by Becker, Jo
“No,” Jeff answered.
“Do you think if somehow you were able to be forced into a marriage with somebody of the opposite sex, that would lead to a stable, loving relationship?”
“Again, no.”
“Your Honor, I have no further questions.”
Walker turned to Cooper and the team defending Prop 8.
“No questions, Your Honor.”
Walker could hear the murmuring in the audience, and even he seemed surprised. “Cross-examination?”
“No questions.”
“Raise your right hand,” the clerk instructed Paul.
There had been no time to talk about the way Paul had felt listening to Jeff’s testimony, only to lightly kiss him on the cheek as he passed him on the way to the witness stand.
Where Boies had sought to elicit from Jeff a heartfelt testament to the importance of marriage, with Paul he focused more on the next prong of the argument; that Prop 8, in denying gays and lesbians the ability to marry, caused them tangible harm.
“What are your views about having children?” Boies asked.
“I would love to have a family.”
“Why haven’t you so far?”
“I think the time line for us has always been marriage first, before family,” Paul answered. “For many reasons. But for us, marriage is so important because it solidifies the relationship.”
Boies moved on to his next point. “Have you experienced discrimination as a result of being gay?” he asked.
Paul hesitated. He might have talked about how his own brother had told him that his decision to become a plaintiff in this very case would be seen by his father’s side of the family—conservative Catholic immigrants from Jordan—as bringing shame to the Katami name, or about why only his sister was attending the trial. But that cut too deep, was too private.
So instead he talked about having rocks and eggs thrown at him the first time he went to a gay bar in college, and how later, during the Prop 8 campaign, he pulled up beside a woman with a YES ON 8 bumper sticker on her car. Her window was open. He looked at her, and she shot him a “very distinctive, ‘What?’ look back,” he testified.
“And I said, ‘I just disagree with your bumper sticker.’”
“She said, ‘Well, marriage is not for you people, anyway.’”
“I couldn’t even respond,” he continued, crying now. “It rocks you to the core.”
“What was the image on the bumper sticker?” Boies asked.
It was not an idle question. The team had collected reams of evidence that it wanted to introduce at trial, but the rules required that each exhibit be authenticated and introduced through a witness, after a foundation had been laid for relevance. Boies wanted to use Paul to introduce Prop 8 campaign material as a way to counter Cooper’s claims that homophobia was not the driving force behind Prop 8.
The bumper sticker featured two stick-figure children holding hands with their parents, a visual representation of one of the campaign’s main slogans, that voters should pass Prop 8 to “Protect Our Children.” “It’s so damning, it’s so angering, because I love kids,” Paul said.
Boies then moved to play a number of campaign ads for the court. In one, threatening music played over the image of a freight train barreling down the tracks. The ad featured the ProtectMarriage.com campaign’s executive director, Ron Prentice, warning that “if California loses on the subject of marriage, then this goes nationwide.” Others talked of the “homosexual agenda,” “Christians walking in fear,” and how “the devil wants to blur the lines between right and wrong when it comes to family structure.” The video ended with the tag line, “Stand up for righteousness. Vote Yes on Proposition 8.”
“When you saw this video,” Boies asked Paul, “were you affected?”
“My heart was racing and I was angry watching it. I mean, again, ‘Stand up for righteousness’? Okay. So we’re a class of citizens that need to be stood up against, for some reason. And not to mention, what I find most disturbing is the reference to ‘the devil blurring lines,’ and ‘don’t deny Jesus like Peter did,’ and this oncoming freight train. Well, what happens when a freight train hits you? You’re going to be either majorly harmed or killed by that, right?”
Paul was wound up now, couldn’t help it. “I love Jeff Zarrillo. I want to get married to Jeff. I want to start a family. I’m not going to start some movement that’s going to harm any institution or any person or any child. I’m not.”
At 12:27 P.M., Boies wrapped up. A lawyer on Cooper’s team jumped to his feet, asking that the judge call a recess for lunch. “Good idea,” Walker said. Court would resume just after 1:30.
Everyone waited until the doors shut on the freight elevator that would take them down to the court cafeteria before breaking into applause. Kris’s mother had brought the twins, Spencer and Elliott, to hear her testimony later that afternoon.
How did the morning go? Spencer wanted to know. “Oh, it was so good!” Kris exclaimed, as Jeff and Paul beamed.
The team commandeered a long table in the lunchroom, where a quote from Eleanor Roosevelt was memorialized on one wall. “Where, after all, do universal human rights begin?” the wife of the thirty-second president had asked. “In small places, close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person, the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless those rights have meaning there, they have little meaning anywhere.”
Kris pointed it out to Sandy, and then, after everyone had grabbed a sandwich, she introduced her two boys to Cleve Jones and Bruce Cohen.
“These have been the happiest months of my life,” Jones told them. “It’s so cool.”
Pulling up to the courthouse, the thirteen-year-old twins had been unnerved by the number of people gathered outside. “Whoa,” Elliott had thought as they passed protesters waving antigay signs and who were clustered around a van plastered with biblical references.
But Jones’s optimism was catching. It was cool, now that they were safely away from the crowd, to think that Kris, their mom, might actually bring about the change she was seeking.
“What are you doing?” Kris asked Elliott, whose sandy head was bent in concentration.
He held up his phone. “Returning texts from a friend.”
“About?”
“This,” he answered, the universal monosyllabic response of teens everywhere when parents fuss or pry.
Kris tensed. This was one reason why she had been so reluctant in the weeks leading up to the trial to do any interviews. Her boys hadn’t signed up for this; she had. And while Jeff had escaped cross-examination, who knew what Cooper had planned for the rest of them?
“About what is happening? Or why this is happening?”
Elliott seemed surprised. Unlike Sandy’s boys, he’d grown up with two moms. Apart from those moments when someone would say something like, “That’s so gay,” and then quickly apologize—“Dude, I wasn’t thinking!”—it was no big deal. All of his friends knew Sandy and Kris, as well as his other mother, and were supportive.
He gave Kris an “oh Mom” look before answering: “Just asking questions.”
Kris gave up, deciding to keep things light. “Maybe you should invite all your friends over,” she joked. “Gather ’round, kids, I’ve got a story to tell you.”
Spencer laughed. “Yeah, about the birds and the bees!”
While the plaintiffs finished their lunch, Cooper was upstairs grappling with a dilemma.
In the weeks leading up to the trial, he had decided against cross-examining any of the plaintiffs. Litigation is a zero-sum game. Something that might help
you, but has the potential to help your opponent more, is something to be avoided.
That Sandy had been married to a man might be relevant as it related to the question of whether sexual orientation was an immutable characteristic, one of the criteria the Supreme Court considers when deciding whether to apply heightened scrutiny, Cooper thought. But Olson was likely to preemptively put that fact into the record himself. Whatever explanation Sandy might give under cross-examination would only serve to undercut the point. And atmospherically, it would do more harm than good to be seen to be beating up on the plaintiffs in a case that centered on proving that Proposition 8 was not driven by animus toward gay people.
No, there was simply no truck in playing in Olson’s sandbox, he decided. Unless one of the plaintiffs brought up something that he simply could not allow to go unchallenged, he would stand down.
And that was the problem Cooper was now mulling with his team in a little room down the hall from Judge Walker’s courtroom. Cooper’s argument that there had been no discriminatory intent behind the initiative was potentially undercut by Paul’s testimony about how the Prop 8 campaign slogan, “Protect Our Children,” made him feel. That had to be addressed.
“Good afternoon, Mr. Katami,” Brian Raum began.
Raum, of the Alliance Defense Fund, had been chosen because he had taken Paul’s deposition back in December. His mission on cross was clear: Confront Paul with an alternative interpretation for the slogan “Protect Our Children,” no more, no less.
To that end, Raum played a campaign ad of his own, with the same stick-figure rendering of a child and its parents that had been on the bumper sticker Paul had testified about. The ad featured a couple from Massachusetts talking about how, after that state’s high court legalized same-sex marriage there, their son’s elementary school teacher had read his class a book about a “prince marrying a prince.” “If Proposition 8 fails to pass,” the ad warned, some of the “most profound consequences are for children.”
Spencer, sitting behind his mother and Sandy, felt sick. Listening to that ad, he would later recall, “was absolutely awful. It felt like ignorant people commenting on a life they did not know anything about.” But Raum forged ahead, seemingly confident that if he could show that this was one motivation behind the passage of Prop 8, it would offer a rationale that could survive the animus test and pass constitutional muster.
Directing Paul to a Yes on 8 voter guide, he asked him to read a passage out loud. “We should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay,” Paul read.
Raum pounced. “In fact, that’s what the Yes on 8 on Prop 8 campaign was seeking to protect children from, am I right?” He then circled back to the ad he had just played. “There is nothing in this ad that says that the Yes on Prop 8 campaign wanted to protect children against you because you were bad, right? It didn’t say anything like that, did it?”
“This ad doesn’t literally state—”
“That’s what I’m asking. It does not literally state it, does it?”
“This ad does not literally state that there is a harm. It insinuates one to me—”
“Thank you, Mr. Katami.”
On redirect, Boies had only one point to make: Prop 8 had been about one thing, and one thing only—stripping gays and lesbians of the right to marry. “Was there anything in Proposition 8 about what was going to be taught in schools?” he asked Paul.
“No,” Paul answered.
“No more questions, Your Honor.”
Judge Walker looked at Olson. “Plaintiffs’ next witness.”
Olson took his time with first Kris and then Sandy, his voice soft and steadying, like you might use with a horse known to startle.
Kris described how in 2003 she had proposed to Sandy, “the most sparkliest person I ever met,” at Indian Rock, an outcropping near their home in Berkeley that looked out over the entire Bay Area. She had chosen the place, she testified, so that they could always go back there as they grew old together.
“She didn’t know I had a ring, and we sat down on the rock and I put my arm around her and I said, ‘Will you marry me?’ And she looked really happy, and then she looked really confused.”
“Yes,” Sandy had answered, followed by, “Well, what does that mean? How will we even do that?”
This was before the mayor of San Francisco began marrying gay and lesbian couples at City Hall, Kris said, so “we had to invent it for ourselves.” But while they were in the midst of planning a ceremony, the city began issuing marriage licenses.
The day they were issued one of their own, Kris told the court, she was as “amazed and happy as I could ever imagine feeling.” As a lesbian, marriage was not something she had allowed herself to want, “because everyone tells you you are never going to get it.” Throughout that day, she felt as though she were floating above the ceremony: “Oh, that’s me getting married! I never thought that would happen.”
What, Olson asked, was her reaction when she learned, via a form letter, that the marriage license had been deemed invalid?
“Well, the part of me that was disbelieving and unsure of it in the first place was confirmed. That, in fact I really—almost when you’re gay, you think you don’t really deserve things.”
“And what feelings did that evoke, that experience?”
“I’m not good enough to be married.”
First Spencer, then Kris’s mother, and finally Elliott began to cry. Kris was talking now about how, recognizing that her sexual orientation was something that some people would not like, she had gone to great lengths to be funny, likable, to “develop other traits that people do like.”
“Oh my God, that’s Chad,” Kristina said.
Kris’s boys had never seen her so vulnerable. She had told them stories about her life, but her manner had been matter-of-fact. “All these years, this has been eating away at her,” Elliott thought, “and I never knew.”
Even Cooper, leaning back in his chair at the counsel’s table, was deeply moved. “They seemed like two of the most decent, likable, friendly, good people that you would ever want to meet,” he said, recalling their testimony years later.
In the days and months ahead, there would be times when the plaintiffs would wonder whether Cooper’s heart was really in this fight. That wasn’t it, not exactly. For him, the question of whether the Constitution mandated same-sex marriage was an easy one. But, he said, “I don’t think this is an easy political issue.” He would not say whether he would have voted for or against Prop 8 had he lived in California, but it was clear that his views were more nuanced than his clients’, the initiative’s proponents. Listening to Kris testify, he said, reminded him of “why this is such an agonizingly difficult issue.”
“What was going through my head? The best I can do is say that I believe that her position, and the view that many people take in favor of allowing people like her and her partner to get married, is a legitimate position that I respect.”
Olson, oblivious to the effect this was having on his opponent, pressed on. He was having a hard enough time not breaking down himself.
As Cooper had expected, Olson preemptively asked Sandy about her first marriage, and whether she was sure that she was gay. “You’ve lived with a husband. You said you loved him. Some people might say, ‘Well, it’s this and then it’s that and it could be this again.’ Answer that.”
“Well, I’m convinced because at forty-seven years old I have fallen in love one time,” she replied, “and it’s with Kris.”
Why, then, he wanted to know, did the two women not try to marry again when the California Supreme Court struck down the law that had banned cities like San Francisco from issuing them a license?
“I don’t want to be humiliated anymore,” Sandy said. “I told Kris, ‘I want to marry you in the worst way, but I want it to be p
ermanent and I don’t want any possibility of it being taken away.’”
What sorts of awkward or humiliating situations did they face as a result of not being married? Olson asked. “Give the court some examples of things in everyday life.”
Sandy described picking up Kris’s boys from school. She thought of herself as their stepmother, but she would have to explain that she was “the domestic partner of their mother.” At the doctor’s office, forms asked if patients were single, married, or divorced. There was no box for them, like they didn’t even exist. And how when they went to stores together, someone was always asking if they were sisters, a question that meant they had to decide whether to come out to a perfect stranger or simply buy the microwave they were there to get.
“The decision every day to come out or not come out, at work, at home, at PTA, at music, at soccer, is exhausting,” Kris said. “I’m a forty-five-year-old woman. I have been in love with a woman for ten years, and I don’t have a word to tell anybody about that. I don’t have a word.”
“Would a word do it?” Olson asked.
“Well, why would everybody be getting married if it didn’t do anything? I think it must do something.”
If the courts of the United States were ultimately to decide that same-sex couples did have a constitutional right to marry, “do you think that would have an effect on other acts of discrimination against you?” Olson asked Kris.
“Objection, Your Honor.” Raum stood. “Speculation.”
“Close, but objection overruled,” Walker said. “State of mind. You may answer.”
“I believe for me, personally as a lesbian, that if I had grown up in a world where the most important decision I was going to make as an adult was treated the same way as everybody else’s decision, that I would not have been treated the way I was,” Kris said.
“There’s something so humiliating about everybody knowing that you want to make that decision and you don’t get to—that, you know, it’s hard to face the people at work and the people even here right now. And many of you have this, but I don’t. So I have to still find a way to feel okay and not take every bit of discriminatory behavior toward me too personally, because in the end that will only hurt me and my family.
