Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  “May your love never falter,” Harris said. “By the power vested in me by the state of California, I now pronounce you spouses for life.”

  On the grand staircase leading up to the balcony, the San Francisco Gay Men’s Chorus waited for the newlyweds to make their way downstairs. Already, other couples had begun to gather, some pushing wheelchairs, others strollers. One woman, sobbing with happiness and dressed in white, thrust her flowers into Sandy’s hand. They had come to join the ranks of the married, a status Justice Kennedy had said would confer upon them “a dignity and status of immense import.”

  Then the chorus began belting out a song based on Milk’s most famous speech.

  “The young gay people in the Altoona, Pennsylvanias, and the Richmond, Minnesotas, who are coming out,” Milk had said in 1978. “The only thing they have to look forward to is hope. And you have to give them hope. Hope for a better world, hope for a better tomorrow, hope for a better place to come to if the pressures at home are too great. Hope that all will be all right.”

  Forty-four years after Stonewall, and thirty-five years after Milk’s speech, that dream, at long last, seemed within reach. “Equal feels different,” Jeff said, directly after he and Paul were married. Kris, contemplating the last four-plus years, put it this way: “It’s like, you’re good, you’re not good, you’re trying to get it all regulated.” She’d looked skyward, and then over at Sandy. “It’s all good now. From here on out, it’s all good.”

  As for Chad, he just stood on the steps of City Hall, chin lifted, grinning like an idiot, listening to that chorus sing:

  “You gotta give ’em hope, you gotta give ’em hope,” the words rang out, a clarion call. “Oh, you gotta give ’em hope.”

  Ted Olson, on the left, and David Boies share a laugh as the team readies for trial. The odd-couple pairing—Olson represented George W. Bush and Boies served as Al Gore’s lawyer in the disputed 2000 presidential election—generated headlines and helped change the nature of the debate over same-sex marriage.

  Kristina Schake and Chad Griffin plot strategy in the war room as David Boies, on the right, looks on. The constitutional challenge to Proposition 8 was always intended to be a vehicle for public education, and the legal and political operation worked hand in hand to convince both the courts and the public as the case made its way up to the Supreme Court.

  The four plaintiffs in the Proposition 8 case were a bundle of nerves on the morning of the first day of trial. From left to right: Paul Katami, Jeff Zarrillo, Kris Perry, and Sandy Stier.

  “Any case has its trying elements and its challenges,” Chuck Cooper remarked, regarding his defense of California’s Proposition 8, “and this one had more of them and at different kind of levels than any case, honestly, that I’ve been involved in.”

  “Prove it,” Judge Vaughn R. Walker thought as he read through the competing filings in the Proposition 8 case. The result was a first of its kind federal trial, with evidence and testimony that delved into the history of marriage, the science of sexuality, parenting, and the long record of discrimination against gays and lesbians. By deciding to hold a trial, the judge subjected all the rationales offered by supporters of same-sex marriage bans to the crucible of cross-examination.

  “A standing ovation for our plaintiffs!” Olson exclaimed when everyone arrived back at the war room after the emotional, and draining, experience of testifying. Here, he hugs Sandy and Jeff talks with Boies while Kris looks at Olson’s cover essay for Newsweek entitled “The Conservative Case for Gay Marriage,” which had just hit the newsstands.

  During the trial, some of the younger members of the legal team managed only a few hours of sleep each night. Pictured here, from left to right: Ted Boutrous, Ted Olson, Olson’s wife, Lady Booth Olson, David Boies (with his back turned), Chris Dusseault, Matt McGill, and Amir Tayrani.

  From left to right: Kristina, Adam Umhoefer, and Chad and Michele Reiner strain to hear what is happening behind closed doors. Minutes earlier, Judge Walker had released an advance copy of his historic ruling, and inside the lawyers were explaining it to the plaintiffs.

  Terry Stewart, the chief deputy of the City of San Francisco, is pictured on the left, chatting with David Boies and Ted Olson. The City of San Francisco intervened in the case on the side of the plaintiffs, and Stewart found many of the witnesses who testified at trial. She and Boies worried far more about what the Supreme Court might do in their case than Olson did.

  “The time for waiting is over,” Academy Award–winning producer Bruce Cohen said, when Chad asked him whether he would be willing to buck the incremental strategy establishment gay rights groups were pursuing to win marriage equality for gays and lesbians one state at a time and join the team bringing a federal lawsuit challenging Proposition 8 and bans like it nationwide. In the foreground here are Cohen (right) and AFER board member Dustin Lance Black, an Academy Award–winning screenwriter, at the courthouse. Cleve Jones, the creator of the AIDS quilt and an AFER board member, and Adam Umhoefer are standing in the background.

  The Supreme Court nixed Judge Walker’s plan to broadcast the trial, but it could not stop the AFER team from recreating it. 8, the play, featured an all-star cast and was seen by nearly a million viewers on YouTube—far more, Walker remarked, than likely ever would have watched the actual trial. On the bench: Brad Pitt as Judge Walker. Front row (left to right): Martin Sheen, George Clooney, Jamie Lee Curtis, Christine Lahti, Matt Bomer, Matthew Morrison, and Kevin Bacon.

  Celebrating a win at the Ninth Circuit: From left to right: Kris’s son, Spencer Perry, Kris, Sandy, Paul, Jeff, Chad, and Adam Umhoefer.

  “In the eyes of the government, my family is finally normal,” Spencer Perry told reporters after the Ninth Circuit victory, as his twin brother, Elliott, and mom listen and Sandy fights back tears.

  Olson practices his Supreme Court argument in a moot court session. Over and over, he returned to the fact that on fourteen different occasions, the Supreme Court had declared marriage to be a fundamental right. “No one in the country as good as he is,” Boies said of his partner’s Supreme Court advocacy. Four years of work, boiled down into a twenty-minute argument. “It’s a diamond that’s been polished and set.”

  Enrique Monagas, the young lawyer who filed the original complaint in the case, holds up his smartphone so everyone can watch the plaintiffs’ appearance on the nightly news. From left to right, Paul’s sister, Maria McGuire, AFER board member and AIDS quilt creator Cleve Jones, Paul, Enrique, Jeff Zarrillo, and Jeff’s parents, Linda and Dominick, look on. “I couldn’t do this,” Monagas, who is gay, said. “I couldn’t put myself in this situation of being the face of this movement.”

  After her husband took the case, joked Lady Booth Olson, the Olsons’ social circle changed. Here, Ted Olson talks to top White House adviser Valerie Jarrett and Chad at a cocktail party in honor of the plaintiffs in Georgetown. The party was held after intense internal White House deliberations over whether the Obama administration should file a brief with the Supreme Court that Prop 8 was unconstitutional.

  Jeff and Paul share a kiss at Chad’s apartment on the morning of the Supreme Court arguments. Also pictured are Kris, Sandy, and AFER staffers Elizabeth Riel and Melissa Gibbs.

  Before the challenge to Proposition 8 was even filed, Rob Reiner made a prediction: “We are going to the Supreme Court! And we are going to win!” Here, the movie director stands outside the nation’s high court on the morning of oral arguments with his wife, Michele Reiner, Adam Umhoefer, and AFER board members Lance Black and Ken Mehlman, who ran George W. Bush’s reelection campaign and played a critical role in galvanizing Republican support for same-sex marriage.

  Edie Windsor after her case challenging the federal Defense of Marriage Act was argued before the Supreme Court. Though they were legally married, Edie and her wife, Thea, were treated by the government as legal strangers after Thea passed away, stic
king the widow with a $363,000 estate tax bill. Her lawsuit, like the one challenging Prop 8, was filed against the better judgment of the gay rights legal community, which worried that a premature challenge could lead to a Supreme Court setback.

  The Proposition 8 plaintiffs arrive at the Supreme Court to hear the decision of the justices. “No matter what happens, we won,” Kris said on the bus ride over.

  Days after the Supreme Court ruling, a record 1.5 million celebrated equality at the San Francisco gay pride parade.

  For Chad and the plaintiffs, it was the gay equivalent of a ticker-tape parade after winning the Super Bowl. Here, Chad snaps a photo of signs featuring the stick-figure family that supporters of Proposition 8 had used as a logo during the campaign to reinforce their “Protect Our Children” motto, only now the figures were standing on their heads, beneath a single word: “Overturned.”

  Marriage is the “principal happy ending in all of our tales,” one expert witness testified during the trial. Here, Kris and Sandy finally get theirs, exchanging vows on a balcony at San Francisco City Hall.

  A NOTE ON SOURCING AND OTHER MATTERS

  Most journalists believe they have a book in them, and I was no exception. But writing is a solitary, neurosis-inducing endeavor, and I kept waiting for the story that would compel me to embark on such journey, the book I could not not write. I found it in the spring of 2009, when I began reporting for the New York Times what would become the first in-depth look at how Ted Olson came to embrace the cause of same-sex marriage.

  The story ran on the front page. Afterward, I found I could not let it go. I knew both Ted Olson and David Boies from covering the Florida recount in the deadlocked 2000 presidential election, and had come to know Olson even better over the course of my reporting on the Bush administration. I met Olson in Washington and Chad Griffin in New York to talk about the idea of doing a fly-on-the-wall account of this chapter in the nation’s civil rights history.

  After talking it over with the four plaintiffs, they agreed. For more than four years, leading up to and throughout the trial and subsequent legal proceedings, I had complete and unfettered access to the plaintiffs and their team. I wandered freely in and out of rooms where the lawyers prepared witnesses and debated legal strategy. I sat in the war room as Chad and his team pitched reporters on stories, crafted messaging strategies, and mounted a campaign aimed at winning over the country. When the lawyers and the plaintiffs and the AFER war room team arranged conference calls, I was often on the line. Kris and Sandy and Jeff and Paul allowed me into their homes and into their lives. I rode with them to court, sat next to them as they digested every opinion handed down in the case, flew back with them to California after the Supreme Court ruling, and was there, eventually, when Kris and Sandy married.

  The thoughts and feelings of the main characters are as described to me, often contemporaneously, or to each other, in the moment. The dialogue described in this book was personally observed by me, unless otherwise noted. In some instances, particularly at the beginning of this narrative before the trial began and I was fully embedded with the team, and in describing the Obama administration’s internal deliberations, I had to rely on the accounts of others. Endnotes provide readers with the sourcing in those cases, and where snippets of conversation are quoted in those instances, it is based on the verbatim recall of participants and, often, their notes. Similarly, the vast majority of the e-mails, texts, and documents quoted in this book were seen by me personally. If they were described by others, then that is noted. I have also delineated quotations that were the result of my interviews with participants, versus dialogue that I was there to witness, by providing endnotes to make that clear.

  It was agreed from the beginning that my access to the legal and war room team came with no prepublication review or veto rights. The only restriction was that I promised to keep everything I learned confidential until after the legal proceedings were concluded, and I was not given access to materials produced in the case that were sealed by the court or otherwise subject to court-ordered confidentiality.

  It was an enormous act of faith on everyone’s part, especially for lawyers trained to guard such privileged discussions, and I will be forever grateful to everyone involved for their trust.

  I also owe a debt of gratitude to Chuck Cooper, whom I also approached at the outset of the Proposition 8 case. He did not agree to give me contemporaneous access to his team or clients, with the result that much of this book is told from the vantage point of the plaintiffs. But we occasionally talked during the legal proceedings, and he promised to sit down with me once the last argument had been made. He was a man of his word, and he spent many hours, first patiently explaining his thinking and decision making in a series of lengthy interviews following the Supreme Court arguments, then, many months later, trusting me to tell the story of his family.

  Judge Walker deserves my heartfelt thanks for the hours he spent with me after the trial had concluded, as do the dozens of people in the Obama administration who shared their knowledge of events with me.

  I am also thankful to the lawyers on both sides of the DOMA case. Robbie Kaplan and Edie Windsor sat with me on multiple occasions as their case headed to the Supreme Court and afterward. Paul Clement, the lawyer who defended the law, also agreed to several interviews in which he explained his strategy.

  This book, which took close to five years to report and complete, would never have happened but for the support of my agent, Sloan Harris, who believed in me when I doubted myself, the guidance of my brilliant editor, Ann Godoff, who believed in this book back when no one knew where the litigation or the country was headed, and finally her deputy editor, Benjamin Platt, who played the role of therapist during occasional panic attacks.

  This project also would not have been possible without a generous grant from the Ford Foundation, which allowed me to take leave from the New York Times to write this opus, and without the support of Jill Abramson and Matthew Purdy at the New York Times, who agreed to give me the time off. A big shout-out to Julie Tate, whose sharp fact-checking eye saved me from many a mistake.

  On a personal note, I want to thank my father, Bob Becker, for instilling in me a love of books in general, and To Kill a Mockingbird in particular. He is my Atticus Finch. Many thanks to my brother, Scott, for putting me up during reporting jaunts to Washington, D.C., to my friend Carleen Hawn for lending me her apartment during the many weeks I spent in San Francisco as this project got off the ground, and to all the friends who offered their advice along the way.

  Anyone who knows me knows I would be remiss if I also did not thank my trusty canine companion, Humphrey, who spent hours staring at me as I stared at a computer screen. And finally, as I wrote I thought often of my wonderful aunt, Ellen “Curly” DeLeyer, who was an inspiration to me in too many ways to count.

  NOTES

  SECTION I

  Section I: Some of the scenes and information in section I of this book first appeared in a story written by the author. Jo Becker, “A Conservative’s Road to Same Sex Marriage,” New York Times, August 18, 2009.

  CHAPTER 1: THE “PACT”

  “Look around the room”: Author interviews with Kristina Schake and Chad Griffin, August 6, 2010.

  “It feels,” he told Kristina: Author interviews with Chad Griffin and Kristina Schake, summer 2009, January 2013.

  “That night, we made a pact”: Author interview with Kristina Schake, summer 2009.

  A staggering $44.1 million: “Proposition 8: Who Gave in the Gay Marriage Battle,” Los Angeles Times, June 30, 2012.

  “Every single time”: Author interviews with Kristina Schake, summer 2009; Rob and Michele Reiner, 2010; and Chad Griffin, January 2013.

  Just then, an acquaintance of the Reiners: This section is based on author interviews with Kate Moulene, Chad Griffin, Kristina Schake, and Rob and Michele Reiner, spring and summer 2009.

&n
bsp; It was a brief conversation: Author interview with Michele Reiner, January 24, 2013.

  “My ex-brother-in-law is a constitutional lawyer”: Author interviews with Michele Reiner and Kate Moulene, August 2009.

  “I’ve watched for twenty years how he treats people”: Author interview with Kate Moulene, August 19, 2009.

  “This sounds crazy”: Author interview with Kristina Schake, summer 2009.

  “The whole issue has been too much”: Dean E. Murphy, “Some Democrats Blame One of Their Own,” New York Times, November 5, 2004.

  It was not, as Clinton claimed: Author interview with Richard Socarides, December 19, 2012.

  “If someone as conservative” . . . “It could be a game-changer”: Author interviews with Chad Griffin and Rob Reiner, summer 2009.

  CHAPTER 2: A CONSERVATIVE ICON JOINS THE CAUSE

  “I’m going to Washington to meet this guy?’”: Author interview with Chad Griffin, summer 2009.

  “Too often in the debate over same-sex marriage”: Ibid.

  “One-third of gay, lesbian, bisexual, and transgender teens”: Author interviews with Chad Griffin and Ted Olson, summer 2009.