Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  Didn’t gays and lesbians deserve the same? Under Article II of the Constitution, which mandates that the president “take care that the laws be faithfully executed,” the executive branch has a duty to enforce the laws of the United States. But it does not have to defend those that cannot pass constitutional muster.

  And that was what he was about to recommend to the president when he ran into him outside the State Dining Room, only Holder said the president started talking first, about how he thought DOMA ought to be subject to heightened judicial scrutiny, and how, given that, he did not think that the administration’s legal position was what it should be.

  “He was where he was, and I was where I was, and we just met at that Super Bowl thing,” Holder said.

  Seventeen days later, on the morning of February 23, 2011, Robbie Kaplan got another call from West. As a personal matter, the president remained opposed to same-sex marriage, though he now said that his view that civil unions were adequate for gay couples was “evolving.” But that afternoon, the Justice Department planned to notify Congress that while the administration would continue to enforce DOMA, it would no longer defend a federal law that treated married gay couples differently than their straight counterparts.

  “Remember when you said you would be praying?” West asked. “Well, sometimes prayers work.”

  TWENTY-SEVEN

  WHEN A NIGHTINGALE SINGS

  It was a festive group that stood in the sunshine in midtown Manhattan a few months later on Sunday, June 26, 2011, waiting for the city’s forty-second annual gay pride parade to start. Two days earlier, in a nail-biter of a vote, New York lawmakers had made their state the sixth, and by far the largest, to allow gays and lesbians to wed.

  Chad had planned to spend the weekend in Palm Springs, but when the law passed the Republican-controlled state senate late Friday night, he and Adam had jumped on a red-eye flight. They had headed first to the Stonewall Inn, to celebrate a momentous political victory in a state that had birthed the modern gay rights movement, one with profound implications for the country and the case. Rob and Michele Reiner, who were in town on business, joined them at a prearranged parade meet-up point with their daughter, Romy. Rob’s producing partner, Alan Greisman, and his son with actress Sally Field came with them. Bruce Cohen and his husband, Gabe, arrived last, pushing along their newly adopted two-month-old baby girl, Ilaria, in a stroller.

  Once the law went into effect, the number of people living in states where same-sex couples could marry would double overnight, an inflection point that would make what was once deemed remarkable, even radical, quite ordinary.

  Pending the outcome of the marriage litigation, the federal government and states with Proposition 8–like bans would not have to recognize the marriages of gays and lesbians performed here. But just two years after a state senate then under Democratic control easily rejected a similar bill, the traditional political dynamic had been upended by a campaign that harnessed Wall Street money, bipartisan muscle, and newfound political savvy to overcome stiff opposition from the Catholic Church and other religious leaders. The cause had gone mainstream, in a way the lawyers hoped would convince the justices that the country was ready.

  “Now that the winds are shifting,” Rob Reiner exclaimed, “I don’t see how the Supreme Court is going to rule against us!”

  Just then, Christine Quinn, the first openly gay speaker of the New York City Council, wandered over. “Happy Pride!” she said. Bruce and Gabe had recently thrown her a fund-raiser, and now she introduced her longtime partner, Kim Catullo, to the group. The two women planned to marry now that it was legal. “Chad’s been, like, leading the effort legally,” Quinn told her fiancée.

  The case, however, had ground to a standstill. As expected, the Ninth Circuit had denied Imperial County’s motion to intervene and asked the California Supreme Court for guidance on whether ballot proponents like Cooper’s clients have the authority under state law to defend the validity of initiatives such as Proposition 8. But arguments weren’t scheduled to take place until September, more than two months away.

  With the case in legal limbo, Adam and the team’s Hollywood contingent were working on a unique plan to carry the story of the plaintiffs’ trial victory to an audience beyond the courtroom. AFER’s in-house screenwriter, Lance Black, was writing a play, with nearly all the lines drawn verbatim from the trial transcripts, that the Reiners were helping to cast. The Supreme Court may have prevented the American public from seeing the trial, but it could not stop them from recreating it. Black’s play, 8, would open for a one-night fund-raiser on Broadway, followed by another in Hollywood. AFER would then make the script available to anyone who wanted to put it on a stage.

  Standing on the corner, the Reiners went over the various roles with the rest of the group.

  “Kevin Kline would be a good one to play David,” said Rob, whose shirt was festooned with gay rights stickers, including one that read POWER IS SEXY.

  “I like Rob for Blankenhorn, don’t you?” Michele asked.

  “Oh my God—that’s good!” Chad gasped. “Would you do it?”

  “I would do it, sure.”

  Michele was a little worried about Paul and Jeff; Kris and Sandy had larger roles in the play. And someone needed to talk to Ted Boutrous and explain that for creative reasons the only lawyers featured would be Olson and Boies.

  “Chad and I were talking about Ted,” Adam said. “We said, you know who would be perfect to play him? Robert Redford.”

  The throngs around them began growing larger and louder, cutting off discussion. Ilaria was sleeping through the din, “but if I sneeze, she’ll wake up,” Gabe said, proudly fussing with her blanket. A young man wearing a NEXT MARCH, DOWN THE AISLE T-shirt offered to help the new fathers by clearing the way for her stroller. As the march began to move, Bruce hugged both Reiners. “Rob and Michele, for the gays!” he cheered.

  But the one AFER board member who had as much to do with the passage of same-sex marriage in New York as anyone was nowhere to be found. Ken Mehlman, one of the Republican Party’s shrewdest political operatives, was sitting out the march at his apartment downtown. He didn’t want any credit. Besides, he told Chad and Adam when he begged off, he was not entirely sure his presence would be welcome. Marching in the parade was for people who had been waging these battles for years, not a newcomer like himself. “I didn’t think I had earned that right,” he said afterward.

  Mehlman liked to think of himself as a stand-up guy. As the chairman of the Republican National Committee under President George W. Bush, he had made headlines by apologizing to the National Association for the Advancement of Colored People for the Republican Party’s exploitation of racial strife to court southern white voters. He had taken on his party’s anti-immigration wing, publicly charging that it was jeopardizing years of outreach to Latino voters.

  But as the man responsible for reelecting Bush in 2004, Mehlman had not spoken out against his party’s use of antigay initiatives to drive evangelical voters to the polls for political gain. Eleven states passed same-sex marriage bans that year, including Ohio, a battleground Bush needed to win. And he had been evasive and misleading in his attempts to quash the widespread rumors about his own sexuality. He knew he was gay, but he had not come to terms with it. It took him forty-three years, and Olson’s involvement in the Proposition 8 fight, to come out and speak up.

  “I call Ted the nightingale, because when one nightingale sings, others start singing too,” he said one night over dinner, prior to the parade. “Before, whenever this issue would come up, I would just not engage. It was the one area of my life where I had been unwilling to take a risk or a chance.”

  Like nearly everyone else in Olson’s circle of Republican friends and colleagues, Mehlman had been intrigued when the lawyer challenged the constitutionality of California’s same-sex marriage ban. He had followed the trial coverage ca
refully, and been impressed with the public education component of the litigation. He wanted to help. But first he wanted to be reassured that the case did not constitute the kind of judicial activism that, as a conservative, he had long deplored.

  Olson’s answer—that marriage was not a new right, and that the courts were there to protect against the tyranny of the majority—satisfied Mehlman. He wanted to hold a fund-raiser to benefit AFER, he told Olson, and not just any fund-raiser but one filled with big-name Republicans whose support for marriage equality would make headlines. Talk to Chad, Olson said, introducing the two via e-mail.

  There is a team-building exercise that Mehlman had always hated, the one where one person tumbles backwards and trusts another to break the fall. Meeting Chad for the first time felt a lot like that. Chad had been one of several producers behind a documentary called Outrage, about the political hypocrisy of closeted gay Republicans and the media’s role in covering it up. The film featured a clip of comedian Bill Maher referring to Mehlman as a closeted gay man on Larry King Live, a comment CNN edited out of later taped editions and that the Republican operative had denied.

  But the two operatives liked one another immediately. Though they came from opposite ends of the political spectrum, they were both obsessive, Type A workaholics. When Mehlman embarked on a task, he employed what he called “command focus” to shut out all distractions.

  “Anyone who can get George Bush elected and reelected is a fucking genius I want on my team,” Chad joked after their first meeting.

  Both men believed that big social change does not happen unless people with multiple perspectives come to believe that it is consistent with their values. As Mehlman put it, selling the American public on same-sex marriage involved Republicans arguing that it was consistent with conservative values of fidelity and commitment, athletes arguing it was consistent with fair play, CEOs arguing it was good for business and the economy, religious leaders calling on people to “love thy neighbor as thyself,” and foreign policy hawks pointing out that some of the most antigay countries in the world were also the most vehemently anti-Western.

  It also, Mehlman understood, involved him finally being honest about who he was. He was living in New York, working as partner at the private equity giant Kohlberg Kravis Roberts and Company, or KKR as it is known, and was in the process of quietly coming out to family and a few close friends. But joining up with AFER for a big-name fund-raiser would require something more public, and not just because the event was bound to renew all those old questions about his sexuality.

  “People told me, and I didn’t believe it then, but I do now, that one of the most powerful things you can do is come out,” he said. “People’s views change because they come to know that their brothers and their sisters or their friend, who put on their pants one leg at a time just like them, who pay taxes and salute the flag just like them, just so happen to be gay.”

  He planned it with the meticulousness that he had brought to plotting Bush’s second term in office. In August 2010, he had sat for an interview with the Atlantic magazine titled “Bush Campaign Chief and Former RNC Chairman Ken Mehlman: I’m Gay.” One month later, Mehlman opened up a new spigot of Wall Street money for the marriage equality cause, raising $1.3 million for AFER at a fund-raiser at the Mandarin Oriental Hotel overlooking Central Park. GOP megadonors like hedge fund billionaires Paul Singer and Peter Thiel mingled with two former Republican governors, several leading GOP political strategists, high-ranking officials from the Bush administration, and a surprise guest, President Bush’s daughter Barbara.

  “Ken’s all in on everything he does, but there’s all in, and then there’s all in,” said attendee Mark Wallace, a close friend and Bush’s deputy ambassador to the United Nations. “This was more important to him than anything he had ever done. He wanted to get it right, because he wanted it to be the beginning of the best campaign he would run in his life.”

  The event generated huge press buzz, but afterward AFER’s Facebook page was awash with negative comments. “Ken Mehlman set gays and lesbians back ten years,” read one. “The damage is done by his precious GOP and suddenly he has an attack of conscience?” read another. Undaunted, Chad announced Mehlman would be joining the AFER board.

  Olson’s embracement of the marriage equality cause had been important both legally and symbolically, but Mehlman’s offered an opportunity to engage with the entire Republican Party political apparatus and electorate on an operative level. He was also a genuinely nice guy, Chad told Kristina, still awkwardly trying to find his way as a gay man in a world that was largely unfamiliar to him. “Coming out is hard,” he told her. “No matter who a person is, you have to support him. We have to be there for him.”

  Mehlman quickly set about proving his usefulness. Nearly two years into his presidency, Obama had finally made congressional repeal of Don’t Ask, Don’t Tell a priority, following a painstaking campaign to enlist the support of top military brass. Weeks after the AFER fund-raiser, the Pentagon released a survey of active member and reserve military. More than 70 percent said the effect of repealing the ban on gays and lesbians serving openly would be positive, mixed, or nonexistent, leading the study’s authors to conclude that the ban could be lifted with minimal risk to the current war efforts in Iraq and Afghanistan. The repeal had passed the House, but with the chamber set to flip to Republican control in January 2011, the administration had only weeks to move it through the Senate.

  Mehlman offered to help during a White House visit with Valerie Jarrett, the president’s friend and top aide. He then threw himself into rounding up the Republican votes that the president’s advisers said were critical to the bill’s passage, acting as a trusted translator during negotiations with the White House.

  “Ken spent a lot of time talking to them. He was very helpful in terms of figuring out what they wanted and communicating that to us,” said Jim Messina, then the White House deputy chief of staff. “We were trying to get rid of excuses, redlines, and the Republicans gave Democrats cover.”

  Mehlman devoted even more energy to the effort to legalize same-sex marriage in New York. To avoid a repeat of the infighting and disorganization that had contributed to defeat two years earlier, Democratic governor Andrew Cuomo had insisted that gay rights groups work together in a coalition that reported up to a top-notch campaign manager of his choosing, former labor leader Jennifer Cunningham. Cuomo, who had made the legalization of same-sex marriage a top priority, committed to holding Democratic lawmakers’ feet to the fire. But it was going to take Republicans in the GOP-controlled Senate to pass the bill, and that was where Mehlman came in.

  He reached out to Bill Smith, the national political director for the Gill Action Fund, which was deeply involved in the New York battle, and invited him to a meeting in Paul Singer’s office with some of the GOP megadonors who had attended the AFER fund-raiser. The deep-pocketed nonprofit Gill Action Fund, formed to advance LGBT causes through the political process, was working to make the movement more effective by insisting that the groups it funded employ polling, focus groups, and other tools of modern politics. Smith had worked for Bush strategist Karl Rove and at the RNC, and had been one of the people Mehlman consulted when he came out. The donors Mehlman brought to the meeting were sold.

  “Over a million dollars came from that one meeting, more than from all the other donors combined,” Smith said. “It completely changed the equation. Gill Action had a right-of-center strategy, but Ken put it on steroids.”

  Working in coordination with Cuomo, they began building a model they hoped could be exported to other states. The Republican Wall Street money went toward hiring a Republican lobbying team that lawmakers in Albany knew and trusted. Wavering Republicans senators were assured that there would be plenty more money to protect them if their vote in favor of same-sex marriage caused them problems in the next election cycle. Mehlman also arranged a confidential meeting w
ith Republican state senate leader Dean G. Skelos and some of the Republican donors who were now backing AFER. If Skelos imposed party discipline and refused to allow his members to vote their conscience, the bill was doomed.

  “We said, ‘We want to build this party, we want you to be in the majority in the future,’” Mehlman recalled afterward. “We said to him, ‘In every competitive district, we will hire polling guys that had polled for Republicans in the past to do polling on the issue. And we’d like to share that with you. So your guys know we’re not asking them to take a flier, we think it’s in their interest.’”

  Next came the enlistment of the business community. Mehlman, City Council Speaker Quinn, and Kathryn Wylde, the CEO of Partnership for New York City, a nonprofit organization of the city’s corporate leaders, split up a list of names. The result: an open letter to Albany, signed by business titans like the CEOs of Goldman Sachs and Morgan Stanley, arguing that passage was important to their ongoing ability to recruit talent. New York mayor Michael Bloomberg was a also forceful advocate, lobbying lawmakers and appearing in an advertising campaign that also featured iconic New Yorkers like former mayors David Dinkins and Ed Koch and former police chief Bill Bratton.

  Republicans held thirty-two of sixty-two seats in the state senate. Seventeen would have to vote to put a bill on the floor. With all but one Democrat committed to voting for it, at least three Republican senators would have to cast votes in favor. Mehlman went to Albany to personally lobby lawmakers, assuring them that they could count on financial backing to fight off primary challengers.

  But with New York’s Catholic archbishop Timothy Dolan charging that passage of the bill would put New York in the category of North Korea and China, where “government presumes daily to ‘redefine’ rights, relationships, values, and natural law,” only two Republicans had publicly committed to supporting the bill, one short of the number needed. Under pressure from both sides, it had not been an easy decision for either of them.