Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  “This must be an important filing,” she said, bemused at his apparent agitation.

  “I don’t know—I haven’t even read it,” he quickly dissembled.

  The clerk entered the case into her computer system, which randomly assigns cases to judges with the aim of ensuring equal caseloads. As she began stamping the paperwork, Monagas noticed the initials VRW and, grabbing his BlackBerry, e-mailed the rest of the team.

  The case, he wrote, had been assigned to the chief judge of the U.S. district court, Vaughn R. Walker. The team had worried that it would go to someone whom critics could easily label a San Francisco liberal, which would diminish a victory at the trial level. But Judge Walker was a Republican appointee, first nominated to the bench by President Ronald Reagan.

  Walker’s nomination had been fiercely opposed by gay groups because of his representation of the U.S. Olympic Committee in a trademark suit that prevented a Bay Area group from calling its athletic competition the Gay Olympic Games. Walker, then in private practice, had managed to slap a lien on the home of the group’s founder, who was at the time dying of AIDS, sparking outrage in the community. The groups had held up his nomination for so long that George H. W. Bush had become president by the time he won confirmation.

  The Olympics case did not trouble Olson. Intellectual property was a complex area of the law, one that had nothing to do with where the judge might come down in a civil rights case. And on the bench, Walker had compiled a record as a bit of a maverick. While in some ways a law-and-order man, he had allowed reporters to watch all stages of the state’s lethal injection executions. His record suggested that he did not think voters should always have the final say: He had overturned a San Francisco voter-approved limit on ATM fees.

  He was tough and blunt, suggesting to one struggling lawyer in open court that acting lessons might help her performance, and in another case calling the city’s attorney, chief of police, and district attorney on the carpet for failing to do enough to stop drug dealing and panhandling around his courthouse. He also had a libertarian streak that Olson particularly liked, having publicly called for the legalization of drugs.

  “Very good draw—an independent thinker but widely respected,” Matt McGill, a thirty-five-year-old new partner at Gibson Dunn, wrote back.

  The team’s stealth strategy worked: Word of the high-profile lawsuit did not leak before the California Supreme Court issued its decision on May 26. As expected, the court ruled that voters had properly amended the constitution to prohibit same-sex marriage. While the court let stand the eighteen thousand same-sex marriages that had already occurred, the window was now officially slammed shut to others. Protesters took to the streets, and within the gay community there was a sense of anguish that the end of the line had been reached.

  But on the following day, there came a reed of hope.

  On May 27, standing in front of an array of American flags at the Biltmore Hotel in Los Angeles, Olson and Boies went public with their effort, announcing at a press conference that they had filed a federal lawsuit challenging the constitutionality of Proposition 8 on behalf of two same-sex couples. Flanking the lawyers were Chad and the freshly minted plaintiffs, Paul and Jeff and Kris and Sandy.

  The week before the press conference, Monagas and another Gibson Dunn lawyer had escorted both couples to their local courthouses to file for a license. As expected, they were denied, giving them standing to sue. “Unfortunately, gentlemen, at this time I can’t do that,” the clerk at the teller window in Beverly Hills told Paul and Jeff. “But should circumstances change, come back to us.”

  Both had seized on her words, looking at one another. That’s just what they were there to do: Change the circumstances. “We are going to plan your wedding in a couple of years—this is going to happen,” Olson promised them just before the start of the press conference.

  Now, introducing the two couples, Olson declared that California voters, in amending the state constitution, had discriminated against gay men and lesbians simply because they had “the temerity to wish to express their love and commitment to one another by getting married.”

  Boies, whom Olson had introduced to the plaintiffs just before the start of the press conference, had nearly missed the event altogether. Chad had gotten word from his office the day before that he would not be there but might be able to appear via satellite. Chad was furious. The whole point, he had argued, was for the two lawyers to stand side by side, the very picture of bipartisanship.

  Somehow Boies had managed to get himself to California, and now he played up the odd-couple story line that had, as predicted, packed the room with reporters and would land the press conference on the front page of the New York Times the following day. “Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution,” he said.

  But it was Olson whose raw emotion stole the show. “These are our neighbors, coworkers, teachers, friends, and family,” he thundered. “Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.”

  Watching the press conference from his computer at home in Brentwood, Rob Reiner turned to his wife. “I started crying,” he recalled. “We were saying, ‘Can you believe we’ve done this?’”

  That afternoon, the clerk in San Francisco federal court, as was her habit, dropped the pile of complaints that had been assigned to Judge Walker over the last week on his desk. As he leisurely leafed through them, the name Perry v. Schwarzenegger jumped out.

  The judge had not seen the press conference with Kris Perry and the other plaintiffs. Who was suing the governor of California? he wondered, plucking the case out of the pile.

  It didn’t take more that a few paragraphs for him to grasp the significance.

  “Oh shit,” he thought.

  The legal team’s initial quick scrub of Judge Walker’s record had, the lawyers believed, given them a pretty good handle on Walker’s judicial philosophy. But by now they knew it had overlooked a salient fact about his private life: The judge who was to preside over their case was himself gay.

  But that was not what was giving the judge pause. He had hoped to retire by the end of the year, after the resolution of a slew of complicated national security cases involving the government’s counterterrorism surveillance policies currently pending before him. Unless he could find a way to get rid of Perry v. Schwarzenegger, that plan was about to blow up. The only legitimate way he could duck the case was to tell the court he had a conflict of interest, and that, Judge Walker quickly determined, wasn’t warranted in this case.

  The sixty-five-year-old judge had long struggled with the question of when and how to come out. He had grown up in a rock-ribbed Republican town in rural Illinois, and graduated at the top of his class at Stanford Law School. He did not believe he could reach the pinnacle of his career if it were widely known that he was gay.

  “You think that you can’t be yourself and live the life you want to live,” he said.

  So, much like Chad, he had for years sublimated his sexuality to the rest of his life. He was handsome in a patrician way, with luminous green eyes, a dry wit, and a gentleman’s manners. Women liked him, and over the years he had some faux romances. He was not unhappy, but the pretending took a toll; not only was his own existence bound up in a lie, but he was stringing along decent women, whom he liked.

  “When you are not able to be yourself and have the kind of relationship you consider fulfilling,” he said, “there’s this element of dishonesty and deception.”

  It wasn’t until he was in his late thirties that he had his first relationship with a man. It had felt so different, so right, that he began considering coming out, to hell with the consequences. But then, in 1982, along came the Gay Olympics case. If he had sa
id he was gay at that point, he felt he would have been vouching for his client, something he believed good lawyers should not do.

  Soon after that came his nomination to the bench. Some of his friends told him that the FBI had asked them about his sexuality as part of his background check, but no one at the Reagan Justice Department ever confronted him directly. Given that there wasn’t a single “out” federal judge at the time, who knew how such a disclosure might complicate his nomination?

  And so he had stayed mum, even having one more faux romance with a woman. They had fun, rode horses together. But when she broke things off after he kept putting off the question of marriage, he knew that she would be his last girlfriend. By his own, somewhat rueful admission, “I was no gay rights pioneer.”

  Over the years, though, as he grew more comfortable on the bench, he began to live a little more openly. He stopped worrying about waking up to a newspaper article outing him. He could occasionally be found at the Lone Star Saloon, a gay bar. Then he fell in love. While he never made any big public announcement about his sexual orientation, he and his partner of many years, a physician, were often spotted together at social events and even court conferences.

  Judges are required to disqualify themselves in cases where they have a nonfinancial but “substantial” interest in the outcome, or in cases where their “impartiality might reasonably be questioned.” Walker did not think he met that test for several reasons.

  He would later tell friends that he had never even discussed marriage with his partner. And when the window briefly opened in California, he had not given the idea of marrying him any real consideration. Given DOMA, it made no financial or estate planning sense, and he was quite happy with things as they were.

  Besides, he figured, even if he did want to marry someday, the courts had held that a judge is not disqualified from hearing a case just because he or she shares a fundamental characteristic with a litigant and stands to benefit from the outcome in the same way as general members of the public. African American judges hear race discrimination cases all the time, while female judges hear cases charging gender bias, he thought. Why shouldn’t a gay man hear the challenge to Proposition 8?

  Arriving back at his office in Washington from the press conference, Olson found his in-box flooded with accusatory and at times hateful e-mail: “A disgraceful betrayal of the legal principles you purported to stand for,” read one message. “Homo,” read another.

  Colleagues were kinder, but many remained bewildered. Up until this point, the highest-profile supporter of gay marriage was former vice president Dick Cheney, whose daughter was a lesbian, and even he said it should be left up to the states. Was someone in Olson’s family gay? The answer to that question—no—led some to whisper disparagingly that it must be the influence of Olson’s new wife, Lady, a beautiful blond Kentucky-born tax lawyer and self-confessed liberal whom he had married in 2006.

  Longtime law firm partner Doug Cox, a fellow conservative, was dismayed that he had been kept in the dark about the plans to place the firm in the middle of a battle he did not support. Former judge Robert Bork, a dear friend of Olson’s who had written that “radical” court-ordered gay marriages constitute a “judicial sin,” couldn’t bear to talk to him about the case.

  “I don’t want to get into an argument,” he said. “But I’d like to know why.”

  At the annual Federalist Society lunch, Olson kept his tradition of delivering a conservative red-meat roundup of the just-concluded Supreme Court term. But there was a palpable sense of discomfort in the room about the just-filed Proposition 8 case. Olson may have wanted to keep one foot planted in the conservative circles that had long been his ideological home, but it was clear as he made his rounds that his decision to step so far outside its doctrinal orthodoxy was going to come at some personal and professional cost.

  When it comes to interpreting the Constitution, there are two distinct schools of thought. One school sees it as a living, breathing document, in which rights that are not explicitly enumerated may be found. The Federalist Society is an incubator for the other school. The substantive due process right to privacy that led the Court to strike down first laws prohibiting contraception and abortion and later the antisodomy law at issue in the Lawrence case that Olson was relying upon? Made up out of whole cloth. Judges should stick to the Constitution’s actual text, and to what the framers intended.

  To many adherents of this school, it bordered on the absurd to believe that the authors of the Fourteenth Amendment to the Constitution, which added the equal protection clause and was passed in the wake of the Civil War in order to confer citizenship on freed slaves, would someday intend for it to be used to force states to marry same-sex couples. Justices had a hard enough time using it to invalidate race-based school segregation in the Brown v. Board of Education decision, given that it was ratified by the same Congress that had segregated schools in the District of Columbia; Justice Robert H. Jackson, in a draft opinion, summed up that Court’s struggle when he wrote that however abhorrent he found segregation, “layman as well as lawyer must query how it is that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved.”

  What was so perplexing and, for many conservative lawyers at the Federalist Society luncheon, controversial about Olson’s involvement in the same-sex marriage fight was that, as conservative law professor Orin Kerr charged on his blog, Olson was now making the “same kinds of constitutional arguments that he has specialized in ridiculing for so long,” relying on case law and legal theories he had critiqued in that very forum.

  “Those who have watched Olson’s annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites,” Kerr wrote. “Olson hasn’t just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal.”

  But not a single person at the lunch even mentioned the Proposition 8 case to him, save for an oblique ribbing by David Bossie. In the bifurcated world he now inhabited, Olson was representing Bossie, the president of a conservative advocacy group called Citizens United, in a case involving a scathing documentary about Hillary Rodham Clinton that challenged campaign finance limits put in place by Congress. After pecking Lady on the cheek, Bossie looked over at her husband and drily said, “I’m not going to kiss you, even though apparently you wouldn’t mind.”

  Seated at Olson’s table to his right was Robert McConnell, one of his oldest friends. The two men had worked together in the Reagan Justice Department, and shortly before filing the lawsuit Olson had taken McConnell aside at a dinner party to give him a heads-up and solicit his views. McConnell, a practicing Catholic, told Olson that as a religious matter he believed marriage ought to be reserved for two people who can procreate.

  Olson, who was not a regular churchgoer, replied that while he respected McConnell’s conviction, he saw it as a civil rights issue. He then began to elaborate on his view that religious beliefs were insufficient legal justification for the government to refuse to recognize same-sex marriage, but soon paused. “You don’t agree with me, do you?” Olson asked. The conversation was never resumed.

  The lawsuit was not going over any better in the gay rights community. All the leading groups issued a joint press release calling the lawsuit ill timed and ill advised. Conspiracy theories abounded that Olson had taken the case to sabotage it. Nan Hunter, founder of the ACLU’s LGBT Project, told reporters that a very careful, collaborative strategy had been tossed out the window by “a small number of people who are wealthy enough to pay for a major litigation effort.”

  Chad and Bruce Cohen redoubled their efforts to bring the groups around. Olson did his part too, with limited success. He phoned in from a bicycling trip
in Provence to listen to the concerns of leaders like Kate Kendall, the executive director of the National Center for Lesbian Rights. Olson told her that he hadn’t gotten as far as he had by taking on losing causes, and he added an emotional personal note: “This may well be the most important fight I have ever been a part of in my life.”

  Kendall was convinced of his commitment, even though she remained concerned about the timing. “By the power vested in me, I am anointing you an honorary lesbian,” she joked at the end of the conversation.

  “It is a badge I will wear with pride and honor,” he replied.

  SIX

  “PROVE IT”

  David Boies was sitting at the bar of the Millennium Hilton hotel in New York City, having just finished preparing for the next day’s testimony in a complicated trial involving the insurance giant AIG, when an aide handed him Judge Walker’s first order in the case. It was June 30, 2009, a little over a month after the lawsuit had been filed.

  Olson and Boies had asked the court to issue a preliminary injunction prohibiting the state from enforcing Proposition 8, which would have the effect of allowing same-sex couples to begin marrying again while the court considered the legal issues at hand.

  Injunctive relief of the type the plaintiffs were requesting is given in cases where it can be established that their constitutional claim has merit and that continued enforcement of the law under challenge would cause real harm. Judge Walker tabled the request, on the grounds that he did not want to inject more confusion into California’s already confusing marital landscape by allowing weddings to resume before the legal questions were definitively resolved.