by Becker, Jo
By any measure, Segura told the court, gays and lesbians are relatively powerless to address the discrimination they face. He began with the ballot initiative process that had stripped them of the right to marry in California. As Matt McGill explained, “The other side is going to pound the table and say, ‘The people have spoken, the people have spoken!’ And we’re going to say, ‘Yeah, that’s part of the problem.’”
Segura told the court that ballot initiatives, which allow voters to bypass their elected representatives and pass laws or amendments to their state constitutions like Prop 8, have historically been a tool for the majority to roll back the legislative or judicial gains of unpopular minorities. When the federal government took steps in the 1960s to protect African Americans from housing discrimination, for instance, California voters passed an initiative allowing property owners to continue to rent or sell to whomever they wanted. More recently, voters in the border state had taken aim at Latino immigrants with an initiative that allowed the state to deny benefits to anyone suspected of being illegal.
But no group in America had been targeted by ballot initiatives more than gays and lesbians; Segura put the number of measures at around two hundred since the 1970s. He said gays and lesbians had lost 70 percent of those contests, and 100 percent of the contests that specifically involved banning them from marrying or adopting children.
“The initiative process has really been the Waterloo of gay and lesbian politics.”
Another measure of the political powerlessness of gays and lesbians, he said, could be found in hate crime statistics. National data compiled by the FBI showed that violence against gays and lesbians had increased in the previous five years. In 2008, the last year for which data was available, 71 percent of all hate-motivated murders and 55 percent of all hate-motivated rapes in the nation were of gay men and lesbians. Locally, while hate crimes based on race, ethnicity, or national origin had fallen by 16 percent in Los Angeles from 2007 to 2008, the number targeting gays and lesbians had jumped by 21 percent.
“I have known of individuals who simply don’t leave a bar without two people because it’s just not safe,” Segura said. “There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity [more] than a gay man or lesbian.”
Ted Boutrous, who was handling the direct, turned next to what Segura called a “feeling thermometer.” Political scientists ask people to rate, on a scale of zero to 100, how warmly they feel toward various religious, political, ethnic, and other groups. Those test showed that while Americans had grown warmer toward gays and lesbians over time, they were still “not very fond” of them, Segura testified.
Every group has its haters, but what struck Segura was that racial minority groups like African Americans and Latinos that still faced significant discrimination and were afforded extra judicial protection were nonetheless held in higher esteem than gays and lesbians.
The pluralistic ideal, “where I’m trying to persuade you of the rightness of my position and you are trying to persuade me of the rightness of your position,” presumes that two groups armed with resources can fight out their disagreements in the democratic process, Segura said. But it does not work when one of those groups is as underrepresented in elected politics as gays and lesbians are, in a climate where not only “fringe” elements of society but sitting U.S. senators and cable talk show hosts feel free to publicly compare the desire of two members of the same sex to marry to a man wanting to marry his turtle, dog, or goat.
When a group is seen as “morally inferior, a threat to children, a threat to freedom, if there’s these deeply seated beliefs, the range of compromise is dramatically limited,” he told the court. “It’s very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person.”
Olson understood, better than some of the liberal members of the legal team, the pitfalls of talking about the role organized religion played in the passage of Proposition 8. Close friends of his, good people, opposed same-sex marriage out of religious principle. Six of the nine justices, including Justice Kennedy, belonged to the Catholic Church, which taught that homosexual acts are a “serious depravity.”
This case was about whether government could discriminate—the Constitution clearly allows churches to refuse to marry same-sex couples—and Olson’s gut told him to steer clear of a line of argument that had the potential to drag him into a distracting religious liberties debate and turn off the very people he was trying to bring around.
But as much as Olson wanted to be sensitive to people’s religious convictions and not “turn this into God versus gays,” as Boutrous put it, his views on the matter evolved as his team dug into the inner workings of ProtectMarriage.com. The discovery documents that Cooper had been forced to turn over, along with materials culled from public sources, made clear that a powerhouse coalition of religious groups had formed the backbone of ProtectMarriage.com’s Yes on 8 political operation.
One of the chief architects of the campaign was Catholic archbishop Salvatore Cordileone of San Francisco. He had enlisted Maggie Gallagher, the cofounder of the nonprofit National Organization for Marriage and one of the most vocal opponents of same-sex marriage, to help put Prop 8 on the ballot. NOM, as it is known, became a conduit that allowed donors to anonymously give to the ProtectMarriage.com campaign.
Chief among them: the Mormon Church, which not only raised around half of the nearly $39 million spent to pass Prop 8, but provided twenty thousand volunteers to get out the vote, according to one document. Evangelical ministers and groups like Focus on the Family rounded out what other documents entered into evidence described as “an aggressive grassroots campaign” involving coordination among as many as three thousand pastors.
There was even a “Pastors’ Rapid Response Team” to quickly disseminate targeted messages to congregations. An e-mail that Mark Jansson, one of the five official proponents of Prop 8 and the Mormon Church’s liaison to the campaign, had been forced to turn over stated that the campaign “was entirely under priesthood direction.”
The influence that organized religion wielded in shaping Californians’ views on same-sex marriage simply could not be ignored, and a decision had been made to address it head-on during Segura’s testimony. But first, why not set the stage by letting two of Cooper’s withdrawn witnesses do the talking?
That morning, extended excerpts from the depositions that Boies had taken of the two McGill University religious scholars had been played for the court. In addition to the helpful comments each had made about the children of same-sex couples benefiting if their parents were allowed to marry, both acknowledged that there was a religious component to antigay bigotry, with one even agreeing that it had helped create a climate of physical danger.
“Unbelievable,” Rob Reiner told Olson during a break. “Did you kill the guy? Yes! Did you use this knife? Yes!”
“David isn’t telling you, but he hypnotized those witnesses,” Olson said, as Yusef Robb rushed past to put the finishing touches on a press release entitled “Defendant Experts Undercut Prop 8.”
Cooper, listening, had slumped over to one side, a resigned look on his face. Even if he could have convinced his withdrawn witnesses to take the stand, he’d made the determination that it likely would not have helped matters. In the end, all he could do was turn on the experts, entering into evidence those portions of their depositions in which Boies had attacked them for their lack of expertise and knowledge.
Now Boutrous asked Segura for his thoughts on the deposition testimony.
Segura said it confirmed what he had previously believed: “That religion is the chief obstacle to the ability of gays and lesbians to make political progress.”
No other minority group has faced such unified opposition from religious organizations, Segura told the court. When African Americans were fighting for the
ir civil rights, virtually every denomination but the Southern Baptist Convention supported them. Gays and lesbians faced the inverse, with most of the major denominations arrayed against them.
“Biblical condemnation of homosexuality and the teaching that gays are morally inferior on a regular basis to a huge percentage of the public makes the political ground, the political opportunity, very hostile to gay interests,” he said. “It’s very difficult to overcome that.”
David Thompson’s cross-examination of Segura crisscrossed the American political landscape, searching for signs of political progress that could be turned into a legal negative.
Wasn’t it true that the number of openly gay elected officials had risen dramatically in the last eight years, from 257 to 445? he asked. Didn’t the fact that California’s domestic partnership law had passed over the objections of “biblical literalists” suggest that the church was not as powerful a force as Segura had suggested? What about the fact that gays and lesbians were never disenfranchised in the way that blacks and women were? And how was it possible to conclude that the group had no power in places like New Hampshire and Vermont, where gays and lesbians had legislatively won the right to marry?
Segura was prepared for this line of questioning. Though the Supreme Court had not spelled out exactly how political power should be calculated, it was the legal team’s view that “the test under the Constitution was not whether you lack power in a particular state,” Boutrous had told him during one prep session. Segura had nodded, telling Boutrous that during the 1940s there were towns run by blacks, but that did not mean that blacks had political power in the era of Jim Crow.
Now Segura told the court that he believed that the question of political power was a national one. Gays and lesbians might be able to marry in Vermont, but the federal government refused to recognize those marriages. Local electoral success needed to be judged in context, he said. The fact that a lesbian was elected mayor in Houston, for instance, was not a reflection of the power of lesbians but rather the racial politics of that city; Segura told Thompson that her sexuality was in fact an issue in the race but she won because she was white and her opponent was black. California might have domestic partnerships, but with the passage of Prop 8 voters had constitutionally established gays and lesbians as “second-class citizens.”
Afterward, Boies said he found Thompson’s style “perverse.” The opposing lawyer was making all the right points, good points like the fact that the Speaker of the California Assembly was an openly gay man, Boies said. But why not wait until he had his own friendly witness on the stand to dump all of that into the record? By raising these issues with the plaintiffs’ witness, Thompson was allowing Segura to put them in context and explain it all away.
Thompson had, for instance, found passages on the Web site of the Human Rights Campaign, in which the largest gay rights group in the country boasted of its political muscle. But when he asked Segura about them, the political scientist joked that “I’m beginning to think you are on their mailing list,” before adding that the explanation in his view was simple: HRC, as it is known, needs to raise money, and people historically don’t give to a group whose motto is, “Donate to us, we are unlikely to make a difference.” Thompson had gotten Segura to acknowledge that it was possible that some percentage of voters might have been motivated to pass Prop 8 out of a negative reaction to “activist judges,” but then given him the chance to explain why he did not think that was the primary driver.
And Thompson seemed to have annoyed the judge when he wandered into a blame-the-victim line of questioning that suggested that those involved with the “No on 8” campaign had squandered the goodwill of the voters by vandalizing property and boycotting businesses owned by their opponents. Since Thompson was “exploring the subject,” Judge Walker said he’d like to know a little more about the role that boycotts and similar tactics played in the civil rights fights of the 1960s.
“It’s difficult to imagine the civil rights movement in the 1950s and the 1960s without the Montgomery bus boycott or the boycott of white-owned businesses in certain southern towns,” Segura answered, adding that boycotts dated all the way back to the eighteenth century, when the women of Boston stopped drinking English tea. “So I would not group boycotts of businesses in with violence and intimidation.”
To the extent that there were isolated incidents of electoral intimidation during the Prop 8 campaign, Segura said, both sides engaged in it; Mayor Sanders, he noted, had told the court that his NO ON 8 sign had been vandalized.
But the most newsworthy moment came when Segura turned the tables on Thompson after the lawyer suggested that gays and lesbians could count on powerful allies, including the current occupant of the White House.
“President Obama, does he count as a political ally to the gay and lesbian community?” Thompson asked.
“No!” Rob Reiner said in a stage whisper. It was a frank assessment by one of Hollywood’s most important Democratic donors, and Segura was equally frank in his answer.
A dozen years before he became president of the United States, when Obama was running for the Illinois Senate from Chicago’s liberal Hyde Park enclave, he had signed a candidate questionnaire saying, “I favor legalizing same-sex marriage, and would fight efforts to prohibit such marriages.” That position had flipped, however, by the time he ran statewide for the U.S. Senate.
It wasn’t just that the president now said that he believed marriage should be between a man and a woman, Segura said. It was within the president’s power to sign an executive order repealing the policy banning gays and lesbians from openly serving in the military, yet despite a campaign pledge promising to end Don’t Ask, Don’t Tell, so far he had failed to do so. His promise to work with Congress to repeal DOMA had gone nowhere, which meant that spousal benefits given to married straight couples were still denied to their gay and lesbian counterparts. And while it was true that the president condemned employment discrimination against gays and lesbians, he had expended little capital pressing Congress to pass a federal law to ban it.
Obama was a “good speechmaker,” Segura told Thompson, but like many so-called allies of gays and lesbians, his “rhetoric far exceeds his actions.”
The headline on the San Jose Mercury News article summing of the day’s events read, EXPERT IN PROPOSITION 8 TRIAL: BARACK OBAMA UNRELIABLE ALLY OF GAY MARRIAGE MOVEMENT.
Chad, reading it out loud to the war room that evening, was not happy. The day the case was announced, he and Bruce Cohen had tag-teamed the president during a campaign fund-raiser that Chad had helped organize at the Beverly Hills Hilton, telling Obama that they hoped he could find his way to supporting the lawsuit. Chad wanted to create the political space for the president to come out in favor of same-sex marriage, and news coverage like this threatened to force him to dig in further.
Amanda Crumley knew how the White House worked; she was the one member of the war room besides Chad to have worked there. But there was no sense trying to spin what Segura had said, she advised Chad: “He speaketh the truth.”
Besides, they had other things to worry about.
Chad had made something of a study of how the religious right became such an effective force in American politics, once even scraping the Clinton sticker off his car and driving down to Lynchburg, Virginia, to listen to Jerry Falwell, the cofounder of the Moral Majority, preach at his megachurch.
The day’s testimony on the role that churches played in Prop 8’s passage had been powerful, but Chad worried, correctly, that opponents would try to spin it as an attack on the faithful. Yusef Robb, whose job it was to excerpt the best moments of the trial and push them out in a press release, said he would be as careful as the lawyers had been to emphasize that the day’s events showed only that “there was this vast, huge, political apparatus” arrayed against gays and lesbians. “We don’t have a bone to pick with religion,” he said.
&n
bsp; Meanwhile, the following day the Supreme Court was expected to hand down its decision in Olson’s blockbuster Citizens United v. Federal Election Commission case, challenging the ban on corporate spending in federal elections. The case had its genesis in the anti-Clinton documentary aired during the presidential primary by another of Olson’s clients, David Bossie, and was a reminder that whatever common ground Chad and Olson had found on same-sex marriage, they were politically far apart on nearly everything else.
“Ted Olson is going to single-handedly bring down the campaign finance system tomorrow,” Chad predicted, “a decision we all disagree with.”
True, but the upside was that “we can worm our way” into whatever interviews Olson would be giving on the subject, said Robb, and “politics aside, our fucking attorney just won another case.”
Yes, Chad mused. That ought to calm the naysayers in the gay rights community.
Less than twelve hours later, as predicted, a sharply divided Supreme Court ruled in Olson’s favor, striking down a key provision of the McCain-Feingold law aimed at curbing the influence of special interests in politics, and opening up a floodgate of money expected to disproportionately benefit Republicans.
“Congratulations, I guess,” Chad told Matt McGill as the two stood waiting for an elevator in the federal courthouse. McGill, who had worked closely with Olson on the case, did his best imitation of a Dr. Evil laugh and accent.
“Ha-ha-ha-ha! First, the political system. Next, the social fabric of America!”
NINETEEN
THE NAUGHTY BOY
The joke in the war room was that when David Boies removed his glasses, it was time to watch out. He would hold them in one hand near his jaw, then repeatedly plunge them toward the witness in a sharp downward motion that an assassin might use to stab someone in the heart.
