by Becker, Jo
“We have courts to declare enactments like Proposition 8 that take our citizens, our worthy, loving upstanding citizens who are being treated differently and being hurt every single day, we have courts to declare those measures unconstitutional. And that is why we are here today.”
“Very well,” the judge said.
“Good morning again, Chief Judge Walker, and may it please the court,” Cooper began, when it was his turn to give an opening statement. “On November 4, 2008, fourteen million Californians went to the polls to cast their ballots on an issue of overriding social and cultural importance: whether the institution of marriage should be redefined to include couples of the same sex. Over 52 percent of the—those—Californians voted to restore and preserve the traditional definition of marriage as a union of a man and a woman. A definition that has prevailed in virtually every society in recorded history.”
Cooper’s theory of the case was pretty straightforward. No court in the country had held that laws targeting gays and lesbians should be subject to heightened scrutiny. Assuming that he could keep the court from reaching that conclusion in this case, it would be up to Olson to prove that Proposition 8 served no conceivable state purpose and had instead been motivated by animus.
Californians, Cooper argued, had been very generous in extending rights and benefits to gay and lesbian couples, enacting antidiscrimination protections and recognizing same-sex relationships through domestic partnerships.
“Gays and lesbians have secured these and many other legislative victories by mobilizing a strong and growing coalition of supporters,” he said, ticking off a number of allies. When he got to “Hollywood,” Michele Reiner compressed her lips and looked to the ceiling. One of the great ironies about Hollywood is that with studio executives afraid to cast openly gay actors in romantic leads, it was still one of the most closeted places in America.
Those victories, Cooper argued, demonstrated not only that gays and lesbians wielded substantial political power and therefore should not be considered a suspect class, but also that Californians bore no ill will toward gays and lesbians, but simply had a “special regard for this venerable institution.”
“There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage,” he said, quoting a prominent rabbi before turning, as Olson had, to Obama.
Cooper intended to turn the president into a star, uncalled witness in his case, a man who exemplified the notion that thoughtful people of goodwill can differ on the subject of same-sex marriage without being bigots.
Obama had carved out a tortured position on same-sex marriage. During the presidential campaign, he promised to support the repeal of the Clinton-era Defense of Marriage Act, because he said the definition of marriage should be left to the states. But he also said he personally did not support allowing gays and lesbians to wed, and that arrangements like civil unions that offered all the benefits of marriage were the best way to “secure equal treatment” for gays and lesbians.
Why? Cooper quoted the president’s own words: “Marriage has religious and social connotations and I consider marriage to be between a man and a woman.”
Walker, who had allowed Cooper to make his case without interruption up to this point, finally felt compelled to jump in. “Mr. Olson made the point if the president’s parents had been in Virginia at the time of his birth, their marriage would have been unlawful. That indicates that there is quite a change in the understanding of people’s entitlement to enter into the institution of marriage.”
If the specter of Roe v. Wade hung over Olson as he tried to convince the court that the time to act was now, given Ginsburg’s statements that the decision had moved “too fast,” the historic Loving v. Virginia case that had overturned interracial marriage bans was one of Cooper’s biggest hurdles.
In finding that the Virginia statute both violated the Constitution’s promise of equal protection under law and deprived the Lovings of a fundamental freedom without due process of law, the Court had declared that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
Shortly before her death in 2008, Mildred Loving, whose marriage to a white man sparked that historic litigation, had issued a statement endorsing same-sex marriage. “My generation was bitterly divided over something that should have been so clear and right,” she wrote. “I support the freedom to marry for all. That’s what Loving, and loving, are all about.”
“Loving is by far [Olson’s] best case,” Cooper later said.
Cooper’s only recourse was to circle back to his main argument: that marriage, as he put it, is “fundamentally a pro-child social institution anchored in socially-approved sexual intercourse between a man and a woman,” a view that caused not a few people in the courtroom to giggle.
“The racial restriction in Loving was at war with the central purpose of marriage,” Cooper continued. “You had a situation where two individuals whose sexual relations would [naturally] lead to procreation, and yet the state forbade those individuals from forming a marital union.”
“Is that the only purpose of marriage?” Walker asked. “Where do the other values associated with marriage come in, companionship, support?”
“The question is, Your Honor, is this institution designed for these pro-child reasons, or is it to produce companionship and personal fulfillment and expression of love? Are those purposes themselves important enough to run the risks to the accomplishment of the pro-child purposes?”
“What are those risks?” interjected Walker, back in his what-is-the-evidence mode.
“The risks are, Your Honor, that the nature of the institution will be altered, that it will be deinstitutionalized,” Cooper responded. “Now, the plaintiffs dispute. They dispute the likelihood that these harms will result from same-sex marriage. And our point, Your Honor, is that they cannot prove that they will not flow from legalizing same-sex marriage.”
“Excuse me,” Walker interjected. “Is there any evidence from the countries and states that have permitted same-sex couples to marry that marriage has been deinstitutionalized, or has led to lower marriage rates or higher rates of divorce or greater incidents of nonmarital cohabitation, these other matters you’ve described?”
Cooper said there was and he believed the evidence would show that it had.
“Which witness will speak to this?” Walker asked.
“The plaintiffs actually will have witnesses who speak to this,” Cooper answered. Olson looked puzzled; the witnesses he had lined up had made no such concessions.
“But my point also, Your Honor,” Cooper hurried along, “is that with respect even to the foreign countries, where there is a greater body of experience, or at least a longer period of experience, confident and reliable judgments simply cannot be made.”
Walker turned to Cooper’s assertion that allowing same-sex couples to marry would increase the likelihood that bisexuals would be allowed to enter into polygamous relationships. “What’s the evidence?”
Cooper dodged, saying such a conclusion flowed from logic.
“This is ridiculous,” Michele Reiner whispered to her husband. Cooper, meanwhile, was winding up his argument.
“The reality is, Your Honor, you will hear nothing but predictions in this trial about what this—about what the long-term effects of adopting same-sex marriage will be on the institution of marriage itself, and on the social purposes that it serves.”
Attitudes about same-sex marriage might be changing, Cooper said, but that “is not a reason that the constitution has somehow changed to ordain the results” that Olson was seeking. “It’s a reason, and he has spoken eloquently to many reasons, why the people of California, perhaps the people of other states in this country, should consider his arguments the next time the issue is before them in the political proce
ss.”
“Thank you, Mr. Cooper,” Walker said. “I believe those are the opening statements and we will take a break until ten minutes after the hour.”
“News of the day!” Matt McGill exclaimed, wandering back from his seat at the counsel table with Olson to where the Reiners and the plaintiffs were conferring about the morning’s events.
Earlier that morning, while Olson had been digesting the news from the Supreme Court, Cooper had filed a remarkable two-page document there in the district court. Time-stamped at 8:30 A.M., it effectively gutted Cooper’s case.
“They dropped four of their witnesses!” McGill explained, grinning broadly.
It had been difficult for Cooper to find experts willing to testify on his side of the case; at least ten that he approached had turned him down. Though he believed that the burden should be on the plaintiffs in this case, he knew that it would shift to him if he could not knock down both Olson’s argument that gays and lesbians ought to be considered a suspect class and that the fundamental right to marry was the right to marry a person of one’s choice.
And assuming he succeeded on those fronts, he still had to get past the hurdle the Supreme Court had erected in the Romer decision. In that case, the majority held that if a law serves no rational purpose, it can be inferred that it was passed out of prejudice. Cooper needed to advance some nonbigoted rationale for Prop 8, and now he was down to just two experts. He did not panic; as he later put it, “We always thought the most important things would come out of the mouths of the plaintiffs’ witnesses.” Still, putting on an affirmative case using hostile experts called by your opponent is difficult in the best of circumstances.
In the coming days, Cooper and his team would tell the court that the witnesses had backed out at the last minute because of the plan to broadcast the trial, a stance he maintained years later when he said they were worried that the ban handed down that very morning was only temporary. “The media focus on this case, if fed by videotape of the proceedings—it was fraught with risk for the side the media did not favor,” he said. “That was very much in the minds of these witnesses.”
But there were other, strategic reasons for Cooper to pull the four experts. Prior to the start of a trial, lawyers are given the opportunity to interview, or in legal lingo, “depose,” the other side’s witnesses. All four had made damaging admissions during those depositions. An Oxford University philosophy professor who was to have testified that people have the moral power to overcome being gay, for instance, was forced to acknowledge that he had never done a study of human sexuality or interviewed gay or lesbian subjects before reaching that conclusion. And at least two of the withdrawn witnesses would later say that their decision not to testify stemmed at least in part from not wanting to go another round with the plaintiffs’ attorneys in open court.
Loren Marks, a professor at Louisiana State University, had been slated to testify that the ideal family structure for children is one in which they are raised by their biological parents—a possible rationale for Prop 8, since that is not possible for gay and lesbian parents. But McGill had forced him to admit that he did not realize that the studies he relied upon to conclude that children do best when raised by a mother and father defined “biological” parents in a way that included adoptive parents. Nor had he studied how the children of gays and lesbians fared. The publicity that could result from cameras was of some concern, but the deposition had—he remembered this later very clearly—at times made him seem “foolish and naïve.”
“I wouldn’t have wished fifteen minutes of it on my worst enemy.”
And Boies, in his depositions of two religious studies scholars from McGill University in Canada, had demonstrated just what his wife had meant when she told Olson that putting up with his occasionally eccentric ways would be worth it.
“It was like watching someone pull the foundation out from underneath their house,” Terry Stewart, who accompanied him to the depositions, recalled. “It’s hard to describe what happened.”
Katherine Young was to have testified that the historical purpose of marriage was to bind men and women together, for the good of society, in order to foster an ideal climate to raise children. But Boies had forced her to admit that the primary purpose of marriage today is to express love and commitment. And though Cooper had said in his opening statement that marriage had always and “across cultures” been defined as a union between a man and a woman, Young had acknowledged that at varying times same-sex marriage rituals had been practiced in parts of India, China, and West Africa, as well as among certain North American Indian tribes. Even the Roman emperors were sometimes known to marry other men, she had added.
Her colleague Paul Nathanson had expected to be questioned about the expert report he had prepared on the varying positions that religious denominations took in the Prop 8 fight. Instead he found himself defending views he had expressed in books he had coauthored with Young on the role fathers play in families.
As a gay man who opposed gay marriage, he held complicated views. He believed that the modern concept of marriage as an expression of love, as opposed to duty, gave parents permission to split when their emotional bond ended. Allowing same-sex couples to wed, he feared, would only lend further currency to that adult-centric view. But Boies’s deposition left little room for nuance.
“He spent all of the entire day asking me had I ever heard of the American Psychological Society, all these hundreds of academic societies all of which are in the social studies field,” Nathanson recounted. “I am not in the social sciences, but in each case he asked, ‘Have you read this or that?’ I appeared like an idiot.”
Forced to acknowledge that many prominent national organizations, including the American Academy of Pediatrics, disagreed with his view that allowing same-sex couples to marry could hurt children, by the end Nathanson was agreeing with Boies that allowing gays and lesbians to marry would increase the stability of their relationships and enhance their ability to be good parents.
It was, Nathanson would later say, an “extremely negative experience,” and both he and Young decided shortly thereafter not to testify. Cameras, he said, had little to do with his decision.
Explaining the import of the move to the Reiners and the plaintiffs, McGill had no way of knowing what was in the minds of Cooper’s witnesses. What he knew was that both the legal and media team would have a field day with this information. And it was a buoying piece of news to deliver to the plaintiffs right before they had to testify.
Straightening Jeff’s tie, Paul asked if he was ready.
Listening to Cooper’s opening argument, Jeff said, “emboldens me more to want to respond.”
“Kill ’em,” Paul said. “I mean in a good way. Kill ’em with kindness. Just tell the truth, because the truth negates all these points.”
TEN
“A HIGHER ARC”
Mr. Boies, your first witness.”
“Thank you, Your Honor. We call Jeffrey Zarrillo.”
Boies wore his usual off-the-rack suit and sneakers, but for this case he had decided that an additional sartorial statement was appropriate: Prominently affixed to his lapel was an American flag pin. Jeff kept his eyes on the lawyer as he took the stand and began telling the court about growing up in Brick, New Jersey, and the fear that had gripped him once he realized he was gay.
He recalled watching an Afterschool Special about a child who was thrown out of his home after coming out to his parents. He had badly wanted to play football in high school, but had been afraid to be alone in a locker room with other boys for fear that they would somehow know what he was. He was twenty-five years old by the time he confided his secret to friends, and almost thirty before he told his parents.
“Coming out is a very personal and internal process,” Jeff said, then choked up. “Excuse me.”
Walker, who had jotted notes during the opening statements,
was now watching intently.
“Today you are in a committed relationship with another gay man, correct?” Boies asked.
“Yes, sir.”
“Tell me a little bit about that man.”
“He’s the love of my life. I love him probably more than I love myself,” Jeff said, the words spilling out, unrehearsed and raw. “I would do anything for him. I would put his needs ahead of my own. I would be with him in sickness and in health, for richer, for poorer, death do us part, just like vows. I would do anything for him. And I want nothing more than to marry him.”
Boies was moving quickly now, hoping to get Jeff off the stand well before lunch so Cooper would have no time to prepare for cross-examination. He needed to knock down the idea that domestic partnerships represented the generous compromise Cooper had painted them out to be in his opening, and one way to do that was to ask Jeff why he and Paul had decided against registering.
“It’s giving me part of the pie, but not the whole thing,” Jeff explained. “We would be saying that we are satisfied with domestic partnership as a way to live our lives, but it doesn’t give due respect to the relationship we have had for almost nine years. Only marriage could do that.”
“Do you believe that if you were married, that would affect the way other people who don’t know you deal with you?” Boies asked.
“Sure.”
“Why?”
“It says to them, these individuals are serious; these individuals are committed to one another; they have taken that step to be involved in a relationship that one hopes lasts the rest of their life.”
“Now, assume that the state of California continues to tell you that you can’t get married to someone of the same sex. Might that lead you to desire to get married and marry somebody of the opposite sex?”
