by Becker, Jo
“Mr. Blankenhorn, how confident are you that redefining marriage to include same-sex marriage, same-sex couples, would further the deinstitutionalization of marriage?”
“It’s impossible to be completely sure about a prediction of future events,” Blankenhorn answered. “But . . . if you change the definition of the thing, it’s hard to imagine how it could have no impact on the thing.”
Blankenhorn had studied Boies during his cross-examination of the defense’s previous witness, Kenneth Miller. He admired the way he always seemed to be reassessing the situation, searching in an unscripted way for a genuinely human interaction. But Blankenhorn was determined not to fall for the lawyer’s traps, and particularly not to be forced into giving the type of simplistic “yes, no, or I don’t know” answers the lawyer demanded to questions he considered to be far more complex. “I wasn’t going to be bullied by him or anyone into choosing three words,” he said later.
The result was a confrontation that at times saw the two men shouting over one another, and the judge growing so exasperated by Blankenhorn’s repeated attempts to reframe Boies’s questions into ones more to his liking that at one point he said, “That’s how it works. There’s a question, and there’s an answer.”
In one representative exchange, first Boies, then Walker pressed Blankenhorn to say whether the long list of academics he had reeled off during his direct testimony actually agreed with him that allowing same-sex couples to marry would lower the rate of heterosexual marriage. “He is giving you three choices, ‘yes, no, or I don’t know,’” Judge Walker told Blankenhorn.
Repeated queries finally yielded this: “I do not have sure knowledge that in the exact form of words you are asking me for they have made the direct assertion that permitting same-sex marriage would directly lower the marriage rate among heterosexuals.”
Boies treated Blankenhorn with deliberate disdain, his tone alternatively sneering and bullying, “like an abusive parent,” Yusef Robb said. He repeatedly mispronounced the witness’s name, as if to say he could not be bothered with someone of his caliber, and neither should the court.
“Mr. Blankenthorn,” Boies would say.
“Horn!” the witness would protest. (Rob Reiner joked that either version sounded like a character out of a Groucho Marx movie.)
Boies even offered the witness a “gold star” when he managed a simple, declarative answer. It got so bad that Blankenhorn at one point complained that Boies was making fun of him.
“I don’t think he’s laughing at you,” Judge Walker said. “He’s amused at the back-and-forth. As I think many of us who are observing this are.”
By defining marriage as a union between a man and a woman and then arguing that allowing gays and lesbians to marry would deinstitutionalize it, Olson felt Cooper was playing a tautological game, like saying that the right to vote was deinstitutionalized when women were allowed into polling booths. He wanted Boies to deconstruct it by getting the witness to make concessions drawn directly from the Supreme Court’s prior marriage rulings that he could then use on appeal.
“Pull him back—get him to say that marriage is a fundamental right,” said Boutrous, conveying Olson’s wishes during one prep session. “And on deinstitutionalization, Ted was thinking, when blacks and whites were allowed to marry, did that deinstitutionalize marriage? How about when prisoners were allowed to marry?”
Boies agreed with Olson. “They are saying you shouldn’t make any change until you’ve had time to see whether there is any impact, but if everybody took their position then there would never be any change to study.”
But Blankenhorn’s stubborn evasiveness—“Your Honor, Your Honor, he keeps doing this!” Boies protested at one point—prevented the lawyer from eliciting some of the concessions that Olson most wanted.
Still, over the course of the cross-examination, Boies forced Blankenhorn to acknowledge that marriage “evolves over time,” is a “public good,” and that to the extent it was being deinstitutionalized, that was a phenomenon attributable to heterosexuals, not gays and lesbians. Blankenhorn also conceded that, notwithstanding his testimony about “kin altruism” and the superiority of the genetically related family, studies showed that adoptive parents can actually outstrip biological parents in providing for their children because of the rigorous screening process they undergo.
But the moment that Boies would crow about for years to come, the moment in which he confronted Blankenhorn with words from his own book, words about how allowing gays and lesbians to marry would be a “victory for the worthy ideas of tolerance and inclusion,” was not quite the gotcha moment that it seemed.
In fact, as incredible as it might have seemed to Boies and Olson, it was Cooper’s entire reason for putting Blankenhorn on the stand.
If Cooper could have, he would have called the president of the United States. He was betting the case on the proposition that in a rational-basis world, “if I can point to a single nonbigoted person favoring Proposition 8, I have to win.”
“So, Exhibit A was Barack Obama,” he later explained. “And Exhibit B was David Blankenhorn.”
Cooper had known all along that Judge Walker was gay. When David Thompson first approached Blankenhorn about testifying, he told him about the judge’s sexual orientation. “The impression he conveyed to me was that it was widely believed that he was gay but he hadn’t ever publicly said so,” Blankenhorn recalled. “He also told me that they were under no illusion that they would win in Judge Walker’s courtroom.”
But with the case headed for the Supreme Court, it was critical to Cooper that the expert called by Proposition 8’s defenders have nuanced views about gay people. “Olson and Boies want to make this about being homophobic,” Blankenhorn recalled Thompson saying. “We’re going with you because we think on the whole you’ll be more credible for us. You’re not a cartoonish figure, and your views aren’t easily pigeonholed.”
Cooper had a team of volunteers from a Utah law firm go over everything that Blankenhorn had ever written or said. Boiled down, his take was that while there were plenty of very good reasons to be for gay marriage, there were more important reasons to oppose it. Cooper had read every word of it.
So Blankenhorn said he had to laugh when Boies began throwing quote after quote from his book at him, “cleverly, manipulatively using what I wrote as some sort of victory dance.
“It wasn’t like he caught me in some big, ‘oh my gosh’ thing,” Blakenhorn said.
Indeed, Boies overlooked the piece of evidence that actually did worry Cooper, he said: a video clip in which Blankenhorn had declared that domestic partnerships relegated gays and lesbians to back-of-the-bus status.
“You’re a helluva good witness,” Blankenhorn said Cooper told him at the end of the first day. “And I thought, ‘Gee, Chuck, I kinda agree.’”
But from where Olson was sitting, it did not seem that way at all. “Prop 8 Case Heads to End with Defendants’ Own Witnesses Making Plaintiffs’ Case,” read the press release the AFER war room sent out that night, followed by a list of “Blankenhorn Admissions” cherry-picked in conjunction with the legal team.
“Homophobia is a real presence in our society,” the witness had told the court. Permitting gays and lesbians to marry would “signify greater social acceptance of homosexual love, and the worth and validity of same-sex intimate relationships.” That “might contribute over time to a decline in antigay prejudice, as well as, more specifically, a reduction in antigay hate crimes.” Gay marriage would also “extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children.” Not only would it contribute to “longer-lasting relationships,” but also more economic stability. It would also “probably reduce the proportion of homosexuals who marry persons of the opposite sex, and thus would likely reduce instances of marital unhappiness and divorce.” And “by increasing the number of married c
ouples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more growing up in loving adoptive and foster families.”
And this jaw-dropper: “I believe today that the principle of equal human dignity must apply to gay and lesbian persons. Insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were on the day before.”
“You wrote those words, did you not, sir?” Boies asked. “And you believed them then, correct?
“That’s correct.”
“And you believe them now, correct?”
“That’s correct.”
Years later, Cooper had no regrets about Blankenhorn’s testimony. “Everything he wrote, it makes my point,” he said. But underscoring just how differently the two men saw the law, Olson simply could not discern the method to his opponent’s madness, then or later.
How could it be rational to toss aside all the good that Blankenhorn had just outlined, simply because of some unproven fear of deinstitutionalization? From Olson’s perspective, it was the perfect ending to the trial, showing just how indefensible the kind of arguments that might work in a campaign are when they must be defended in court. Shaking Boies’s hand outside on the steps, Olson was positively gleeful.
“God, their witnesses were so awful!”
“This is too easy,” Boutrous said.
“I know,” Boies answered.
The following day, on the afternoon of January 27, Chad and Kristina packed up the war room and headed their separate ways. Their firm’s paying clients were clamoring for attention, and Chad needed to take care of business in Los Angeles while she tended to First Lady Maria Shriver in Sacramento.
After the intensity of the last two weeks, the abruptness of the ending was jarring. Walker had decided to put off closing arguments indefinitely, both to give himself time to study the record first and because he had granted a request by Cooper that he be allowed to root through the sort of “No on Prop 8” campaign material that his clients had been forced to turn over. So there was no satisfactory summation of what had transpired, no real denouement, just a lovely speech from the judge in which he shook hands with all the lawyers and thanked them for a job well done. “Congratulations to the lawyers in the case for, obviously, a fascinating case,” he told them. “Extremely well presented on both sides.”
Kristina was heading straight to the Sundance Film Festival from the state Capitol, and wasn’t going to see Chad for a few weeks. Like election day after a hard-fought campaign, there was little else to do but wait for the verdict.
“I guess I’ll see you later,” she told Chad.
She was running late for a meeting with the first lady’s staff. But instead of heading straight for the Capitol, she found herself in Nordstrom, buying a pair of high heels. It was the only thing she could think to do that would make her feel better. Chad felt equally strange and unsettled. When Kristina arrived in Sacramento, there was an e-mail from him. “That was that ,” was all it said.
The night before, a number of the younger Gibson Dunn lawyers had joined the plaintiffs and the war room team for a party at a nearby restaurant, followed by some karaoke. Everyone had been in high spirits. Matt McGill surprised everyone by rocking a version of Bruce Springsteen’s “Thunder Road” to get the group started. Enrique Monagas was next, then he and McGill teamed with Adam Umhoefer and got into a Journey face-off with some random people at the bar. As the drinks flowed, “Name Your Favorite Blankenhorn Quote” became something of a parlor game. Hands down, it was when he said that allowing gays and lesbians to marry would benefit their children. “Check please!” Jeff said.
“Twenty years from now,” Adam said, “people will look back at what happened in that courtroom as a turning point.”
Chad, though, had quietly sat apart, dreamily holding up his iPhone and snapping pictures. Photography was his passion. “I can disappear and be in another world, be an observer of life,” he explained one afternoon. “As a kid, my mom would say, ‘Go play with the other kids.’ But I liked to watch and listen to the adults. To take a picture—it freezes that one moment.”
Chad knew enough to want to capture this one, could sense its historic implications, but his subconscious wouldn’t allow him to reflect on his own role in choreographing it. Some part of him would always be the closeted gay guy from Arkansas, deflecting attention onto others, lest someone find out his secret.
“He doesn’t think of himself as a player,” Kristina said. “I think he always just thinks, ‘It’s a war and we’re foot soldiers in the thick of the fight.’ I can’t imagine Chad sitting in Washington, D.C., in an office being the leader of some gay rights group. He likes to be in the trenches, fighting.”
When Chad awoke the following morning, his camera roll contained images of everyone but himself.
TWENTY-FOUR
VICTORY
The e-mail went out at 4:12 P.M. Pacific time on August 3, 2010: “It’s happening!” Six months after the trial ended, Judge Walker planned to issue his decision the following day.
David Boies was already in California, taking a deposition in his latest blockbuster case, an ugly divorce with $130 million and the ownership of the Los Angeles Dodgers on the line. Ted Boutrous, when he got word, had just picked up a pair of diamond chandelier earrings for his wife’s birthday and the fixings for a dinner party he was throwing her that night.
He and Olson began e-mailing like crazy. But they could see no way that Olson, given the time difference and the remoteness of his Wisconsin lakeside home where he was vacationing, could catch a commercial flight to San Francisco and be there in time for the decision. Boutrous rushed back to his home in Brentwood, turned over the barbecuing to his brother-in-law, and called AFER. Within an hour, a private plane had been chartered to pick Olson up.
In Los Angeles, Chad, Kristina, and the rest of the war room threw their things in bags and jumped on shuttle flights to San Francisco. Adam Umhoefer told everyone he had recently dreamed about Judge Walker.
“Are you sure this is for public consumption?” Chad joked.
Adam gave him a “very funny” look before describing the dream. The entire team arrives at the federal courthouse, where they are directed to an entrance that does not actually exist in reality. When they walk in, what they find is an amphitheater with flowing red curtains. Ushers take them to their seats. A voice booms, “I now present Judge Walker.” The curtain rises and out walks Walker, dressed in a tux, as a symphony starts playing and a gospel choir sings “God Bless America.”
“There’s a lot going on there,” Chad said with a laugh. “We have to analyze!”
Chad was not a superstitious person. But now, alone in his hotel room, even he started to believe that maybe the universe was trying to tell them something. Earlier, he and Adam had walked through the Martin Luther King Jr. Memorial in San Francisco. More than a hundred thousands gallons of water flow over a sharply angled fountain before dropping twenty feet, echoing off the Sierra granite, and traveling through a wishing well channel to a moat where the water becomes still as glass. “No, no, we are not satisfied, and we will not be satisfied until justice rolls like water and righteousness like a mighty stream,” reads the King quote inscribed at the west entrance.
When he opened his curtains, Chad was surprised to see the entire vista lit up beneath his window.
Much had happened, in people’s lives and the world around them, since everyone had split up in January.
Olson and Boies had made the Time 100 list of most influential people, along with pop diva Lady Gaga. “Madonna has to be jealous. Congrats!” Chad e-mailed. Chad, for his part, had been named to the Advocate’s 40 under 40 list of young movers and shakers in the gay community, a sign that the success of the trial was starting to bring the establishment around. Th
e movie theater chain that employed Jeff had named him general manager of the year. Rob Reiner’s latest film, a sweet coming-of-age tale called Flipped, was about to be released.
But the biggest news concerned the man who now held all of their fates in his hands. Less than two weeks after the trial had ended, Judge Walker had been outed by the San Francisco Chronicle.
Chad and Kristina knew it was coming because the writer had called in an unsuccessful attempt to get them to comment. Both wished it had held until after the ruling, but what was done was done. Kristina summed up the going-forward strategy in an e-mail:
“All that matters is focusing on ensuring that this doesn’t improperly [taint] the ruling coverage and remembering that our key audience is actually a very small group in DC,” she wrote. “Important that we are never on the record and that we don’t engage the gay groups—most credible people on this are conservatives and legal voices.”
The opposition researcher AFER had hired pulled every editorial and article written after Walker was nominated saying he was too conservative, as well as quotes from all the gay groups that had opposed his nomination. A public records request to the Reagan Library had yielded gold: Former attorney general Meese, who had penned the op-ed in the New York Times slamming Walker, had recommended that he be put on the bench. The late Strom Thurmond, the long-serving Republican senator of South Carolina known for his early segregationist campaigns and his vehement opposition to the Civil Rights Act, had shepherded Walker through his nomination. The war room put all of it together in a package it provided to reporters on background.
Pete Wilson, former Republican governor of California, had been Walker’s chief sponsor when he served in the U.S. Senate. Kristina, who knew his former chief of staff, put in a call. Could the governor talk Walker up on background calls with reporters, she asked, or at least not join the chorus of voices criticizing him? Remember, she recalled telling her friend, this reflects on him as well: “Pete put him there.”
