Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  Among the Supreme Court precedents Boudin cited: A 1973 decision in a case called Department of Agriculture v. Moreno, striking down a congressional statute aimed at preventing hippies living in communal housing from taking advantage of the food stamp program, and a 1985 decision case called City of Cleburne v. Cleburne Living Center, overturning a local zoning ordinance that discriminated against homes for the disabled.

  Justice John Paul Stevens famously wrote that “there is only one Equal Protection Clause,” and it did not require that the Court apply different standards to different cases, but only that the state govern impartially. In his concurrence in Cleburne, he wrote that the rational basis test, properly understood, is adequate to decide whether laws that single out classes of citizens for special treatment are constitutional, and he provided a framework for deciding cases that offered an alternative to the old multitiered scrutiny system:

  “I have always asked myself whether I could find a ‘rational basis’ for the classification at issue. The term ‘rational,’ of course includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class,” he wrote. “In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a ‘tradition of disfavor’ by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment?”

  Boudin, in his DOMA decision, appeared to apply the kind of rationality test that Stevens had laid out, with a federalist twist. In weighing the purported governmental purpose of DOMA against the burden imposed by the law, Boudin found no “demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefit to society of heterosexual marriage.” Instead, he said, the statute constituted an effort by Congress to “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.

  “To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.”

  The Justice Department was appealing both decisions in order to avoid the kind of standing questions that had been raised in California when the state refused to defend Proposition 8. But the actual defense of the law had been taken over by a standing body of the House of Representatives led by Speaker John Boehner, who had been elected Speaker after Republicans took over leadership of the chamber. Paul Clement, a protégé of Olson’s who had succeeded him as President Bush’s solicitor general, was the group’s lawyer.

  The Supreme Court bar was an elite bunch, but even by those standards, Clement shone. Since 2000, he had argued more cases before the Court than any other lawyer, and had an easygoing rapport with the justices. He was known for his ability to argue polarizing legal causes—most recently he had challenged the president’s health care overhaul and defended an Arizona law aimed at rooting out illegal immigrants—in eminently reasonable fashion.

  Cooper knew and liked Clement, but he hoped the two cases could be played off one another to the advantage of his clients, the proponents of Proposition 8. Kennedy, in his Romer decision, had written of the “sheer breadth” of the Colorado amendment depriving gays and lesbians of the protection of antidiscrimination laws, declaring it “at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board.”

  In deciding whether Proposition 8 was passed out of animus toward gays and lesbians, Cooper wanted the Court to compare what the federal government had done, in denying them a huge array of federal marital benefits, against what California had done, in granting them all the benefits of marriage but the name. And to the extent that the justices bought into the federalism argument that the definition of marriage should be left to the states, that could also be helpful.

  Then there was a purely practical consideration. The justices look to the Constitution in deciding how to apply the law, but they must look to one another in deciding any given case. Building a majority of at least five can involve a fair amount of horse-trading.

  “Practically and strategically, I thought that having these cases argued and decided concurrently favored us,” Cooper said. “Because it always seemed to me that if the justices were looking for a Solomonic way to resolve these cases, that favored Proposition 8 being upheld and DOMA struck down.”

  The only real downside to all the delay was that it had allowed for political victories like the passage of same-sex marriage in New York and, as Cooper put it, for public opinion to shift “with a velocity unlike anything I have ever seen.” Olson believed momentum only helped his side of the case, but Cooper saw it differently. “It’s not at all clear that cuts in Ted’s favor more than mine,” he said. “It’s a Mexican standoff.”

  To the extent the Court does not like to get out ahead of public opinion, public opinion was giving the justices “the green light,” he said. But “the other side of that sword,” in his view, was that the growing acceptance of same-sex marriage weakened Olson’s position that gays and lesbians needed the Court to intervene in the democratic process because they lacked sufficient political power. He planned to “jujitsu that” into an argument designed to keep the Court from applying heightened scrutiny.

  All in all, he was feeling pretty good about the way things were lining up. Then he clicked on the link to Blankenhorn’s mea culpa.

  Over the course of the year and a half that had passed since the trial, Blankenhorn had given much thought to the position he had taken on the stand.

  His high school– and college-aged kids disagreed with him, though they mostly expressed that to their mother. And debate sparring partners like Jonathan Rauch, the author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, and Dale Carpenter, a constitutional law professor, had forced him to challenge his assumptions.

  “Getting to know them personally affected me,” he said, sitting in his office in New York a few months after his op-ed appeared. “I was ignorant about gay people. I’m not excusing myself from that charge of bigotry, because bigotry can be omission. You can have a wall of thought that prohibits you from asking interesting questions.”

  When he was researching his book on same-sex marriage, he had read everything he could get his hands on. The elite debate, he found, was dominated by extremes. “A lot of people involved were hostile to the institution of marriage itself, and my fear was that gay marriage was a way to make marriage dead as a dodo,” he said. “But then, as I talked about it with people I knew, it slowly dawned on me. Most gay couples aren’t like that. They aren’t interested in destroying the institution of marriage. They are just trying to live their lives. I used to think that personal relationships shouldn’t affect your thinking. But I now know that it can be really helpful, because you realize that some of the things you thought are just not true.”

  He was not alone in coming to that conclusion. A month earlier, a pioneering psychiatrist at Columbia University had retracted a controversial study he had published in 2003 concluding that reparative therapy could “cure” homosexuality in motivated patients. The study had been entered into evidence by Cooper during the trial to buttress the idea that homosexuality was not an immutable trait. But since then, the therapy had been denounced as a “serious threat to the health and well-being—even the lives—of affected people” by the World Health Organization. The study’s author, Dr. Robert Spitzer, had acknowledged in a letter to the Archives of Sexual Behavior, the journal that originally published his study, that it lacked scientific rigor and had been deeply flawed
. “I believe I owe the gay community an apology,” Spitzer wrote.

  Blankenhorn’s evolution came about over a period of months. Professor Carpenter talked to him about how when he was a lawyer in Texas, people from his firm would take down the licenses of cars parked outside gay bars and cross-reference them with the names of the firm’s employees. “This is our history,” Blankenhorn recalled Carpenter telling him. “This is what we are fighting about.”

  That hit a nerve with Blankenhorn, whose formative moral experience was growing up in Mississippi during the civil rights movement. He had not gotten into this battle to hurt gay people, or to stop them from getting what they wanted.

  He still believed that society should do all that it could do ensure that children do not grow up in broken, one-parent families. But in private conversations, Rauch would ask him probing questions: If you admit that there is some benefit to gays and lesbians being able marry, wouldn’t there have to be significant harm to the institution to justify banning them from doing so? Is fighting gay marriage really going to increase the likelihood that children will grow up with their own married mother and father?

  The answer, he had come to realize, was no, because the trends on that front were getting worse every year. All the fight over same-sex marriage was doing, he concluded, was miring the country down in a culture war.

  “I didn’t want to spend the rest of my life fighting this battle, which by the way, is over. It’s over. People have made up their minds. It’s just a huge mopping up at this point. The people who disagree are no longer willing to say they disagree. And that too, that should be one consideration, that there isn’t a way to stop this from happening.”

  His Institute for American Values had lost half its funding—“It happened like this,” Blankenhorn said, snapping his finger—but he did not regret writing the op-ed.

  He had thought about calling Cooper and David Thompson to tell them what he was about to do, knew, really, that he should have done. But he had not been able to force himself to do it. “I didn’t want for them to be mad at me,” he said. “I feel really bad about that. I like those guys.”

  There had been moments when Cooper thought that if he had to do it all over again, he never would have agreed to take on this fight. “Any case has its trying elements and its challenges,” as he put it, “and this one had more of them and at different kind of levels than any case, honestly, that I’ve been involved in.”

  Terry Stewart, for instance, had really gotten under his skin when she told the Ninth Circuit panel that his motion to disqualify Judge Walker showed that he and his clients thought “gay people were inferior” and could not seem to understand that “different rules don’t apply to gay people.” Olson had told members of his team that he thought Cooper was going to have a seizure when, voice shaking, Cooper had glared and jabbed his finger at him in rebuttal.

  And it had been upsetting to Cooper, “very upsetting,” he said. He might have lost, but he believed Walker’s relationship was at least worthy of the court’s attention, and was certainly not the act of bigotry that Stewart portrayed it to be.

  “I still think that we were entitled to know, did he have any desire to marry? Our point was simply that if a judge potentially stands in the same shoes as a party in the case, it isn’t crazy to argue that he should at least disclose that, if not recuse himself.”

  But in terms of trying moments, reading Blankenhorn’s op-ed, in the New York Times of all places, ranked up there. “If fighting gay marriage was going to help marriage over all, I think we’d have seen some sign of it by now. So my intention is to try something new,” Blankenhorn had written. “Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.”

  Cooper could have lived with that, just like he could live with President Obama’s endorsement. People of goodwill had changed their minds. But what was truly harmful, and legally consequential, was this passage:

  “In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens. And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus.”

  “Of course that was not helpful,” Cooper said. “I realize that if the dominant thrust of some political decision is seen to be motivated by hatred, then it’s not going to stand. It doesn’t matter how sound my legal proposition is.”

  THIRTY-THREE

  CHAD’S BIG TEST

  In a large meeting room on the first floor of the Human Rights Campaign’s headquarters in Washington, D.C., dozens of staffers sat at long tables, typing furiously on laptop computers and taking calls from the some of the seventy-five field organizers the organization had deployed around the country. Over big-screen televisions, political analysts for all the major cable networks were filling the airtime with babble as the country waited for the polls to begin closing and the results of election night 2012 to begin trickling in.

  Since taking the job more than four months earlier, Chad had been traveling the country nonstop, raising money and urging the Human Rights Campaign’s 1.6 million members to get out and vote. All told, more than $20 million had been raised and contributed in Election 2012, making it the largest mobilization in the organization’s history. A whiteboard listed all the races, from Massachusetts to Hawaii, in which the gay rights behemoth had a stake.

  Would President Obama win a second term, or would his endorsement of same-sex marriage sink him in the swing states, as some aides had feared? Would Tammy Baldwin, a congresswoman from Wisconsin, defeat the state’s former Republican governor to become the first openly gay candidate to be elected to the U.S. Senate? What about the more than two hundred other candidates the organization had endorsed? Chad obsessively checked the exit poll data, hoping to get a read.

  But the races he was following most closely were in Washington, Maine, Maryland, and Minnesota, where same-sex marriage was on the ballot. Gays and lesbians may have been on a winning streak in the courts and in state legislatures, but they had yet to win a popular vote at the ballot box. Tonight he would learn whether the 0-for-32 losing streak had come to an end.

  It was Chad’s first big test as president, and it came as the old doubts about the Proposition 8 case had resurfaced, fanned by Judge Reinhardt’s opinion. If the “liberal lion” of the Ninth Circuit did not think the Supreme Court was ready, the thinking went, maybe the Olson-Boies legal team wasn’t smarter than everyone else after all. William Eskridge, a prominent gay Yale law professor, had filed a brief urging the Supreme Court to let the marriage debate percolate longer before taking action. When members of the legal team, at Olson’s request, had asked him to reconsider or tone it down, taking into account how much the climate had changed as a result of the Prop 8 litigation, resentment had bubbled over into outright anger. “Ellen DeGeneres has done more for the movement than Ted Olson,” Eskridge had snapped. At a recent meeting of some of the movement’s leading legal rights groups, to which Chad was not invited, the consensus was that the Proposition 8 case should go no further.

  Shortly before 6 P.M. Jerome popped into Chad’s office. Chad had a sore throat and a bad case of the sniffles. He was talking to a reporter. Jerome kissed him on the top of his head, put the jacket and red tie that he had brought for him from home on a chair, then headed back to their apartment to change out of his sweatshirt into something more suitable. “Back soon,” he whispered.

  Several press releases, prepared by his staff for all possible outcomes, awaited Chad’s approval. One read, “2012: The Year LGBT People Won at the Polls.” After reading the other, which would be released in the event of one or more losses, he instructed his director of media relations, Michael Cole-Schwartz, to make a change.

  “It’s the word ‘heartbreaking’ I didn’t like,” Chad said.


  “I wanted to make sure it was emotive, that we feel people’s pain.”

  “Yes, but what people are going to be looking for is hope. What’s next.”

  Four years earlier, Chad and Kristina had sat in that suite in San Francisco and made their pact. Out of one of the worst days of Chad’s professional life had come something good. Proposition 8, like the police raids that sparked the Stonewall riots, had become a catalyst for change. The trial had forced opponents into open court, where they were required to defend their views, and the country was having a national conversation on the nature of equality.

  Polling showed that support for same-sex marriage was growing across every demographic, albeit at different rates, a remarkable transformation in public attitudes that had accelerated since 2010 and the filing of the case. The Pew Research Center would soon release data showing that 14 percent of Americans who supported same-sex marriage used to hold the opposite view, comprising more than a quarter of those who now believed that gays and lesbians should be able to wed. Republicans continued to oppose same-sex marriage, but by smaller margins. The nation had come to a clear consensus that sexual orientation was a trait, not a choice, and more and more Americans, regardless of age, race, political ideology or religion, were coming to embrace the idea that who you were, and who you loved, should not dictate who you could marry.

  “This is the most significant, fastest shift in public opinion that we’ve seen in modern American politics,” said Alex Lundry, a Republican political consultant who served as director of data science for Mitt Romney’s presidential campaign and was analyzing the same-sex marriage data for Mehlman’s Project Right Side. “And what is remarkable about it is that no demographic has been immune. You name it, and it has shifted in favor of gay marriage.”