Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  Boutrous had responded by telling her that she was no better than the groups that had opposed them at the outset. The word “traitor” crossed his lips before they both hung up.

  Chad had been enlisted to call Stewart’s boss, Dennis Herrera. This was no time to get cold feet, from his perspective. The only thing that had happened between the time they filed the case and now was that they had won big in the district court.

  The Ninth Circuit had allotted Stewart fifteen minutes to make her narrower argument. Olson wanted her to cede it to him so he could spend the limited time they had making the broad arguments that would require the panel to reach the same conclusions that Walker had, Chad told Herrera. The judges understood they had other, narrower options, without the team negotiating with itself.

  When that failed to produce the desired result—“Dennis has my back,” Stewart said—Boies had called. Privately, Boies shared Stewart’s concern about the Supreme Court. In his perfect world, the plaintiffs would win the right to marry in a California-specific decision, show the justices and the country that allowing same-sex couples to wed in the country’s most populous state would not cause the institution of marriage to implode, and file another case somewhere else. But he was not in charge. Couldn’t she make her argument in five minutes, he asked, and give Olson the rest of her time? In the end, she had found it impossible to say no to Boies, but the episode left her feeling bruised.

  “I adore David,” she said after hanging up the phone. “But with Ted, sometimes I feel like he thinks I’m an idiot and a jerk.”

  In any oral argument, time is of the essence. One key to Olson’s success as an appellate advocate was that he did not waste his time giving elaborate answers to questions that diverted him from the points he wanted to make. And no matter who was doing the asking, he kept his ultimate audience in mind.

  So as the argument got under way, Olson kept returning to the broad constitutional arguments he believed would sway Justice Kennedy, namely that “the right to marry is a central aspect of the right to liberty, privacy, association, and identity,” that California “engraved discrimination on the basis of sex and sexual orientation into its governing charter” when it stripped over one million gays and lesbians of that right, and that it did so simply because they engaged in intimate sexual conduct that the Supreme Court found to be constitutionally protected in its Lawrence decision.

  “California has built a fence around its gay and lesbian citizens. And it has built a fence around the institution of marriage, which the Supreme Court says, not based upon sex or procreation or anything else, is the most important relation in life. And the citizens of California within that one fence, because of their sexual orientation, are denied access to what every other citizen in California has,” Olson said. “That is a violation of the equal protection clause, and it’s a violation of the due process clause.”

  But each time his rhetoric soared, the panel pulled him back down to earth, and specifically to California and the kind of state-specific arguments that Stewart had made with the hope of avoiding Supreme Court review.

  Reinhardt, particularly, seemed to have lost his usual taste for boldness. This was a judge who had found that there was a constitutional right to doctor-assisted suicide and written that the right to bear arms is not an individual one, and his penchant for opinions that practically begged the Supreme Court to reverse him had led the satirical Web site Onion to joke that Reinhardt had struck down Christmas “in accordance with my activist agenda to secularize the nation.” Now here he was lecturing Olson on the doctrine of judicial restraint, using the Court’s opinion in a case Olson had argued before the Supreme Court called Plaut v. Spendthrift Farm, Inc.

  Olson’s arguments in the Proposition 8 case would “require a holding that any state that did not permit gay marriage would be in violation of the Constitution,” Reinhardt said, but “as you well know”—and as the Court held in the Plaut case—“we are advised not to reach a constitutional question unless we have to.”

  Instead, both Reinhardt and Hawkins focused on the similarities between Proposition 8 and the Colorado initiative that the Supreme Court had struck down in Romer v. Evans. Wasn’t it true that in both cases, voters had stripped gays and lesbians of rights and protections that they had previously enjoyed? Hawkins had asked Cooper earlier. Why shouldn’t the court resolve the case based on those grounds—that a right, once given, cannot be rescinded—alone? Reinhardt now asked Olson.

  If the Ninth Circuit panel did that, it would not have to address whether gays and lesbians constituted a suspect class deserving extra judicial protection because of the historic discrimination against them, or the immutability of sexual orientation. It would not have to grapple with Judge Walker’s finding that bans like Proposition 8 could not be justified by an interest in promoting an ideal child-rearing environment, because the children of gays and lesbians do just as well as those raised by opposite-sex parents. And it could strike down Proposition 8 without addressing whether bans elsewhere were unconstitutional, because only in California had the right to marry been given to gays and lesbians, then taken away.

  The way Reinhardt was talking, it was as though the entire trial, with its mountain of evidence and expert testimony, had never taken place.

  “This panel makes me nervous,” Enrique Monagas said to Sarah Piepmeier afterward. “It would be such a waste if they go narrow.”

  Walking into court that morning, Chuck Cooper had shaken Olson’s hand and clapped his old employee, Matt McGill, on the back. But inside, he was seething.

  It was bad enough that the state had declined to defend Proposition 8 in Judge Walker’s courtroom. But he had known all along that standing could be a problem for his clients if the state did not at least file an appeal, then delegate the actual responsibility of defending the law to the initiative’s proponents. If no one had the authority to appeal Judge Walker’s decision, then it would stand, unchallenged, and he would lose on a procedural technicality.

  “I thought that was incredibly irresponsible and incredibly inappropriate,” Cooper said later of what he regarded as the state’s negligence. “Fifty-two percent of the people of California deserved to have their views considered and the validity of their constitutional amendment tested by more than one federal district court judge.”

  Cooper believed that Supreme Court precedent was on his clients’ side. California’s ballot initiative process effectively allows the people to act as lawmakers. And in a 1987 case called Karcher v. May, the Supreme Court had allowed members of the New Jersey Legislature to appeal a decision striking down a school prayer law when the attorney general declined to do so.

  But the Karcher decision predated Justice Ginsburg’s comment in Arizonans for Official English. So, with his case potentially hanging in the balance, shortly after Cooper was hired to defend Proposition 8 he had hatched a backup plan.

  The California Supreme Court had held that the regulation of marriage is a state function. But because county clerks actually issue marriage licenses on behalf of the state, they arguably might have the type of direct stake in the outcome of the case that the Supreme Court requires. Find a clerk willing to defend Proposition 8 on appeal, Cooper had directed his co-counsel, the Alliance Defense Fund, in the event the initiative’s backers could not.

  But in what now appeared a serious misstep, the group had signed up the deputy clerk of Imperial County, rather than the actual clerk. Her motion to intervene had been denied by Judge Walker, and judging by the way the three-judge panel was now manhandling her lawyer, it was clearly not going to fare any better here.

  The problem was that under California law, deputy clerks have no independent power, and in this case there was nothing to indicate that Imperial County’s clerk had authorized the deputy’s motion to intervene.

  “We’re left completely at mystery to know why the clerk is not before us,” Judge Hawkins s
aid.

  “If the clerk isn’t here, we have a problem,” Judge Smith agreed.

  Over the weekend, Boies had talked about how “it’s easy in the give-and-take of oral argument to seize on whatever arguments sound good, without thinking about the implications for the rest of your argument.” But knowing the trap and not falling into it are two different things.

  Part of Boies’s job was to keep Imperial County out of the case; he and Olson knew full well that that was Cooper’s plan B in the event that his own clients did not have standing. To that end, Boies argued that Imperial County had no stake in the matter because the only clerks directly bound by Judge Walker’s order were the two named in the lawsuit, the clerks of Los Angeles and Alameda counties who had denied Jeff and Paul and Sandy and Kris their licenses. But Boies’s argument took a complicated turn when Judge Reinhardt wondered aloud whether all fifty-eight clerks should have been named as defendants, or the case filed as a class action, leading to a tangled discussion over whether Judge Walker’s decision would apply statewide if no one had the standing to appeal it.

  Reinhardt then rebuked Boies, “a lawyer with your ability and fame and, uh, whatever else you have—even if you lost to Mr. Olson,” for failing to think all of that through.

  To be fair, Reinhardt’s question was completely unexpected, and Boies had not been given much time to prepare; Olson had assigned the standing argument to his partner at the last minute because he wanted Boies to have a role. Olson, scribbling on his notepad, thought Reinhardt was wrong on the law. The plaintiffs had sued the governor and the attorney general because marriage in California is a state function; it was not necessary to sue anyone else. But there was little he could do but watch as Boies tried to rebound.

  In practical terms, Boies told the judge, the governor and the attorney general had the authority to force the clerks in all fifty-eight counties to resume issuing licenses to same-sex couples. But in answer to another of Reinhardt’s questions, he conceded that another round of litigation might be necessary first.

  As the half hour came to a close, it was clear that the panel had concluded that the best way to resolve the problem was to eliminate it, by finding a way to rule that Cooper’s clients had the right to appeal Judge Walker’s decision.

  Judge Smith noted that the governor has no veto power over voter initiatives, and the California Legislature may not amend them. “I guess my problem is that in fact the governor’s actions and the attorney general’s actions have essentially nullified the considerable efforts that were made on behalf of the initiative to be placed on the ballot and obtain passage,” he said. “If they don’t appeal, and therefore no one can appeal, haven’t they effectively nullified the effect?”

  During the prep sessions, Boies had answered similar questions by pointing out that the proponents of Prop 8 had already had their day in court. Now, though, he found himself deep in the weeds, arguing that was true “only in the sense, Your Honor, that in every standing case, if a state official does not appeal, it, quote, nullifies it.”

  “The answer then is yes,” Judge Reinhardt declared.

  Reinhardt and Hawkins seemed unlikely to uphold Proposition 8 as constitutional: The lawyer’s contention that Proposition 8 was about ensuring that children were raised in two-parent household “sounds like a good argument for prohibiting divorce,” Judge Reinhardt said, “but how does it relate to having two males or two females marry each other and raise children?”

  But like Smith, they were sympathetic to Cooper’s argument that his clients had a right to defend the initiative. Both men had, as Hawkins put it, been on the “wrong side” of the Arizonans for Official English case when it passed through the Ninth Circuit, reaching the merits of the challenge to the Arizona initiative only to be reversed by the Supreme Court. “I thought it was the right side!” Reinhardt interjected.

  It bothered Reinhardt that the court kept putting up procedural roadblocks that barred the courtroom door to people. This case offered a way to claw back some of the ground they had lost, if they could find a way to distinguish California from Arizona.

  In the Arizonans case, Justice Ginsburg had noted that the court was “aware of no Arizona law appointing initiative sponsors as agents of the people to defend, in lieu of public officials, the constitutionality of initiatives.” Now, again out of left field, Reinhardt threw a question at Boies. “Why shouldn’t we ask the California Supreme Court what the law is in California?” Reinhardt asked. “Rather than kill an initiative that the voters have passed, wouldn’t it be advisable to attempt to get a legal answer to this question?”

  Chad wanted to scream. He still worried that another case could overtake this one and reach the Supreme Court first; he wanted Olson to be the one to frame the argument for the justices. This would delay them for months, maybe even years. But when a judge is as hell-bent on a course as Reinhardt seemed to be on this one, there is little to be done. By the time court wrapped up, the legal team had resigned itself to a new and unwelcome reality: Their case was about to take a detour.

  “What a mess,” said Theane Evangelis.

  TWENTY-SIX

  “SOMETIMES PRAYERS WORK”

  By White House standards, the party that took place on February 6, 2011, was an informal one. The Obamas had set up big-screen televisions in the State Dining Room and invited some friends over to watch the Green Bay Packers play the Pittsburgh Steelers in the Super Bowl.

  Stepping out into the hallway for moment, Attorney General Eric Holder was surprised to find Obama standing there, near a portrait of John F. Kennedy. It was rare to catch the president alone, and he decided to take advantage of the moment.

  While the Proposition 8 case had been perking along, a number of other federal lawsuits involving the rights of gays and lesbians had been filed in federal courts around the country. These lawsuits did not challenge same-sex marriage bans. Rather, they more narrowly challenged the provision in the Clinton-era Defense of Marriage Act that denied spousal benefits to same-sex couples who had married in states where it was already legal.

  Except under extraordinary circumstances, the Justice Department has a duty to defend laws passed by Congress, regardless of whether the occupant of the White House likes them or not. For that reason, Obama and Holder were dutifully arguing to uphold DOMA, as the law was known, and taking incoming fire from gay rights groups that reminded Obama at every turn that he had promised to repeal, not defend it.

  Holder thought he had found a way out. But before he could tell the president about it, Obama beat him to the punch. Before his career in politics, Obama had taught constitutional law, and now he shared what he believed to be an elegant solution to the DOMA problem.

  Listening, Holder had to laugh. “I was going to tell you exactly the same thing!” he recalled telling the president. “And I remember telling him this was one of the reasons why I was proud to serve in his administration, because what he was saying was not going to be without controversy. But it was the right thing to do.

  “And, as is typical of him, he just kind of said, ‘Yeah, it is right. I think it’s the right thing to do, Eric, so let’s get back to the game.’”

  The quest for a solution had begun twenty months earlier when the Justice Department filed a brief defending DOMA in a case called Smelt v. United States.

  The Civil Division of the Justice Department, which defends cases brought against the government in the lower courts, had inherited its defense of DOMA from the Bush administration. Tony West, the political appointee who headed the division, went through the brief before it was filed, stripping out arguments that he felt were inconsistent with the new administration’s values or unsupported by evidence. Gone was the argument that states had a right to make judgments consistent with prevailing “societal mores.” Relying on the same kind of sociological evidence Olson had used in the Prop 8 trial, West also abandoned the argument that DOMA was
justified because it promoted an ideal child-rearing environment. But his effort to strike a balance was overshadowed by the arguments the brief did make.

  Instead of simply outlining the procedural flaws with the case that would eventually result in its dismissal, the Justice Department had mounted a multifaceted defense of the law’s constitutionality. Echoing Cooper’s argument in the Proposition 8 case, the brief argued that adopting a “cautious, wait-and-see approach” to same-sex marriage was perfectly rational. The biggest uproar, though, was caused by a citation West had overlooked buried deep within the brief. In defense of the law’s provision that states did not have to recognize same-sex marriages performed elsewhere, it referenced a decades-old Supreme Court decision that held that states do not have to recognize marriages between cousins or an uncle and a niece.

  The June 11, 2009, brief instantly became a flashpoint for activists who were already disappointed with a president they felt was an “unreliable ally,” as Segura had put it during the Prop 8 trial. OBAMA DOJ COMPARES GAY MARRIAGE TO INCEST, read one headline.

  At the White House that Saturday, the president hit the roof as he read through his daily package of news clips. West had consulted with the White House Counsel’s Office and given lawyers there a copy of the brief before it was filed, but apparently no one had filled in the president.

  Obama fired off an e-mail to Valerie Jarrett, one of his oldest friends and closest White House advisers, and his primary liaison to the gay community. Jarrett was attending the wedding reception of the president’s domestic policy adviser when she checked her BlackBerry and saw the president’s sharply worded message. At her table was Rahm Emanuel, Obama’s chief of staff at the time, and Hilary Rosen, a powerful and openly gay Democratic consultant, who recounted the conversation this way: