Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  By the end of April, she was running out of time. Any day now, the California Supreme Court was expected to rule on a lawsuit that argued that technically, Proposition 8 had revised, rather than amended, the California constitution, and as such was invalid; a quirk in California law gives voters the right to amend the state constitution, but requires a vote of the legislature to revise it. Few had any hope that the challenge would succeed.

  Assuming it did not, same-sex marriage supporters would have no further means of redress in the state’s courts. At that point, Olson worried, someone was bound to challenge the initiative in federal court; however much the established gay legal groups protested, there was simply no way to stop it.

  He wanted their lawsuit to be the challenge to Proposition 8. “The worst-case scenario is that the first case to reach the Supreme Court is an ill-conceived suit brought by inexperienced lawyers,” he had written in the “Time Is Now” memo for Chad. “It is imperative that the Supreme Court view the issue through the lens of the right case.”

  The only way to ensure that was to be the first to file. Yet Kristina had yet to identify a single couple willing to stand as plaintiffs, much less the six that Olson wanted.

  Both she and Chad felt it was important to find some couples of color. They intended to use the lawsuit, and the attention it would draw, as a vehicle to mount a national public education campaign on same-sex marriage. Proposition 8 had passed in part because the campaign against it had done little to try to reach out to California’s large African American, Asian, and Latino minority groups, and they did not want to repeat that mistake.

  They could talk all they wanted about the similarities between the civil rights battles of the 1960s and the fight gays and lesbians were waging for equality today, but the truth was that 70 percent of black voters, who turned out in record numbers to vote for President Obama, had supported Proposition 8, and more than half of Latino and Asian voters had too.

  So on the afternoon that she learned that her dream couple—a Latina lesbian and her white partner who had been together forever—had decided to back out, she walked down the hall to Chad’s office, plunked down in one of his chrome-and-black-leather chairs, and just shook her head.

  “What are we going to do?” she said.

  As it happened, Chad had just gotten off the phone with Kris Perry, the head of the statewide early education office funded by the cigarette tax increase they had passed for the Reiners. She and her partner, Sandy, both in their forties, had been together for ten years.

  “What about Kris?” he asked.

  “I think she’s married,” Kristina said.

  “I don’t know about that.”

  Kristina perked up. “Call her!”

  Chad picked up the phone. It turned out that Kris had indeed tried to marry Sandy, when San Francisco first began issuing marriage licenses, but theirs was among the licenses invalidated when the California Supreme Court ruled that the mayor had no right to disobey a state law whose constitutionality the courts had yet to consider.

  Chad knew that the couple wasn’t perfect. Sandy, an IT director for Alameda County, had been married before, to a man, a complicating though not insurmountable factor in a case that rested in part on convincing the court that sexual orientation was not a choice. Plus, the two women had four teenage boys, two conceived by Sandy and her ex-husband, and two Kris had conceived in vitro with her former partner.

  Olson had wanted to avoid couples with children. Opponents of same-sex marriage used children as a hot-button issue, maintaining that they do better when raised by a mother and father, and he worried it could introduce a whole complicated set of parenting issues into the mix that were best avoided.

  On the other hand, Chad and Kristina really knew the women; there would be no surprises with these two. They were warm and quick-witted, and as the head of a state agency, Kris knew how to weather a political storm, an experience that Chad felt would serve them well in the high-pressure months to come.

  At this late date, they would do, Chad decided, and he filled Kris in on the plan. Warning her that it would be a huge commitment, he said, “Maybe you should sleep on it.”

  But Kris was so excited that she immediately phoned Sandy at work. “Come home right now,” she said. “I want to tell you about a conversation I just had.”

  A few weeks later, a similar discussion took place at Theresa’s Family Restaurant in Burbank, where Jeff Zarrillo lived with his partner, Paul Katami, and their two French bulldogs in a small but tasteful California bungalow. The two had met eight years earlier in an online dating success story.

  Paul, thirty-seven, was an intense former actor turned personal trainer who grew up in San Francisco. Jeff, a year younger, was a stocky self-described Jersey boy and Dallas Cowboys fan who hadn’t quite managed to lose the accent in his years out west. He had worked his way up from a ticket taker at a Los Angeles movie theater to its general manager.

  Friends had urged them to get married when the window in California opened. A few years earlier, Jeff had gotten down on his knee and proposed, and the two had even exchanged rings. But with opponents of gay marriage already gearing up to put Proposition 8 on the ballot, they were reluctant to put themselves and their family through the emotion of a wedding that could later be invalidated at the polls. Instead, they had decided to wait to see what California’s voters did.

  During the Proposition 8 campaign, they had stayed on the sidelines while their neighbors put up YES ON PROP 8 lawn signs; one had even quoted the Bible to them and declared their relationship sinful. But a television ad urging voters to pass the initiative so infuriated the couple that they decided they had to do something. Over images of dark, ominous skies, the ad suggested that gay marriage was a threat to freedom, faith, and children. “There’s a storm gathering,” one person featured in the ad states. “The clouds are dark and the winds are strong,” says another. “And I am afraid,” says a third.

  “This is literally making me nauseous,” Paul told Jeff.

  Drawing on Paul’s skill at making exercise videos, they gathered some friends and shot a homemade public service announcement. “We will weather this storm,” the video said, but opponents of same-sex marriage were “using fear to cloud the truth.”

  One of the people in the video happened to be Chad and Kristina’s realtor. Knowing only that they were interested in finding couples for a public service campaign, he made the introduction. Kristina and Chad met with the couple multiple times. Paul and Jeff were shocked by how much the two consultants knew about them; Chad even asked about Paul’s previous roles in a few small art-house movies. After reassuring themselves that the films contained no nudity or other potentially embarrassing scenes, they finally filled the couple in on their plan to file a lawsuit.

  Afterward, at the diner, the couple talked it over with Jeff’s parents, who were visiting from New Jersey. They had been married for forty-one years, and they knew what it would mean to their son. “Just as long as you are safe,” Jeff’s mother said, grabbing their hands.

  The consensus of the legal team was that the case would likely be decided fairly quickly; while no federal case like this one had ever been filed, all but one of the cases that had come before state courts had been decided based on legal motions alone, with no need for a trial. Chad and Kristina told the plaintiffs they would likely never have to testify.

  By lunch’s end, the two men had made up their minds. They weren’t cops or bookstore owners. And they, like Sandy and Kris, were white. But they were willing.

  The movie version of the story of how Olson decided upon his choice of Democratic co-counsel goes like this: Early on, in a flash of genius, he tells Rob Reiner he has the perfect candidate in mind—David Boies, a genial but ruthless trial lawyer and, in the Bush v. Gore election dispute, the man who represented Gore.

  And indeed, that is the way the two men te
ll it. But in fact, Boies wasn’t Olson’s first, or even second, choice. Initially, Olson had wanted a Supreme Court specialist like himself, preferably someone the gay community knew and trusted.

  The first person Olson approached was Paul Smith, an openly gay, savvy Supreme Court advocate, and the man who won Lawrence v. Texas. He was at his desk when Olson phoned, saying he wanted to talk to him in strict confidence. Smith, who had recently been asked to join the board of Lambda Legal, had to promise not to share what Olson was about to say with anyone in the movement.

  Before filing the Lawrence case, Smith had analyzed what he thought was possible at the Supreme Court. Both Justice Kennedy and then-justice Sandra Day O’Connor had voted the right way in the Romer case. That gave him the courage to go forward.

  But he hadn’t argued that gays and lesbians ought to be considered a “suspect” or “quasi-suspect” class deserving of heightened scrutiny, as Olson was doing. It was, Smith had felt, too big an ask. The Supreme Court was clearly reluctant to create new suspect classes—it had last done so in the 1970s. And, perhaps more important, the justices liked to move incrementally. If heightened scrutiny applied, not only would the sodomy laws at issue in Lawrence likely fail to meet constitutional muster, but so too would policies such as Don’t Ask, Don’t Tell, banning gays and lesbians from openly serving in the military.

  In the end the Court had wound up striking down sodomy laws in Lawrence without reaching the question of what standard of scrutiny should be applied to gays and lesbians. In the wake of that victory, Smith had entertained the idea of bringing a federal challenge to same-sex marriage bans. But, he told Olson, he ultimately decided against it after talking to a number of former Supreme Court clerks. There was a big difference in Kennedy’s mind, they had told him, between telling a state it had no right to criminalize private sexual relationships and telling all fifty that there was no rational reason to refuse to legally sanction those relationships.

  Olson disagreed, telling Smith he believed he could get Kennedy’s vote. But the time to act was now, while Justice Stevens was still on the Court. Stevens, the leading member of the Court’s liberal wing, was known to stop by Kennedy’s chamber and chew over cases, a judicial courtship that Olson believed had given him a fair amount of influence with the Court’s most unpredictable swing voter.

  “We’ve got the right district in the right circuit with the right opponents at the right time,” Olson would later say. “You gotta be willing to take chances. You can’t be afraid to swing for the fences.”

  Smith hoped Olson was right. But he wasn’t sure enough to sign on. It’s just too risky, he told Olson, wishing him luck.

  Another potential co-counsel whom Olson considered was Kathleen Sullivan, a constitutional law professor and litigator named by the National Law Journal as one of the most influential lawyers in the nation. She was a lesbian, and she had served as co-counsel on the losing side of the first, unsuccessful challenge to laws criminalizing sodomy, Bowers v. Hardwick.

  Bringing her on board could help with the gay community in the short term, but Olson had to consider the long game. Justice David Souter was planning to retire at the end of the Court’s term, and Sullivan was thought to be on President Obama’s short list to replace him. If she joined the team and then was nominated and confirmed, she would have to recuse herself in the event the case reached the Supreme Court, which would make the odds of winning much steeper. So after an initial outreach, Olson reluctantly concluded he had to resume his search.

  By May, he too was running out of time. Kristina and Chad had the plaintiffs, but he had yet to find co-counsel.

  It was then that he hit on the idea to call Boies. In addition to representing Gore in the recount, Boies had successfully taken on goliaths such as Microsoft, was the go-to legal shark for some of Wall Street’s most powerful players, and had represented everyone from Yankees owner George Steinbrenner to radio talk show host Don Imus.

  Since the deadlocked election, the two men had formed a surprising friendship. As Boies put it, in all-consuming cases like that one, “there are only a few people you can really talk to—a few reporters, maybe your spouse, and the lawyers on the other side. They are the only ones who are as obsessed as you are.”

  They made for an odd pair, and not just because of their politics. Boies, lanky and balding, with a beaked nose that stopped just short of looking predatory, eschewed the type of bespoke suits and Prada shoes Olson favored, instead religiously wearing to court rumpled blue Lands’ End suits, black Merrell sneakers, and a twenty-dollar Casio watch he strapped over his shirtsleeve. It was a cultivated everyman image that belied a lifestyle that afforded him private jets, a Manhattan pied-à-terre, and homes in places like the Turks and Caicos.

  But the two lawyers soon found they had much in common, starting with a love of very expensive wine; Boies owned a vineyard in Lake County, California, while Olson’s cellar was considered among the finest in the D.C. area. Both men were in their late sixties but had the energy of much younger men and, despite their wealth, showed no sign of slowing down.

  Together with their wives and friends like former NBC anchor Tom Brokaw, they had begun taking annual bicycling trips through Europe. And while they generally avoided talking politics, their discussion of the legal issues of the day had convinced each that neither was the partisan they were made out to be. So when Democrats had held up Olson’s appointment to become President Bush’s solicitor general because of his role in the 2000 recount, Boies had called several senators he knew to personally vouch for his friend and lobby for his confirmation.

  Boies had long admired Olson’s ability to anticipate the questions that the justices were going to throw his way and strip the vulnerable points out of his argument before they pointed to them. Olson, for his part, was impressed with Boies’s quick-footedness in a courtroom. His ability to rapidly digest complex subject matter was remarkable, especially given that he suffered from dyslexia. And, unlike Olson, he was a virtuoso at deposing and cross-examining hostile witnesses, a skill that could prove helpful in what Olson considered the unlikely event of a full-blown trial.

  After securing Chad’s and the Reiners’ enthusiastic go-ahead—“Katie, bar the door!” Rob Reiner recalled saying of the marquee idea of having “both the winner and the loser of Bush v. Gore on my team”—Olson called Boies’s firm on May 10, and the two connected a few days later.

  The Democratic lawyer hadn’t given much thought to the issue of gay marriage until he saw the long lines of same-sex couples waiting for hours to get married after San Francisco’s mayor directed the city clerk to issue marriage licenses in 2004. He recalled gazing at the televised images and thinking, “Why shouldn’t they get married?”

  The case was perfect for Boies. Not only was it challenging legally, but its history-making potential and odd-couple story line was sure to garner a huge amount of press interest, and Boies “liked his column inches,” as one person at his firm put it, almost as much as he liked to win.

  “Let’s do it,” he told Olson, even agreeing to a deeply discounted fee that, at $250,000 plus expenses, represented a fraction of what Olson would be paid.

  FIVE

  GOING PUBLIC

  Enrique Monagas, an associate at Olson’s firm, could barely swallow as he nervously glanced over every few seconds at the clerk’s window in San Francisco’s federal courthouse, a stack of papers clutched in his hand.

  It was May 22, 2009, the Friday before Memorial Day weekend. The team of lawyers that Olson had begun assembling to work on the Proposition 8 case had just gotten word that the California Supreme Court was going to issue its ruling on the last-ditch challenge to Proposition 8 following the long weekend.

  Timing is everything, and Olson and Chad had put a lot of thought into when they should file their lawsuit. Olson, still worried about the prospect of other federal challenges to Proposition 8 jumping out ahe
ad of theirs, did not want to wait to file until after the California Supreme Court had ruled. But Chad, the expert on messaging and news cycles, knew it would not look good to announce a federal lawsuit on behalf of same-sex couples before the state’s high court had even ruled against them. The plan was to announce it with maximum fanfare directly after the ruling; it would be ruined if it dribbled out.

  So they had sent Monagas, the youngest and least-known lawyer on the team, to the courthouse that day. He was under orders to slip the paperwork in just under the court’s 3:30 P.M. filing deadline, with the hope that the court would close before the lawsuit could attract any media attention.

  As he sat on a bench biding his time, Monagas thought about all that had brought him to this point. Born in Puerto Rico, he had pursued a career in theater design before deciding to study law. As a thirty-three-year-old fourth-year associate, he had never imagined he would be involved in a case of this import, much less one so personal.

  That morning, in the San Francisco apartment he shared with his husband, Jason, Monagas had looked in on their eighteen-month-old daughter, Elisa, as she slept in her crib, blond curly hair damp and tousled. The two men had wed before Proposition 8 had passed and had been blessed to be able to quickly adopt. But they worried that Elisa would grow up in a world where their family was not universally accepted. If gays and lesbians were able to marry, Monagas thought, it would go a long way toward dispelling their concern.

  As the 3:30 P.M. deadline for filing complaints drew closer, he grew increasingly antsy. The clerk seemed puzzled by his presence in the empty room, asking him several times if he needed help. “No, no, just waiting on an edit,” he said, by way of an excuse. But when a few people sauntered into the room, threatening to form a line ahead of him just as the court was about to close, he leaped up and, scurrying around them, thrust the paperwork at the clerk.