Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  Still, other members of the team could not help but think the decision, with its personal asides, was a bad omen. “This was a smackdown of Judge Walker,” McGill told the young gay lawyer Enrique Monagas—“the Big E,” McGill had nicknamed him—who had filed the case.

  Amir Tayrani, a precisely spoken Gibson Dunn associate who had worked closely with McGill on Olson’s Supreme Court cases, noted that it wasn’t just Walker the Supreme Court had singled out. The majority had buttressed its finding that witnesses could be subject to intimidation by footnoting Olson’s own words in his pending challenge of the nation’s campaign finance laws. In a brief filed months before he first met with the Reiners, Olson had pointed to “widespread economic reprisals against financial supporters of California’s Proposition 8” to argue that organizations like his client, Citizens United, should not be forced to disclose political donors.

  “Troubling,” was how Tayrani put it.

  When Olson had first asked Tayrani to work on the case, the thirty-two-year-old associate had been skeptical that the Constitution contained a right for gays and lesbians to marry. He had once clerked for one of the most conservative judges on the Ninth Circuit, and he generally took a like-minded view of the law.

  But as Tayrani had immersed himself in the case law, he had come to believe that bans like Prop 8 were indefensible and ought to be struck down. Now he had a personal stake as well in not seeing the plaintiffs lose. “I haven’t had many gay and lesbian friends,” he said. “Just talking to our clients and realizing how much they want to marry and that we’ve been keeping them from being happy—it has been eye-opening.”

  It had been a draining few days for everyone on the team, and not just because of the Supreme Court ruling. Listening to the cross-examinations had at times been maddening, as when Thompson repeatedly noted that the gay rights movement had historically never made marriage a priority.

  “That’s a bit like suggesting that because slaves never demanded the right to run for governor, they did not want their freedom,” Cleve Jones said after court adjourned for the day. Growing up, he had prayed every night, “Please, God, fix me.” When someone at school beat him up and called him a homosexual, he had looked the word up in a book his father, a psychologist, kept in the study. It was in the same chapter as genital deformities and pedophilia.

  It was true that the burgeoning gay rights movement he had joined when he moved to San Francisco in 1973 was informed by women’s liberation and the sense of sexual freedom sweeping the nation in the late 1960s and early 1970s. But to Jones, its early priorities, so modest as to be sad, had more to do with the reality of the times: Just to be able to cease being invisible and live out in the open seemed a lot. And later, during the height of the HIV/AIDS crisis, the goal was simply to stay alive when so many friends were being buried, which Jones had managed to do despite being stricken.

  To calm his nerves, he decided to walk over to City Hall and pay his respects to his mentor, Harvey Milk. He would have loved the audacity of the trial, and especially the sense of self-worth that infused it.

  Walking into the building, Jones headed for a grand marble staircase. At the top sits a bust of the gay rights leader, near the office where Jones had found him sprawled on the carpet, shot dead with his stocking feet sticking out into the hallway. He gently patted the bust’s bronze cheek.

  “Oh, Harvey,” he said. “If only you could see what’s going on down the street.”

  THIRTEEN

  STIGMA

  On the fourth day of trial, the plaintiffs called Dr. Ilan Meyer, a psychiatric epidemiologist, to the stand. His job was to tell the court about the consequences of the discrimination that Chauncey had described. It felt, Chad would tell Kristina afterward, like “you’re in therapy, in court, in front of your closest friends—and your enemies.”

  Meyer, an associate professor of sociomedical sciences at Columbia University’s Mailman School of Public Health, had developed a groundbreaking theory called “minority stress syndrome” about how the small and large slights faced by gays and lesbians have a cumulative adverse impact on their psychological well-being, making them twice as likely as their straight counterparts to suffer from disorders ranging from depression and anxiety to substance abuse.

  The team had other witnesses who could speak to the harm caused by discrimination, and for that reason, several of the senior members of the team were initially hesitant about calling Meyer. Why give Cooper two bites at that apple?

  But the lawyer who had helped find and prep him, Sarah Piepmeier, felt strongly that his study of minority stress syndrome provided uniquely compelling connective tissue that would ultimately help the justices understand how difficult it was to be gay and excluded, just as the doll test had once aided the Warren Court in understanding what it meant to be black and segregated. Since she was one of only a few gay lawyers on the Gibson team, her view was given weight.

  Now, listening to Meyer talk about how society stigmatizes gays and lesbians, Boutrous leaned over and whispered to her that she had been right: “What he’s saying is perfect!”

  People in general experience different kinds of stress. There is the acute stress of a life event, such as a death in the family; the chronic stress of an ongoing condition such as unemployment; or daily life stressors, such as traffic or a long line at the bank. But when a person has an attribute that society perceives to be a negative one, Meyer testified, that attribute becomes inseparable from the person, who is then devalued, made into a pariah of sorts. That, Meyer said, is the source of an additional stress, called minority stress.

  Meyer had studied this effect in hundreds of gays and lesbians, and his work had been given the stamp of approval of the National Academy of Sciences’ Institute of Medicine.

  Minority stress, he explained, can be caused by outright prejudice, such as being called a name, or worse, being the victim of a hate crime. But it can also be caused by events that in isolation seem innocuous, like the fact that the form Sandy’s doctor used did not have a box for her to check.

  “One of the things we hear over and over is forms, filling out forms. And it’s kind of bewildering, because on one hand you might say, ‘What’s the big deal about filling out a form?’” he testified. “And the only way I can explain it is that it is really not anything about the form. It is that the form evokes something much larger for the person. It evokes a social disapproval, a rejection.”

  Same thing when Paul and Jeff checked into a hotel and a desk clerk became confused about the type of room they wanted. A straight couple would probably never be asked, and if they were, they would simply sort it out. But for a gay person, Meyer said, “it’s an area of great sensitivity because it really talks to their rejection.”

  Another source of minority stress comes from the expectation of discrimination and rejection, he said, whether it happens or not. “This is a very—well, to me, interesting process that occurs in populations that are—that are used to prejudice. By ‘used’ I mean that they know about the prejudice that exists in society. And what happens is that a person who knows that they might be rejected or discriminated against needs to maintain a certain vigilance about their interactions in society that would, first of all, guarantee their safety. So an example that I often use when I talk about this is a gay couple walking down the street. In my experience, very often, regardless of how friendly their street is, they would have to monitor the kind of affection that they display with each other, because perhaps somebody will come and throw stones and eggs, and so forth.”

  A third source of minority stress for gays and lesbians comes from the effort of concealing something so fundamental to their identity. Even people who are “out” do it occasionally, and members of the U.S. military must, thanks to the Don’t Ask, Don’t Tell policy. Maintaining a lie takes a very strong cognitive effort, and researchers who have studied concealment in other contexts have called it
a “private hell.”

  Finally, Meyer told the court, gays and lesbians experience the stress of internalized homophobia, “basically internalizing or taking in negative attitudes” and thus living with a diminished expectation about what is possible in their lives.

  Take, for instance, one pervasive societal stigma: that gays and lesbians are “incapable of relationships, of intimate relationships, they may be undesiring, even, of intimate relationships,” Meyer said. That stereotype can be found in an excerpt of a book, popular in the 1960s and 1970s, called Everything You Always Wanted to Know About Sex (but Were Afraid to Ask).

  The book was written in a Q&A format, and one question posed was, “What about all the homosexuals who live together happily for years?” The answer: “They are mighty rare birds among the homosexual flock. Moreover, the ‘happy’ part remains to be seen. The bitterest argument between husband and wife is a passionate love sonnet by comparison with a dialogue between a butch and his queen. Live together? Yes. Happily? Hardly.”

  The portrayal, Meyer said, was filled with “ridicule and contempt,” and if a young gay man read it he might internalize that stigma. Meyer told the court that shutting gays and lesbians out of marriage as Prop 8 did was to shut them out of an institution with social meaning that people aspire to, telling them, “If you are gay or lesbian, you cannot achieve this particular goal.”

  Cross-examining Meyer, a lawyer on Cooper’s team questioned the professor’s analytics, noting that he had not studied whether gays and lesbians fared better in places where marriage was legal, and made a point of telling the court that Meyer had given money to defeat Proposition 8. But Meyer held firm to his conclusions.

  Kristina, watching Judge Walker scribbling down notes, wondered what he was thinking—and whether he realized what might soon be headed his way.

  The first sign of trouble had come a day earlier in the form of a headline in the Wall Street Journal: QUIRKY JUDGE PRESIDES IN GAY MARRIAGE CASE.

  “So it begins,” Kristina said with a sigh.

  “Can’t spell ‘quirky’ without ‘queer,’” the opposition researcher she and Chad had just brought on board agreed.

  No one knew for sure whether Cooper and his team were aware of Judge Walker’s sexuality, and the Journal piece did not mention it. But by day four of the trial, it was clear that there was a concerted effort to attack the judge as biased.

  Former attorney general Edwin Meese III, who had led the Justice Department when Walker was nominated, had penned an op-ed in the New York Times accusing Walker of “stacking the deck” in favor of the plaintiffs with his pretrial rulings. “Kangaroo-court procedures,” declared Edward Whelan III, a former Justice Scalia clerk and a contributor to the National Review Online’s Bench Memos, an influential outlet in the conservative legal echo chamber.

  That day, the war room fielded its first call from a reporter asking whether Walker was gay. “Unconfirmable,” was the response.

  Olson’s legal team and Chad’s media war room were now working in near-perfect synchrony, helping one another address both the court and the court of public opinion. The lawyers had compiled a list of phrases, drawn from Justice Kennedy’s opinions, that they felt would resonate with the Court’s swing voter. Chad and the plaintiffs wove them into their daily public statements and press releases, framing the right to marry as a matter of “human dignity,” “individual liberty,” and “freedom” whenever possible. Meanwhile, Chad conferred with the legal team about when to call key witnesses for maximum news cycle advantage, while the researcher that AFER had hired dug into the background of Cooper’s star witness, David Blankenhorn.

  Blankenhorn held himself out to be a liberal Democrat opposed to same-sex marriage, but his foundation work on marriage and fatherhood was funded by right-wing warriors like billionaire Richard Scaife. And it turned out that the highest degree he had earned was a master’s, in a field that had nothing to do with the subject of his testimony: His thesis was on labor union disputes among cabinetmakers in Victorian England.

  “Oh, that’s too good!” Kristina exclaimed when she heard it. “Let’s push that out on the day he goes on the stand.”

  “Interesting,” McGill agreed, and then, because he was, in his words, “the most right-wing nut job on our legal team besides Ted O.,” he had to jokingly add, “You elites! Thinking you need a PhD to be an expert.”

  But the attacks on the judge, amplified by the Supreme Court’s reversal of his decision to broadcast the trial, were worrisome. Something needed to be done.

  “They’ve got surrogates to paint the picture of a judge gone wild, and trial run amok,” McGill said. “The volume on that is going to get turned up and up and up.”

  The judge could not defend himself. And the plaintiffs could not be seen to be defending him. So Yusef Robb had been dispatched to line up California Bar Association types to, as he put it, “talk about how careful and boring he is.”

  Margaret Hoover, a Republican political commentator who had worked in several capacities for President George W. Bush and was the great-granddaughter of the thirty-first president, was also helpful. She had recently agreed to join AFER’s advisory board, and in a post on FoxNews.com, she defended the proceedings in California. “You may think, ‘San Francisco liberals are at it again! Hijacking the courts, inventing new constitutional rights! Stop there,” she wrote. Olson, the lead counsel in the case, was “one of the most respected conservatives in America.”

  Chad and Kristina, meanwhile, focused on attacking the Supreme Court’s decision prohibiting the broadcasting of the trial, which their opponents were now citing as the latest evidence of Walker’s wrongheadedness. The team did not want to criticize the justices directly.

  But surrogates like Los Angeles mayor Antonio Villaraigosa, writing in the Huffington Post, said the “unjust” ruling was keeping the public from seeing “the true face of intolerance and prejudice behind Proposition 8,” while behind the scenes Chad and his team worked newspaper editorial boards. Olson, after seeing that the New York Times had called proponents’ claims of intimidation “hazy and unsubstantiated,” e-mailed Chad: “For once I agree with a NYT editorial.”

  They had done what they could do. That night in the war room, Chad turned to a tangential issue. Appellate courts such as the Ninth Circuit and the Supreme Court do not hear from witnesses directly; they simply review the written record to determine whether the law was correctly applied. Now that there was no chance that the justices of the Supreme Court would see the plaintiffs’ emotional testimony on television, Olson was urging Chad to try to find other ways to circulate their stories.

  That morning, Cooper had asked that Judge Walker turn off the cameras and destroy the footage filmed to date. Walker had refused, saying he wanted to be able to review the footage in chambers, and the back-and-forth had given Chad an idea.

  The war room should turn the fact that “the other side is trying to have the plaintiffs’ testimony destroyed” into an opportunity, he said. It could make the plaintiffs more attractive to daytime talk shows, for instance. Never mind that it was impossible at the moment to break through the wall-to-wall coverage of a catastrophic earthquake that had just hit Haiti. Chad was not one to listen to excuses.

  “Free the plaintiffs,” he said, urging them to be creative. “It’s a great message.”

  FOURTEEN

  ON PARENTS AND FAMILIES

  The e-mail was buried in the thirty thousand pages of documents that ProtectMarriage.com had been forced to deliver to Gibson Dunn. And as soon as Matt McGill saw it, he knew that the fight to win an exception to the Ninth Circuit’s order protecting internal campaign documents from discovery had been worth it.

  Attached was an inflammatory article entitled “21 Reasons Why Gender Matters” that portrayed gays and lesbians as sick “sex addicts” and same-gender parents as a danger to children. Ron Prentice, the executive
director of ProtectMarriage.com, had e-mailed it to an undisclosed list of Proposition 8 supporters, instructing them to make use of it in the campaign.

  “All—the following is self-explanatory,” he wrote. “It should be very helpful in many ways, such as sermons, etc. Ron.”

  The team had spotted the article well before trial, but until now had no way to tie the views it expressed to the proponents of Prop 8. It was, McGill thought, the perfect framing device for the testimony of the expert witness whom he called on the fifth day of trial, Michael Lamb, a psychologist affiliated with the Department of Social and Developmental Psychology at Cambridge University. The article was filled with claims unsupported by science, and it offered an opportunity to rebut the oft-stated claim, repeated in the article that Prentice had sent around, that bans like Prop 8 were justified because they promoted the optimal child-rearing environment.

  For a law to pass the rational basis test, the Supreme Court has held that its justification must have “some footing” in reality. As McGill liked to say, “You could not pass a law based on the idea that the earth is flat, when the evidence is conclusive that it is not.” McGill hoped to use Lamb, a renowned child development expert who had written or edited some forty books on developmental psychology, to portray the proponents of Proposition 8 as the flat-earthers of today.

  McGill had never before examined a witness during a trial. As an appellate guy, he spent his days buried in Supreme Court precedent and drafting briefs. Perry Mason it was not. But McGill had swagger and, it soon became clear, a natural feel for what makes for good courtroom drama.

  “So, Dr. Lamb,” he began, “what makes a good parent?”

  “A good parent,” Lamb answered, “is one who is effective at reading the signals of that child, understanding what that child needs, and providing appropriate stimulation, guidance, and setting appropriate limits for their children.”