by Becker, Jo
Whichever way he ruled, his word would likely not be the final one. The losing party would appeal his decision to the Ninth Circuit Court of Appeals, charged with reviewing the judgments of federal district and bankruptcy courts in nine states and two U.S. territories. Depending on that outcome, it seemed likely that the Supreme Court would be the ultimate arbiter, assuming it decided to hear the case. If Walker or some subsequent court were to rule against the plaintiffs and uphold Proposition 8, marriages performed while the case made its way through the federal court system could be rendered invalid. California had already been down that road before, when San Francisco mayor Gavin Newsom had unilaterally decided to hand out licenses to same-sex couples, and the state did not need a repeat.
But in a passage Boies found quite heartening, Judge Walker said that the legal filings in the case so far “may well suffice to establish a serious question” as to the constitutionality of Proposition 8. The judge particularly singled out the fact that the state had refused to defend the initiative. It was not an outcome that the team had left entirely to chance. The two named defendants in the lawsuit were Republican governor Schwarzenegger and Democratic attorney general Jerry Brown, the state officials charged with enforcing Prop 8.
Kristina had back-channeled a request to the governor using connections she had made through her client, California’s first lady, Maria Shriver. If he couldn’t support the lawsuit, would he at least say nothing? “Just play dead,” she had begged. But the governor did her one better, suggesting in a court filing declining to defend it that Proposition 8 raised serious constitutional questions. Brown for his part unambiguously declared that it was unconstitutional.
Over his years in office, Schwarzenegger’s position on same-sex marriage had evolved. Following his veto of a bill that would have legislatively legalized the practice, he had begun talking to gay staff members, friends, and, most important, his wife. Unbeknownst to the public, he had presided over the marriage of two of his closest gay staffers, and had offered to marry a third, Daniel Zingale, a senior adviser to the governor and chief of staff to the first lady, during the window in which it was legal. Zingale had kept the marriages confidential, but confided to Chad and Kristina that the governor was better on the issue than they knew.
Paging through the judge’s order over a tall screwdriver—during trials he limited himself to a maximum three and kept track by placing the straws in his shirt pocket—Boies picked up his cell and called Olson, who was in California for a July 2 hearing in the case.
In advance of that hearing, supporters of Proposition 8 had filed briefs arguing that allowing gays and lesbians to marry could destabilize the institution of marriage, and that a married mother and father provided the optimal child-rearing environment. Olson, for his part, had asserted that there was no reason to believe that allowing gays and lesbians to marry would harm traditional marriage. Prop 8, he argued, had been motivated by nothing more than animus—unconstitutional prejudice—toward gay people.
But Walker decided that neither side had provided sufficient evidence for their claims. “Prove it,” he would later recall thinking. In his order, the judge signaled his intention to hold a full-blown trial, and he listed questions that the parties should be prepared to answer.
The team had always known that this was a possibility, and Walker’s order was not unprecedented. The landmark Romer case had begun with a trial. Citing the evidence that had been presented, the district court rejected arguments that the Colorado initiative was justified because including gays and lesbians in antidiscrimination laws could lead married individuals to “choose” to become homosexual.
But up to now, the state courts that had considered same-sex marriage had come to their conclusions based largely on legal arguments alone, so the order came as something of a surprise. If Walker held to his plan, the public would hear evidence and actual testimony on issues such as the intent and effect of Proposition 8, the history of discrimination against gays and lesbians, the history and purpose of marriage, the science of sexuality, and whether excluding gays and lesbians from marriage promotes the well-being of children.
“I don’t know what your view is,” Boies told Olson as he signaled a hotel waiter for another round, “but I rather like this opinion.”
Terry Stewart was worried. As San Francisco’s chief deputy city attorney, she had been one of the lead lawyers in the California Supreme Court case that briefly legalized same-sex marriage.
She would have killed for the type of trial that Walker was proposing. The judge was offering Olson a golden opportunity to put prejudice on trial, by calling expert witnesses and cross-examining opponents of same-sex marriage. Even more important, he was giving Olson a chance to bulletproof his case before it got to the Supreme Court. Appeals courts, which review the decisions of lower courts, do not hear from witnesses or relitigate evidence. They are supposed to defer to a trial judge’s factual findings and limit their review to whether the law was correctly applied, meaning that later courts would be forced to contend with whatever Judge Walker decided the evidence showed when it came to issues like whether sexuality is changeable or what motivated Proposition 8.
But Olson, unlike Boies, was not initially keen on the idea of a trial. Olson wanted to reach the nation’s high court as quickly as possible, and a trial would slow them down. “Every day that Proposition 8 is enforced perpetuates a tragic injustice on tens of thousands of Californians, including, specifically, the plaintiffs who are here, today, before you,” he protested at the July 2 hearing.
In Olson’s view, the case could be decided on an expedited basis simply by looking to the Constitution and applying Supreme Court precedent. Walker, however, had other ideas.
There were questions not just of law, but of fact that needed to be resolved, the judge said.
“This is a trial court, this is not the Supreme Court of the United States where we deal with these boxcar philosophical issues,” the judge said. “We deal with facts; we deal with evidence; we deal with the testimony of witnesses.”
“I’m reasonably sure, given the issues involved and given the personnel that are in the courtroom, that this case is only touching down in this court, that it will have a life after this court, and what happens here, in many ways, is only a prelude to what is going to happen later,” Walker continued. “Our job, in this case, at this point, is to make a record.”
Olson then made a suggestion for streamlining the trial proceedings, one that made Stewart particularly uneasy.
When the governor and the state had refused to defend Proposition 8, Judge Walker had allowed the proponents of Proposition 8, who had gathered the signatures to put the initiative on the ballot on behalf of a campaign called “ProtectMarriage.com,” to do so as intervenors in the case. Their lawyer was Chuck Cooper. He was an old friend of Olson’s from back in their days in the Reagan Justice Department and had succeeded him as head of the Office of Legal Counsel.
Olson had pulled Cooper aside just before the start of the hearing to privately suggest that they jointly oppose Walker’s trial plan. “We don’t want to have some Scopes monkey trial here, do we?” Cooper recalled Olson saying, a reference to the famous 1925 case in which the then controversial theory of evolution was debated by two famed lawyers of the day. When it became clear the judge would not be deterred, Olson had suggested in more diplomatic language that perhaps he and Cooper could stipulate to some of the facts at issue in order to move things along. “That might help to narrow the issues upon which there then might have to be expert testimony,” Olson told the judge.
Stewart was appalled by Olson’s suggestion. Cooper had defended Hawaii’s right to ban same-sex marriage in state courts there. And he had written a brief in the Romer case defending the constitutionality of the Colorado initiative that prohibited municipalities from including gays and lesbians in their antidiscrimination laws. Any offer of cooperation by Cooper, Stewart thought, could
not possibly be good for the case.
Gibson Dunn, Olson’s firm, had already asked the city of San Francisco to file an amicus brief, a legal argument filed by a party not directly involved but with an interest in a case. Stewart had readily agreed. Whatever the establishment gay rights groups thought about Olson’s lawsuit, what was done was done. It was imperative that he succeeded.
Now, worried about the direction the case was taking, she wanted to advocate for a larger role. Following the hearing where Olson and Cooper had suggested limiting the facts in dispute, she went to see her boss, City Attorney Dennis Herrera. He looked up as she came in, a five-foot-three whirlwind in a dark pantsuit, with short white-blond hair and preppy glasses. Stewart tended to convey urgency in breathlessly fast sentences, one tumbling over the next. Forget the amicus brief, she said. We need to file a motion now, asking that the city of San Francisco be made a party to the case. That would give her and Herrera a far greater say in charting the course of the trial.
“They need our help,” she said, “even if they don’t know it.”
Herrera, a jovial politician well liked by both the city’s gay community and its more conservative Catholic population, agreed to reach out to Chad, whom he knew well. He had been the one who hired Chad and Kristina to help fight Proposition 8 in the waning days of the campaign, paying them out of his own political coffers because he felt that the people in charge of the official “No on 8” campaign were running it into the ground. The city, he told Chad when he reached him, wanted to intervene in the case, and allowing that to happen could help Chad with a problem of his own.
After publicly questioning the wisdom of AFER’s legal strategy, the American Civil Liberties Union, Lambda Legal, and the National Center for Lesbian Rights now wanted to be made parties to the case as well. “We think it will be very helpful to Judge Walker and the ultimate resolution of the questions in the case for the litigation to have the benefit of the community in all of its diversity,” Lambda’s Jenny Pizer, explaining the motion they had filed with the court, told reporters.
Kristina had never seen Chad so furious. After everything that Lambda Legal and the other groups had done to trash their case, now they wanted in? When Chad got angry, his southern accent became more pronounced, and he was in a full-on drawl as he shouted from his office, “We’re screwed.”
It was also the last thing Olson wanted. The team was going to have a hard enough time winning. A united front was needed, not infighting and second guessing. But what could they do? Chad had already shifted gears to try to deal with this unpleasant new reality when Kristina slowed him down. These groups already hate us, she reminded him. What do we have to lose by going to war to try to shut their motion down?
She was right, Chad thought. Together, they crafted a tough response.
“You have unrelentingly and unequivocally acted to undermine this case, even before it was filed,” Chad charged in a letter to the three groups he released to the press. “In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening.”
But it was anyone’s guess what Walker might do. Judges often like to hear from a number of parties. Why not back San Francisco’s bid, Herrera asked Chad, as a way to look reasonable? Stewart, his deputy, had the expertise. She already had a list of experts in the fields of sociology, sexuality, and history whose testimony could help convince the court that gays and lesbians suffered real harm from being deprived of the ability to marry. Plus, she was a lesbian who enjoyed a good working relationship with the established gay rights legal community; having her join a team that at the moment consisted of two straight men might ease the groups’ concerns.
“I can help give you cover,” Herrera recalled saying. “You can say that we oppose all interveners, but if you are going to let someone in, let San Francisco in.”
The strategy worked. On August 19, Judge Walker granted the city’s motion to join the case but denied everyone else’s. Stewart immediately began funneling the team the names of expert witnesses whom she had cited in her California Supreme Court case, as well as experts used in the other state court cases challenging marriage bans. The Gibson Dunn team seemed appreciative of the help. But Stewart found the unflagging confidence of some of her new cohorts off-putting.
During the California Supreme Court proceedings, she had devoted every spare moment to the case. It was as though she carried in her briefcase the pain of the entire gay community. She was so worried about letting people down that it wasn’t until after she had won that she even considered what it might mean for her personally.
A reporter from the San Jose Mercury News had called for comment, asking whether she would now marry her longtime partner, Carole Scagnetti. She had burst into tears. “I realized I had been holding it all at bay because I didn’t want to dare to hope for the unattainable.”
Watching that victory be snatched back by the voters had sapped some of her belief in the system. On election night, she and Carole had spoken to their daughter, Tasha, who was attending college at Mount Holyoke. As an African American, Tasha had been thrilled by Obama’s historic election. They had taken Tasha in when she was in eighth grade, becoming her legal guardians the following year, and they were proud of the poised young woman she had become. They tried to share in her celebratory mood, but it was difficult. Black voters had flocked to the polls in record numbers to elect the first black president, but a majority had also supported Proposition 8. Both women cried before drifting off to sleep that night.
In a contemplative moment shortly after the case was filed, Stewart pulled aside one of the Gibson Dunn lawyers assigned to it, Chris Dusseault.
“What if we lose?” she recalled asking.
“That’s why they hire us, to take the tough cases,” he replied.
Stewart held her tongue, because Dusseault seemed nice enough, and as a straight white guy, she figured he had never faced any real prejudice.
“But I thought, ‘This isn’t some big antitrust case, asshole. These are real people.’”
Cooper had begged Judge Walker to throw out Olson’s lawsuit, arguing that the Supreme Court had already had the final say on same-sex marriage when in 1972 it declined to review a lower court’s finding that Minnesota could rightfully deny gay couples marriage licenses in a case called Baker v. Nelson. Instead, Walker set a fast-track schedule that had Cooper scrambling to find experts willing to testify at a three-week trial set to begin on January 11, 2010, only months away.
A courtly man with blue eyes, elfin ears, and the smooth flushed cheeks of a child just in from the cold, Cooper spoke in what Washington Post columnist Mary McGrory once described as a “kind of Victorian copybook prose, ever seeking the elegant variation for the blunt.” Over breakfast in Dupont Circle one day in September, he wondered aloud how he could possibly juggle a major constitutional case like Perry v. Schwarzenegger with all his other obligations.
Cooper had a twelve-member firm with a single office in Washington, D.C. Between Olson’s and Boies’s firms there were nearly three times that number working on the case, in offices in Washington, New York, Los Angeles, and San Francisco. And besides the Perry case, Cooper was suing Duke University and the city of Durham on behalf of thirty-eight university lacrosse players who had been falsely accused of rape, representing former attorney general John Ashcroft against torture allegations connected to Bush administration counterterror interrogation techniques, Boeing in a multibillion-dollar dispute over the awarding of a government contract, and defending a Michigan law barring race-conscious admissions policies at state universities.
“We’ve been on a Bataan death march,” he complained, running a hand through white hair that looks Brylcreemed into its precise 1930s-style part. “It’s unbelievable to be trying this case in less than five months—I’ve never seen anything like it. It’s a grueling schedule for both sides real
ly, but I think for my side in particular.”
In Cooper’s mind, same-sex marriage simply was not a federal issue, but rather one that should be left to the people and their representatives. That summer, legislatures in New Hampshire, Maine, and Vermont had passed same-sex marriage, bringing the total number of states allowing gays and lesbians to marry to six.
“If the state of Vermont’s decision to legalize gay marriage were challenged, I’d defend it too,” he said. “I don’t understand why extremes on both sides insist on seeing this issue in terms of good and evil.”
But even some members of his own family did not agree with his position in the Proposition 8 case—“With six kids, there’s a variety of opinions on this issue,” he said—and he felt he was getting killed in the media.
Gay marriage opponents weren’t making his job any easier. Cooper’s strategy hinged on convincing one person—Justice Kennedy—that the bulk of the people who had voted for Prop 8 bore no animus toward gay people. But a group called the Campaign for California Families had attempted to intervene in the case, making arguments that Justice Kennedy could well find offensive. The group claimed that Cooper was conceding too much by acknowledging, for instance, that gays and lesbians could form “lasting, committed relationships” and that “same-sex sexual orientation doesn’t result in any impairment of judgment.”
Judge Walker, at Cooper’s request, had denied the group’s motion to intervene. He then called the remaining parties—Cooper, Olson, and the city of San Francisco—together for a case management hearing. It was scheduled to take place in four weeks, on October 14 in San Francisco.
In advance of the hearing, Cooper had managed to file a voluminous 117-page brief. He reckoned he and Olson would remain friends even after the lawsuit had reached its conclusion. But he charged that Olson was calling for a “radical redefinition of the ancient institution of marriage” completely unconnected to rights spelled out in the Constitution. The due process clause, he said, “specially protects those fundamental rights and liberties which are objectively deeply rooted in the nation’s history and tradition.” That could hardly be said of same-sex marriage, he argued.
