by Becker, Jo
When Zia had been asked under cross-examination about some articles she had authored, she had stumbled a little. “To some gay rights activists, fighting for same-sex marriage is too petty-bourgeoisie, too much about the nuclear family, cocooning, property rights, and all the bad patriarchal things that marriage stands for,” she had written. One of the reasons she had married her partner, she wrote, was to express “defiance against the warmongering fundamentalist regime in Washington.”
Her response—“That sounds like something I wrote”—had provoked laughter in the courtroom, but the lawyers on Boies’s team who had been brought in to ensure that witnesses like Zia were ready for any question that might come their way found it wanting.
“She was prepped seven ways from Sunday on that,” said Steve Holtzman, a lawyer who had worked in the trenches with Boies on the Microsoft trial. “She was prepared to say she thought that before.”
Olson took a longer view. After working all weekend, he emerged from his office on Monday, January 18. It was Martin Luther King Jr. Day, so the court was not in session, but the trial would resume the following day. Mulling over how the first week had gone with Chad and the rest of the political team in the war room, Olson was in an expansive mood. He likened the trial to a boxing match, except that the judge was keeping score in his own head. But so far, he liked their chances.
Olson and the appellate specialists on his team had been spending a lot of time reviewing the transcripts, checking to ensure that the record included testimony and evidence to back up each of the legal claims he would need to make if the case wound up in the Supreme Court.
The best Cooper had been able to do so far, by Olson’s calculations, had been to suggest that the evidence they had put on so far was irrelevant, the word that Andy Pugno, the general counsel of Prop 8, had used during one of the daily dueling press conferences both sides had taken to holding: “The fact that children in other situations are not harmed by other situations is irrelevant,” he had told reporters, spinning Dr. Lamb’s testimony.
“Nothing they did touched the core of our witnesses’ testimony,” Olson had said over dinner later that night at his hotel, a sentiment he repeated to Chad and the rest of the media team now. As long as they avoided a “knockdown punch at the end of the final round,” they were in good shape, he said.
“Watch out for one another. If you see us going down a bad road, say something,” he urged. “We are working on something that every single one of us will remember as one of the finest things we ever did.”
FIFTEEN
WHO’S A BIGOT?
The San Francisco City Attorney’s Office overseen by Dennis Herrera had done battle with gun distributors and lead paint manufacturers for deceptive marketing practices, taken on giant financial institutions over credit card scams, and sued some of the state’s largest energy companies. His office’s aggressive litigation strategy and involvement at every phase of the high-profile marriage fight had allowed him to attract the type of talent typically found at large law firms that pay exponentially more than the city could, he currently had three U.S. Supreme Court clerks working on the Prop 8 case.
But it had been nine years since Herrera had last questioned a witness at trial himself, and he was nervous. Worried about the pounding rain and unable to sleep, he had ordered a car service in the middle of the night to ensure he and his witness would make it to court looking presentable when trial resumed at 8:30 Tuesday morning, then cursed himself for walking out into the downpour without an umbrella. He knew that his distress over the weather was just a proxy for his real concern: All eyes were going to be on him in court today, and not everyone was as sold as he was about the prospect of putting San Diego mayor Jerry Sanders on the stand.
It pays at trial to be risk averse. A witness like Sanders was a gamble, and an unnecessary one at that because he served no imperative legal purpose. “I’m not real crazy about that,” Olson had said during one pretrial planning session. “What issue in our case is he relevant to?”
Herrera understood the concern. Olson was thinking two steps ahead, and he did not want anything in the cold hard record of the case that some judge could hang his hat on to justify ruling against them during the appeals phase of the case. What about political power? the Gibson lawyers had asked Herrera. By having an elected official testify in favor of the plaintiffs, would they be giving Cooper ammunition to argue that gays and lesbians have access to the political process and therefore should not be considered a suspect class?
Herrera came at it from a different perspective. As a politician, he felt that the legal team needed to speak to people who did not agree with them, people like his mother-in-law, a deeply religious woman who had spent time in a Catholic convent. Sanders was someone who could do that, a Republican former police chief elected mayor in a conservative part of the state who was prepared to testify about coming to terms with his own unthinking attitudes toward gays and lesbians.
By showing that it was possible to be prejudiced without being a bigot, he thought that Sanders could cause people to examine their own views, while undercutting Cooper’s argument that the 52 percent of voters who had supported Prop 8 could not possibly have been motivated by animus in a way that Herrera hoped would speak to Justice Kennedy.
Chad and the rest of the media team agreed, and Boies and Olson had finally given way, despite their reservations. This case had always been as much about public education as it was creating a legal record, and as Yusef Robb put it, “I think the press will like the Republican police chief. He has a story and it should be good shit.”
Sanders’s moment of reckoning had come in September 2007. The San Diego city council had resolved to file a brief in the California Supreme Court case supporting the right of gays and lesbians to marry. During his campaign, Sanders had opposed same-sex marriage, reasoning that civil unions offered a fair alternative. Should he stick with that position and veto the resolution? He decided to talk the decision over with his daughter, Lisa.
Describing their relationship, he started to choke up. She was sitting in the courtroom now, an attractive young woman with brown hair that fell beneath her shoulders, dressed in a stylish yellow outfit and wearing pearls.
When she was a little girl, “she was basically my shadow,” he began, before he was forced to stop. “Trying not to look at my daughter right now,” he said, before collecting himself enough to resume telling the court about the call she had made during her sophomore year in college, telling him that she needed to come home to discuss something with him. His reaction, when she told him she was a lesbian, was one of overwhelming love, but also concern.
He recalled how as a young police officer, he had used homophobic slurs in locker rooms and lineups, only stopping after seeing how unfair it was when a sergeant he respected got drummed out of his department for being gay. “I thought it was very tough on gay people in society.”
Lisa advised him to veto the resolution. His Republican base could desert him if he came out in support of same-sex marriage, she said, and “she felt that it was important that I be reelected because I was a good mayor.”
Comforted by her blessing, Sanders made up his mind to do just that. As a courtesy, he convened a group of gay and lesbian friends to tell them his decision before publicly announcing it. He thought they would understand, given his support for civil unions. Now he recalled that night for the court.
“I remember one of our neighbors, who I have known for quite some time, said, basically, ‘I walk by here—my partner and I walk by here all the time, with our children. And you always stop, when you are doing yard work, and say hello to them and talk to them. You know, we’re a family just like you’re a family.’” Another neighbor told him she loved her children just as much as he did and felt that they deserved to have parents who were married.
“The depth of the feeling was unbelievable. The depth of the hurt,” he said.
“I could see the harm that I had done by considering the veto.”
Herrera then played a clip of the press conference the mayor had held the following day. In it, Sanders haltingly spoke of his own daughter, and of the gay members of his staff, in explaining that he had come to the conclusion that the right thing to do was to come out against Proposition 8 by signing the resolution.
“I simply could not bring myself to tell an entire group of people in our community they were less important, less worthy, or less deserving of the rights and responsibilities of marriage than anyone else.”
Rob Reiner could not take his eyes off the screen. The director loved to make movies, but at heart he was an inquisitive policy wonk. During breaks he often played law student, quizzing the lawyers about case law that had been mentioned or the tactics behind what he was seeing. But he immediately grasped, in a way that Olson and Boies had not, the audience-grabbing potential of this tearful former cop’s change of heart.
“Wow,” he whispered to Chad.
Even Cooper’s wife, Debbie, a slim, dark-haired Alabaman beauty who, like Olson’s wife, Lady, attended trial every day, looked riveted.
“Mr. Mayor, you’re obviously very emotional during that press conference,” Herrera said. “Can you tell us why?”
“I was emotional because of the fact that I felt that I came very close to making a bad decision, one that would affect, literally, hundreds of thousands of people. I came very close to showing the prejudice that I obviously had to my daughter, to my staff, and to the community in San Diego,” he said.
Deep down, he knew, as he put it, that “if government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do the same thing.
“And yet, the fact that I still believed that civil unions were equal to marriage, I think, really kind of shook me, because I think that the decisions I made on that were grounded in prejudice.
“It didn’t mean I hated gay people,” he said. “It simply meant that I hadn’t understood the issue clearly enough.”
The cross-examination of Sanders, as Olson and Boies had feared, began with a focus on political power, with Brian Raum, Cooper’s co-counsel from the Alliance Defense Fund, quickly ticking through various measures of progress. But Sanders generally gave as good as he got.
He acknowledged that over the course of his twenty-six-year career at the San Diego Police Department, discrimination against gay and lesbian officers had lessened, in part because “we worked very hard on that issue,” and that as mayor he had tried to be responsive to the concerns of the gay and lesbian community. But when given the chance on redirect, he also told the court that in San Diego “it’s easier to make a decision against the gay and lesbian community than it is to make it for them,” and that he could not think of a group of Americans that had faced stronger political opposition in recent years.
It was true, he said, that there were three openly gay politicians in San Diego, two on the city council and one in the state senate, and it was also true that he himself had been reelected, receiving 54 percent of the vote in a six-way Republican primary, despite having taken the position he did and subsequently campaigning against Prop 8.
But the mayor bristled when Raum suggested that his position had not damaged his election prospects, saying, “I can’t say it made it easy.” In fact, he had told the court during Herrera’s direct, the local GOP had threatened to withdraw its endorsement.
People might have voted for Prop 8 for a variety of reasons—religious conviction, a desire to preserve tradition, or the belief that children ought to be raised by, as Raum put it, the “man and a woman whose sexual union brought them into the world,” Sanders said, concessions that Cooper would surely use as the case made its way up on appeal. But he never wavered on his fundamental point. The fact that people genuinely believed those things did not mean that they weren’t prejudiced, just as he had been in believing that civil unions were an acceptable substitute for marriage. Their feelings, he said, were still grounded in animus. “I don’t believe that they realized what they were saying.”
But from the war room’s point of view, perhaps the best moment of all came after Sanders had stepped down. During the noon press briefing, Sanders addressed an ad put out by proponents of Proposition 8 during the campaign that Raum had played in court that morning. It showed images of vandalized property and portrayed the Yes on 8 supporters as the real underdogs, victimized for holding a politically unpopular view. It was a message that drove Chad crazy, and he had been pressing his team to push back.
“I have to tell you, as a police officer for over twenty-six years, as a mayor, that is not what I’ve seen,” Sanders said, looking straight into the news cameras. “I’ve seen hate crimes, I’ve seen people beaten to death, I’ve seen people almost beaten to death, and never has that been a somebody that was for Yes on Proposition 8. Instead, it’s always been the gay and lesbian community.”
Chad could not have said it better had he scripted it himself. The war room team’s efforts were paying off, with a ton of “earned media” coverage of the case in both local and national outlets. The quotes that Yusef Robb, in consultation with the lawyers, sent out in press releases each day were often those chosen by harried reporters writing on the fly. Journalists who had never set foot in the courtroom were relying on information AFER was posting on its Web site. Editorial boards were taking their side, influential columnists like the New York Times’s Maureen Dowd had made the trip out to San Francisco to see firsthand what was happening in Walker’s courtroom, and national network and cable news programs were booking Olson and Boies.
It was still maddening to Chad that talk show hosts like Oprah and Ellen DeGeneres remained noncommittal about having the plaintiffs on their talk shows, despite repeated entreaties. DeGeneres, whose decision to come out as a lesbian in 1997 was considered so bold in those days that it made the cover of Time magazine, was particularly baffling.
“I can’t figure it out,” Amanda Crumley said. “Maybe they are afraid that it will turn off their Middle America audience.”
But People magazine, after much prodding, had finally bitten, agreeing to do a feature on Kris and Sandy that would reach its forty-three million readers.
It was a huge get. Because People is an impulse buy, often plucked off the supermarket shelf at checkout, the magazine’s editors test what they put in its pages with focus groups. Kristina took it as a sign that just maybe the country was beginning to move their way.
“The other side puts out statements, but they aren’t helping people do their jobs,” Robb observed. “Maybe they just figure, ‘Fuck the L.A. Times, fuck the liberal media.’”
“Press-wise,” Chad agreed, congratulating his team that night, “we are clearly outgunning them.”
SIXTEEN
A COURTROOM JOURNEY TO THE NETHERLANDS, VIA MASSACHUSETTS
Each evening, the legal team defending Prop 8 would huddle in the cluttered living area of the suite where Chuck Cooper was staying. With no office in San Francisco, the corporate residential apartments they occupied had become cluttered live-work spaces, the floors a tangle of wires leading to rented printers, and available surfaces stacked high with binders and documents.
Cooper, like Olson, had for the most part delegated the actual job of questioning witnesses to his deputies. That freed him up to think strategically about the points his team should—and should not—be making. “How,” he would ask himself as he reviewed the lines of questioning in each cross-examination plan, “will this fall on the ear of the one person I care about, Justice Kennedy?”
But some battles are important enough to the outcome of a war that the general needs to climb into the trenches. And that is why Cooper assigned himself the job of cross-examining the expert witness whom David Boies called to the stand after Sanders finished on Tuesday.
Lee Badgett was an econom
ist at the University of Massachusetts Amherst, and the author of When Gay People Get Married and another book called Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men. She had been an effective witness in a number of the state court marriage cases, and Cooper knew going in that he would need to “rough her up,” as he later put it.
Under friendly questioning by Boies, she outlined the three main findings of her expert report for the court.
First, she testified, Proposition 8, far from serving a rational state interest, inflicted substantial economic harm. Keeping same-sex couples in California from marrying cost those couples thousands of dollars a year in higher tax bills and lost spousal health and other employment benefits. That, in turn, harmed the nearly forty thousand children whom same-sex couples were raising in California, she told the court, because “that’s thousands of dollars that will not be available to spend on children or to save for their college education.”
Nor was its passage in the state’s interest, she testified. Not only do struggling families tend to require more government assistance, but by her estimate California stood to lose $40 million over a three-year period alone in same-sex wedding-related tax revenue. That part of her testimony echoed what the chief economist for the city of San Francisco had told the court the previous week. Married individuals, on average, behave in healthier ways than single individuals, Edmund Egan had testified, which translates into greater productivity, lower worker absenteeism, and more payroll taxes.
Second, Badgett offered empirical evidence for the proposition that domestic partnerships do not offer an equitable compromise. Gays and lesbians who would marry do not always take advantage of the benefits domestic partnerships offer by registering, she told the court, in part because the arrangement is seen as “second class” and less valuable. Evidence for that could be seen in what she called the “take-up rate” for the different legal statuses.
