sex marriage that it was easy to forget that he was there to defend the voters’ decision to ban it.

  Cooper would counter that his opponents had missed the entire point of the testimony. And the witness would recall the sheer exhilaration of his star turn on the stand, the “stroke to the ego” he had experienced “going head-to-head with a skilled interrogator” like Boies.

  “You know what I enjoyed?” David Blankenhorn said. “The combat.”

  He did not have to wait long for it to commence. Blankenhorn was the founder of the Institute for American Values, a nonprofit dedicated to strengthening marriage, and he was there to rebut the testimony of the plaintiffs’ experts that no harm would come from allowing gays and lesbians to wed. But before Blankenhorn could proceed, Boies, as he had with Miller, challenged his qualifications to opine on those topics.

  Boies began with Blankenhorn’s actual area of academic expertise—the Victorian cabinetmaker thesis that Chad’s team had dug up—then listed all the qualifications he lacked. He did not have a degree in sociology, anthropology, psychiatry, or any other field relevant to the study of marriage, children, or families. He had never taught at a university.

  “Boies made a big thing that I was incompetent, that I couldn’t walk and chew gum at the same time,” Blankenhorn later recalled. “Peer review this, publish that—he just had a high ol’ time of it.”

  Judge Walker made clear that Blankenhorn was a tougher call than the previous expert witness, Professor Miller. To his credit, Blankenhorn had written two books, one on fatherhood and another called The Future of Marriage. His views on same-sex marriage were frequently quoted in the press and he had testified before a congressional committee on the subject. And in the Ninth Circuit, where the trial was being held, the rules on expert testimony were fairly lax; there were no minimal academic requirements, for instance.

  But experts must be informed by scientific or other specialized knowledge that gives them a command of the subject beyond what an informed layperson might have. In this case, Blankenhorn acknowledged that he had conducted no independent studies to test his contention that allowing same-sex marriage would have a deleterious societal impact. He was merely a “transmitter of the findings of eminent scholars,” as he described it in his deposition.

  “I have just read articles and had conversations with people, and tried to be an informed person about it,” Blankenhorn told the court. “But that is really the extent of it.”

  Walker decided to hear Blankenhorn out before rendering judgment on his qualifications. But “were this a jury trial, I think the question might be a close one,” he said.

  Amir Tayrani, who had spent most of the trial back at the office looking through the transcripts with an eye toward the appeal, was in court that day to watch the action. “They might as well have got someone off the street,” he said to Kristina. “He’s going to get eviscerated up there.”

  Kristina nodded her agreement. “Good times, good times!”

  A Mississippi native, Blankenhorn had the accent and thundering cadence of a tent revivalist preacher, and he used both to ponderous effect during Cooper’s direct examination. “How’s Pat Robertson doing in there?” joked Olson, who had left the courtroom to stretch his legs.

  Blankenhorn saw himself as an anguished warrior in the debate over same-sex marriage, someone who had only reluctantly concluded that the rights of gays and lesbians must take a backseat to the needs of children. He had come to Cooper’s attention because he ran in the same circles as Maggie Gallagher, whose National Organization for Marriage was one of the driving forces behind Prop 8’s passage. She had worked at his Institute for American Values, but had struck out on her own because for years he had refused to involve himself in a gay marriage debate he viewed as divisive. Eventually, though, the “issue just hunts you down,” as he later put it, “and you realize that silence
is not an option.”

  Blankenhorn had founded his nonprofit out of concern over the growing number of children being raised in fatherless households. Now he shared with the court his fear that allowing gays and lesbians to wed would further devalue an institution already weakened by the prevalence of out-of-wedlock births and no-fault divorce. Marriage, he told the court, is a “gift to children” that exists to “regulate filiation”—or, in plainer terms, to make it as likely as possible that that they are claimed and raised by the biological parents who brought them into the world. “That is the lodestar,” he said.

  “Why does it matter whether the child is raised by his or her own biological parents?” Cooper asked.

  “The scholars have given it a name, called ‘kin altruism,’” Blankenhorn said. “And it really means, you know, you care a lot about who you are related to. You care about your relatives. You care about who your parents are, who your child is. And you would be—they have measured this with great precision. You typically sacrifice more for people to whom you are related.”

  So, he continued, “If you wanted what was best for the child, you would want that child—other things being equal, of course—you would want that child to be cared for by the two individuals who are most closely related to the child. And that would be the child’s mother and the child’s father.”

  Concern about the “deinstitutionalization” of marriage and the potential impact that could have on children was, Cooper believed, reason enough for Californians to vote to ban gay couples from marrying—even if it never materialized. This was, in essence, his “I don’t know” and “science can’t say with the kind of certainty required for setting constitutional precedents” defense, which he alluded to in a question aimed at inoculating his witness against charges that there was no definitive proof to back up his dire predictions.