So, despite having been invited, most other LGBTQ civil rights groups and leaders refused to be in the room. They certainly weren’t around the first time I come face-to-face with Ted Olson: tall, still very handsome at sixty-seven, with more floppy blond hair than a teen and a warm, resonant voice that must have proven quite helpful in his many wins in front of those nine justices on the nation’s highest bench.
Our plaintiffs were in the room that day as well. After an exhaustive search for willing couples, we’d finally found Jeff Zarrillo and Paul Katami, who had been together for many years but hadn’t dared marry before the Prop 8 vote for fear of having their marriage certificate ripped up, and Kris Perry and Sandy Stier. Sandy had two sons from a previous marriage that had reached a difficult end in her ex-husband’s alcoholism. She’d found a happy new beginning when she’d met Kris. Kris had twin boys from a previous relationship as well. Together they made a family of six. But Kris and Sandy’s marriage certificate had indeed been torn up when the California Supreme Court deemed then–San Francisco mayor Gavin Newsom’s move to marry gay and lesbian couples in 2004 illegal. Now all Jeff, Paul, Kris, and Sandy wanted was to be able to marry just like their straight siblings could. Lucky for us, they were also brave enough to bear the weight and scrutiny such a case was sure to bring.
Ted took the floor and outlined the path we would have to take to victory. It started with a California federal district court, where the lawyers anticipated the usual filings but foresaw no trial or testimony. “That would be highly unusual,” Ted said. Then win or lose, one side or the other would appeal to the federal Ninth Circuit Court of Appeals. We would win or lose again, an appeal would likely be filed, and we would have to wait and see if the U.S. Supreme Court would “grant certiorari,” the terminology for taking up a case. There, our case would meet the scrutiny of Justice Kennedy and eight others. We knew the risks, but confident that truth and the law were on our side, we were ready to take them.
Then came a revelation: this was not a one- or even two-year task. We were all likely being asked to put our careers and lives on hold for what might prove to be half a decade or more. That was a lot more time than I (or my agents) had expected. With Hollywood’s short-term memory, I would likely be long forgotten by the time this was over.
Then came reassurance: flying in the face of all my assumptions and expectations, Ted didn’t launch into a preprepared, rousing, Hollywood-style courtroom speech about how we had a “real shot” at winning our way up to SCOTUS. Instead, he listened. Ted seemed well aware that he had walked into this room an outsider to our gay and lesbian experiences, and he instinctively knew he needed more than just a legal certitude that marriage was a fundamental right if he was going to win this. He needed to know why we felt so strongly about the word “marriage,” and how those feelings of being left out of its embrace manifested in our day-to-day lives.
I was impressed but not surprised. As a straight, white conservative, Ted had long argued in favor of family values. He knew how to do that effectively. The big difference between him and so many others on the right was that he actually included our families in his definition. So I took a shot that his curiosity was genuine and spoke up: “Well, this is about our lives,” I said. “So I think this case should be about our lives too, our personal lives and our personal stories….I worry that if this becomes a story about two powerful lawyers, or just the legal arguments, we won’t get very far with the people I know back home. Not in Texas, or Arkansas, or Virginia.”
That seemed to grab Ted’s attention. So I carried on. I told him some of my own story, and then turned to our plaintiffs’ stories and asked that we focus a bit less on the constitutional arguments outside of the courtroom—on TV, in lectures, on stages, or in op-eds. “I think it’s important that as much as possible, we put our focus on personal stories: our love, our families, our children. On the experiences my own family and old neighbors back home might relate to. Legal talk won’t change my aunts’ or uncles’ minds. But a good old-fashioned personal story, well…we’ve at least got a shot.”
There’s no telling how much my plea affected Ted and David’s approach, but for the duration of our case, whenever anyone would start to tell their own story, Ted would stop what he was doing and listen. And when he and David took to the airwaves over the next many months, they often led with our plaintiffs’ stories. I’m certain I wasn’t teaching Ted anything he didn’t already know about the powers of persuasion, but what mattered a great deal to me, and ultimately to the way our case was received, was that Ted was genuinely listening to us gay folks. He understood that the most important story in the room wasn’t his own.
Chad was in agreement with this personal focus. We both knew that, win or lose, we had a responsibility to use this platform to make measurable progress toward acceptance throughout our country. With such progress, we could rest assured that lives had been made easier, even without a big win. We both understood that personal stories, not political points, move hearts. And I’d long since learned that hearts are what change minds. And if all those hearts and minds pushed statistics and newspaper opinion polls toward equality, well, that was gravy—after all, Supreme Court justices don’t live in bubbles; they read the papers too.
No moment better defined the value of the assumption-shattering decision to hire Ted than when he penned a cover story for Newsweek titled “The Conservative Case for Gay Marriage.” Instead of preaching to the converted along the coasts, Ted was reaching across what had seemed an impossible divide—to the right, and deep into states like Texas, Arkansas, and Louisiana, where Chad and I had our roots, and Michigan, where my big brother was struggling to replant his. We weren’t using the language of any one part of America to argue this case—that was the myopic, if not arrogant, trap I’d seen too many worthy causes fall into. We were trying our best to speak many languages, to a varied and diverse people, living in every corner of our beloved country.
On May 26, 2009, our legal team filed our case against Proposition 8 in the U.S. District Court for the Northern District of California. Surprising even our own lawyers, the judge assigned to our case, Chief Judge Vaughn Walker, called for an actual trial. This was highly unusual. Now both sides would be forced to enter a courtroom in San Francisco, each team’s witnesses made to raise their right hands and swear to tell the truth, the whole truth, and nothing but the truth under penalty of perjury.
After I shook off the initial shock of having to raise the funds to wage an actual court fight, it began to dawn on me that in a court of law, there would be no refuge for all of the lies, myths, or junk science that had been used in campaign flyers, speeches, and ads against LGBTQ people for generations now. Any shock soon turned to eager anticipation. With both sides under oath, the truth of who I was, who we as a people had always been, and what our families are would be laid bare for the world to see. Without distortion. Finally. Marriage equality, and by extension, our very lives, were about to go on trial.
V
“8”: THE PLAY
BUILT FROM THE TESTIMONY TRANSCRIPTS FROM THE PROP 8 TRIAL
KRIS PERRY
I swear to tell the truth, the whole truth, and nothing but the truth—
SANDY STIER
The first time somebody said to me, “Are you married?” and I said, “Yes,” I would think, “That feels good and honest and true.” I would feel less like I had to protect my kids or worry that they feel any shame or sense of not belonging.
PAUL KATAMI
I shouldn’t have to feel ashamed. Being gay doesn’t make me any less American. It doesn’t change my patriotism. It doesn’t change the fact that I pay my taxes and I own a home, and I want to start a family.
JEFFREY ZARRILLO
I would be able to stand alongside my parents and my brother and his wife, to be able to stand there as one family who have all had the opportunity
of being married; and the pride that one feels when that happens.
KRIS PERRY
If Prop 8 were undone, and kids like me growing up in Bakersfield right now could never know what this felt like, their entire lives would be on a higher arc. They would live with a higher sense of themselves that would improve the quality of their entire life.
SANDY STIER
And that is what I hope can be the outcome of this case. I hope for something for Kris and I, but other people, over time, would benefit in such an even more profound, life-changing way….That’s what I hope for.
I sat with Rob, Michele, Cleve, our plaintiffs, their kids, and Chad in that courtroom’s gallery over several weeks, listening to moving testimony and compelling political and scientific arguments delivered under oath by experts. The trial was a master class in the power of storytelling. The arguments made by those opposed to marriage equality began to fall apart when defended by people under oath. Opposition witnesses who had waxed poetic about the “dangers of homosexuals” refused to testify, and even hid from our side’s subpoenas. The opposition’s one and only remaining “expert on marriage” folded under David Boies’s cross-examination, for all intents and purposes flipping to our side on the stand, and later confirming this flip in The New York Times.
By the second week of the trial, what LGBTQ people had long known was finally becoming crystal clear to courtroom observers—the opponents of equality had freely said whatever they wished in campaign commercials, no matter how wildly untrue. But now, in a court of law, those same opponents had to tell the whole truth or be thrown in jail. So with their right hands raised, our fates suddenly became aligned, because their physical freedom meant our liberation.
And as the trial drew to a close, no matter where one stood on the wisdom of our strategy, no one could deny the enormous, historic nature of this case. Slowly, some of the detractors in the LGBTQ community began taking baby steps back our way.
On January 25, 2010, after ten days of testimony, both sides rested their case. Judge Walker chose to delay closing arguments as he considered all the points he’d just heard—his personal preference. When he finally reconvened us on June 16, he welcomed us all back by saying, “It may be appropriate that the case is coming to closing arguments now. June is, after all, the month for weddings.” That prompted laughter, and broke the courtroom’s tension, at least temporarily. Ted delivered his stirring closing argument, making a case for a fifty-state decision, but demanding that at the very least, Prop 8 had to go. David Boise later commented that it was the best closing argument he’d ever witnessed. Then the opposition’s lawyer, Chuck Cooper, with his slicked-back silver hair, gave his closing statements, interrupted many times by the judge, who struggled with Cooper’s reasoning—that somehow gays and lesbians marrying “deinstitutionalized” marriage, and thus would keep heterosexuals from procreating. Cooper claimed that “responsible procreation,” not animus, was at the heart of this marriage ban.
Less than two months later, on August 3, our team was given notice that a decision was coming the following day. We were each assigned cities to be in. In case of a loss, Chad wanted us to do our best to keep folks from rioting. I was assigned to Los Angeles with Bruce Cohen. I was in his living room when the decision was released.
U.S. DISTRICT CHIEF JUDGE VAUGHN WALKER’S PROP 8 CASE CONCLUSION
AUGUST 2010
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
“We won. We won big,” Ted said moments after reading an advance copy of Judge Walker’s sweeping decision. This was the kind of decision that could bring marriage equality to all fifty states if it survived its journey to the U.S. Supreme Court. That thought made my heart soar. The nationwide celebrations in the streets that followed its wide release were also thrilling. My mom called from Virginia. “You’re on TV! You’re famous!” The kid in me ate up her enthusiasm. Her gay son had just popped up on CNN making a pro–gay marriage speech, and that was good news? Boy, we’d come a long way.
But I explained that we still had to make it through the Ninth Circuit Court of Appeals before even dreaming of our case being picked up by SCOTUS. We had a long way still to go.
* * *
—
One big challenge to the effectiveness of our myth-busting trial was that those opposed to marriage equality had successfully fought all the way to the U.S. Supreme Court to ban cameras from the courtroom. It seemed they knew they had things to hide. Their win to ban cameras meant that only those in the courtroom or those willing to read reams of transcripts understood the historic, revelatory, and decisive nature of what had transpired. The rest only got glimpses—what news anchors and papers shared.
But our opposition couldn’t stop me from putting my storytelling skills to use to help solve this problem. I briefly considered writing a movie based on the transcripts, but a movie takes many years to make and would’ve missed the moment. However, with the right collaborators, a play can be written and staged within a year. So with the help of Jenny Kanelos, Rory O’Malley, and Gavin Creel of Broadway Impact, we constructed a plan to premiere a new play on Broadway based on the trial’s transcripts as a benefit fund-raiser for the case, then to use that play as an outreach and education tool in the areas that most needed to hear the stories and evidence that had produced such a sweeping decision. Hollywood wouldn’t hear much from me for a good long time still, but my skills weren’t going unused.
Ultimately, “8”: The Play premiered in New York and Los Angeles with casts that included John Lithgow, Brad Pitt, George Clooney, Christine Lahti, Martin Sheen, Jamie Lee Curtis, Jesse Tyler Ferguson, Kevin Bacon, Yeardley Smith, and Jane Lynch, bringing our plaintiffs’ moving stories even more attention and raising millions of dollars to support our cause. The show then took to the road, where our plaintiffs’ stories and the trial’s actual words would reach all fifty states and eight countries.
In this way and so many more, we were sharing our stories and making our case in every corner of our diverse country. We knew it would take Ted and David, red and blue, conservatives and progressives working together to move the nation’s heart toward equality. And as every turn in the road made our journey longer, not one of us doubted that our sacrifices were worth it. Our little team had been called to mine and share the very best of our lives, our families, and our very different American journeys. Like I told my mom, even with this one big win in California, the road ahead was still long, and any victory was far from certain, but our efforts along this road would prove to be our greatest honor.
CHAPTER 21
Virginia Roads
I
My mom’s voice was shaking when she called. It was tough to tell these days if that was due to emotional duress or to the side effects of the cancer treatments she’d long since finished but which had further harmed her muscular strength. Her days and nights were now filled with fibromyalgia pain, belabored breathing, and the blurring effects of painkillers. But, it turned out this call wasn’t about her own pain. “Hey, Lancer, can you call Marco?”
And so I played my part in our increasingly flipped parental roles. “It’s past midnight in Michigan now, and in Virginia. Shouldn’t you both be asleep?” I asked her.
“Don’t worry about how late it is. He needs to hear your voice tonight.” She was firmly the parent again. This wasn’t a suggestion. And it wasn’t something she had asked me to do before. Even during our less connecte
d days, Marcus and I were closer than most siblings, likely because of all we’d survived together. He’d always reached out to me if he needed something, or just wanted to talk. Since he’d come out, our talks had become even more regular. So I worried what calamity was so severe that he had held it from me.
In conversations here and there, I’d already deduced that the man Marcus had met online and moved out to Michigan to be with hadn’t ended up ticking all the boxes Marcus had hoped. The guy struggled to make ends meet, and couldn’t resolve the simplest of conflicts with anyone. Marcus knew his boyfriend was no Prince Charming, but no one could deny that being in a relatively closet-free relationship was yielding benefits. Marcus still had beers and smokes now and then, but the hard drug use suddenly stopped. No rehab needed. He said he’d simply lost the desire. For the first time since our father’s abandonment, his self-esteem was on the mend. With that boost, Marcus had also quit his knuckle-breaking job at Sears Auto Center and started attending college to study design and architecture.
I had always known that Marcus was the smartest and most creative of us three boys. He had paved the way for my own entry into drama club, and inspired me to draw and paint, and now his sky-high grades in college were measurable proof that he was the best of us, not the bad seed, as too many had assumed. So as I dialed the phone, I secretly hoped that his self-confidence had improved enough that he was ready to unload his half-rate beau.
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