by Becker, Jo
The official position of ProtectMarriage.com on the judge’s sexuality was that “we are not going to say anything about that,” as Andy Pugno, the group’s general counsel, told the Chronicle. But surrogates like Ed Whelan, the former Scalia clerk, were questioning his impartiality, in scathing blog posts for National Review Online with titles like “Judge Walker’s Wild Witchhunt—Part 5” that criticized Walker for “scorched earth document and deposition discovery” orders and an “insane inquiry into the subjective intentions” of voters that threatened “severe damage to citizen participation in voter initiatives.” On that front, the war room got some indirect help from an unlikely source.
In an 8–1 decision in a case called Doe v. Reed, making public the names of petition signatories to a ballot initiative aimed at gutting Washington State’s domestic partner law, Justice Scalia effectively said that if people can’t stand the heat, they ought to get out of the kitchen.
“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed,” Scalia wrote in his concurrence. “For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.”
Other justices were put to different use. The team worked the phone, asking surrogates and opinion columnists to help bat down any suggestion that Judge Walker was biased because he was gay by putting it in historical context. Thurgood Marshall, the nation’s first black justice, took part in landmark civil rights decisions. No one would say that a black or woman judge was biased simply because of their gender or skin color, but it is “perfectly acceptable to say it about a gay person,” Kristina wrote in an e-mail. “It proves how discriminated against gays are,” she wrote. “At the end of the day this is an opportunity. We are back in the news and can go back to how strong our case is. They can’t win under oath so they have to resort to these things.”
The months since Walker’s outing had crawled by, with a mixed bag of news.
In Virginia, Republican governor Bob McDonnell issued an executive order reversing a policy supported by his two predecessors that had barred discrimination in the state workforce based on sexual orientation. And in the nation’s capital, Justice Stevens, the man Olson had believed would be helpful in swinging Justice Kennedy’s vote their way, had announced his retirement. Elena Kagan, President Obama’s solicitor general and pick to replace Stevens on the Court, had stated that “there is no federal constitutional right to same-sex marriage” in her Senate questionnaire.
That could be read in multiple ways, one being that the Supreme Court simply had not as yet declared any such right. Still, Terry Stewart found the answer, as well as the White House’s furious response to a post on CBS News’s Web site that published rumors that Kagan was gay, telling. The White House had forced CBS to take down the post after charging that it had become “enablers of people posting lies.” But true or false, Stewart said the language officials used to attack the post made it seem as though there could be no bigger slur than being called a lesbian. “It shows you where we are still at in our culture, especially at the federal level.”
Still, it did seem that something was stirring out there, a building sense of momentum. The District of Columbia became the first jurisdiction below the Mason-Dixon line to begin issuing marriage licenses to same-sex couples. Mexico City legalized same-sex marriage over the objections of the Catholic archdiocese. Laura Bush told CNN’s Larry King Live that she favored giving gay couples the same rights as straight couples.
On the legal front, a new study, the first to track children raised from birth to adolescence by lesbians, bolstered the case the plaintiffs had made at trial. Published in Pediatrics, it showed that the children of lesbians did just as well in terms of social development and adjustment as children of heterosexuals, and actually had more self-esteem and confidence, did better academically, and were less likely to have behavioral problems than kids with straight parents.
And an expert witness who had testified in a number of state court cases that homosexuality was a “perversion” and that gay couples should not be allowed to marry or adopt had been caught with a male prostitute hired from a Web site called RentBoy.com; George Rekers was not only a founding member of the Family Research Council, the Christian lobbying group that had been part of the coalition to pass Prop 8, but he also served on the board of NARTH, the gay conversion therapy outfit that Ryan Kendall had been forced to attend.
Closing arguments had come and gone two months earlier. The judge had given each side a little over two hours to make their final case in June, timing he said he found appropriate: “June is, after all, the month for weddings.”
Olson summarized the arguments the plaintiffs had been making throughout the trial, with a court stenographer AFER hired live-blogging it. But this time around he also took note of a Supreme Court case he had lost: United States v. Virginia, which struck down the Virginia Military Institute’s policy of excluding female cadets.
The case stood for two important propositions. The first was that the name one calls something and the prestige that it confers matter for the purpose of evaluating the constitutionality of separate but supposedly equal institutions. In the Proposition 8 case, Olson was arguing that the name, marriage, had a societal meaning that domestic partnerships could never equal. In its 1996 Virginia Military Institute opinion, the Court found that Virginia’s offer to form a women-only academy similar to the male-only Virginia Military Institute was an inadequate remedy, not only because the Court judged its proposed curriculum, funding, and faculty to be inferior, but also because the new academy would lack the prestige and stature that the name Virginia Military Institute conferred.
The second proposition the case stood for was that in cases where heightened scrutiny applies and the government must prove that a discriminatory law serves an important or compelling governmental purpose, the rationale it offers the Court must, as Justice Ginsburg wrote, be “genuine, not invented post hoc,” or after-the-fact, “in response to litigation.” The argument Olson made on behalf of the state of Virginia—that the state was interested in creating diverse educational opportunities—did not meet that test, the Court concluded.
Olson had at the time criticized that opinion, calling Justice Scalia’s dissent “one of the most elegant and moving opinions I have ever read.” But he didn’t hesitate to use the decision in service of this cause. Cooper’s deinstitutionalization theory—“whatever in the world that is”—was exactly the kind of post hoc rationalization that the Virginia Military Institute case had made clear was prohibited, Olson charged in his closing argument, and one need only look at what the proponents in Proposition 8 put into the hands of voters to see that.
“‘Protect our children’ from learning that gay marriage is okay. Those are the words that the proponents put in the ballot—in the voter information guide that was given to every voter. That was not a very subtle theme that there is something wrong, sinister, or unusual about gays, that gays and their relationship are not okay, and decidedly not suitable for children,” he said.
“For obvious reasons, the ‘gays are not okay’ message was largely abandoned during the trial in favor of the procreation and deinstitutionalization themes. And after promising proof that people might stop marrying and cease procreating if Proposition 8 were overturned, the proponents switched course from that as well, and affirmatively argued that they actually had no idea and certainly no evidence that any of their prognostications would come to pass if Proposition 8 were to be enacted.”
Cooper, when he rose, noted that demographers in the 1930s failed to predict the baby boom, while sociologists in the 1960s failed to forecast the upcoming rise in the number of couples living together outside of marriage. Those were two “extraordinary sociologica
l phenomenon,” he said, that “no one had a clue was coming.” And he used the “no one predicts the future that accurately” quote from Professor Cott’s testimony to argue that a “change as profound as this one” would have unpredictable consequences. “The plaintiffs think that the consequences dominantly will be good consequences,” he said. “And again, we respect that point of view, but it’s not something that they can possibly prove.”
Chad’s favorite moment came when Cooper inadvertently paid him a huge compliment by revisiting his infamous “I don’t know” answer. “I have heard this and read this more than any three things, three words, that I have ever spoken, ‘I don’t know,’” Cooper said. “I don’t know how many times, Your Honor, I had wished I could have those words back. Because, Your Honor, whatever your question is, I damn sure know, whatever it is!”
“I had this moment of yes!” Chad said afterward. “If you are feeling the pain now, just wait. This drumbeat isn’t going to stop.”
But for the most part, it had been Judge Walker’s show. The questions he posed to both Olson and Cooper offered a window into his thinking. He seemed skeptical of the evidence that Cooper had put on to prove his point that allowing same-sex couples to wed could damage an institution whose primary purpose was to channel responsible procreation.
“Why only one witness?” the judge asked, before adding, “And I think it fair to say that his testimony was equivocal in some respects.”
When Cooper replied that the witness and, implicitly, the trial itself were “utterly unnecessary” to prove what to him seemed obvious, the judge did not disguise his dissatisfaction: “This goes back to the you don’t need any evidence point.”
On the other hand, Walker told Olson to assume the rational basis standard applied, and assume that voters had a genuine belief that children do best when raised by their biological parents, or that heterosexual marriage would somehow be harmed by allowing gays and lesbians to wed. Even if science says that is not so, is that good enough to pass constitutional muster, as long as voters could have reasonably believed that to be the case at the time of enactment? Didn’t the Supreme Court, in a 1981 equal protection case called Minnesota vs. Clover Leaf Creamery Company, effectively say the rational basis standard is so deferential that “any debatable” state interest will suffice?
“Well, it has to be a debatable proposition,” Olson said. Cooper, the “proponents’ counsel, said it came down to this: ‘Same-sex marriage is simply too novel an experiment to allow for any firm conclusions about its long-term effect on societal interests. They just don’t know.’ That is the essence of the case as it comes to the end of the trial and to the closing arguments. They just don’t know whether same-sex marriage will harm the institution of heterosexual marriage.
“And I submit that the overwhelming evidence in this case proves that we do know. And the fact is that allowing persons to marry someone of the same sex will not, in the slightest, deter heterosexuals from marrying, from staying married, or from having babies. In fact, the evidence was from the experts that eliminating invidious restrictions on marriage strengthens the institution of marriage for both heterosexual and homosexual persons and their children.”
“Very well,” Judge Walker said after both sides were finished. “The matter is submitted.”
And then, silence. June became July, and still no decision. Everyone took to obsessively checking their e-mail. Any word yet? Olson would ask Boutrous. Chad refused to get on an airplane to anyplace other than San Francisco. “I feel like a doctor waiting for our baby to be born,” Enrique Monagas said.
The AFER team tried to put the downtime to use. Chad and Olson worked together to expand the team’s bipartisan brand, convincing two heavy-hitting Washington insiders from opposite sides of the aisle to cochair AFER’s advisory board. John Podesta, the founder of the progressive Center for American Progress, and Robert A. Levy, the chairman of the right-leaning Cato Institute, had announced the news in a joint op-ed in the Washington Post: “We have come together in a non-partisan fashion because the principle of equality before the law transcends the left-right divide and cuts to the core of our nation’s character. This is not about politics; it’s about an indispensable right vested in all Americans.”
A major Hollywood fund-raiser was in the works. Olson’s and Boies’s legal fees didn’t include expenses. The trial had been costly, with experts to fly in and pay and a legal army to put up and feed. By the time it was done, AFER had incurred more than $1 million in unexpected costs. Ron Burkle, the billionaire friend of the Clintons who had helped Chad and Kristina with the seed money, had agreed to open up his storied mansion, but they needed an A-list act to draw a red-carpet crowd that would not only replenish the coffers but also generate headlines.
Chad called Bruce Cohen, who had recently been named coproducer of the eighty-third Academy Awards show, to toss around ideas. Could Rob Reiner ask Lady Gaga? No, Cohen said: Rob was no longer represented by William Morris, Gaga’s talent agency, so he had no in. (Eventually, Michele Reiner would suggest Elton John. The singer, lambasted by liberal fans for performing at the wedding of conservative talk show host Rush Limbaugh, readily agreed.)
Celebrities have huge online followings, and Chad also worked his contacts to build out the team’s social media presence prior to the decision. When Alicia Keys, a client, agreed to his request to tweet about the case, it generated four thousand individual visits to AFER’s Facebook page. AFER’s fan base, measured in Facebook “likes,” climbed from ten thousand to eighteen thousand in the space of a week.
Managing the politics of decision day, win or lose, required advance work. Walker’s decision would land in the middle of a hotly contested governor’s race. California attorney general Jerry Brown, already firmly on their side, was running on the Democratic ticket. Meg Whitman, the president and CEO of Hewlett-Packard, was the Republican nominee. Kristina had dated Mike Murphy, the Republican political strategist running her campaign, and she called him shortly before Whitman locked up the GOP primary. Would he take a confidential call from Chad?
“He said that her public position is that she supports Prop 8,” Chad said, relaying the conversation to Kristina afterward. “I said, ‘Look, from what I hear her public position isn’t the same as her private. Our hope is that we can work with you on messaging and maybe she can moderate her position.’ He said, ‘We’re not looking for controversy.’”
The Prop 8 fight had been a close one, and Murphy understood that many Californians, whose votes Whitman might need to win in the general election, backed the right of gays and lesbians to marry. “Her position is her position,” he recalled telling Chad. “But Meg has friends on both sides of this issue. Tonally, we will be respectful, and we are not going to make it a centerpiece of the campaign.”
Knowing that friends can sometimes be a campaign’s worst enemy, Chad did what he could to impose message and image discipline in the gay community. The AFER team reached out to the Los Angeles Police Department to talk about crowd management strategy should Walker uphold Prop 8 and massive protests erupt. “We want to be sure that the images that come out of California are appropriate and help us win hearts and minds,” Chad said.
He also held a conference call with thirty gay rights groups, many of whom had been outspoken opponents of the lawsuit, and met personally with community organizers in California to share AFER’s talking points. Minutes from a June 24 meeting Chad attended at San Francisco’s LGBT Center summed up some of the dos and don’ts:
In the event of a victory, be graceful winners: “Fairness has prevailed (NOT ‘We Won, ha ha!’).” Stress that the case was not about new rights: “To some people, change is scary, but it has been an enduring American tradition to extend civil rights to all people, and today is just another example of that tradition.” And in the event of a loss, share stories of how discrimination against gays and lesbians affects families and kids in
their everyday life. Ask, “How would you feel if you could not marry the person you love?”
Judge Walker’s plan was to release his opinion to the public sometime between 1 P.M. and 3 P.M. Pacific time. He had sent word that he would give the lawyers and the parties in the case an advance copy at 11 A.M., but they were under strict orders to share it with no one else.
In Washington, Cooper had resigned himself to a loss. The night before, he had taken the extraordinary step of filing for an emergency stay preventing marriages from resuming while he appealed a ruling that Judge Walker had yet to hand down.
In San Francisco, David Boies and Ted Boutrous swapped stories about their latest cases while they waited. Olson arrived at 10:40 and joined them in a corner conference room overlooking the bay. His wife, Lady, sat down with the plaintiffs and Michele Reiner in an adjacent room. Olson had been episodically irritable the night before, which was how she could tell he was nervous.
“It’ll be good either way,” Michele said.
“Yeah, but it’ll be better when we win,” Sandy, dressed in pink again, replied. “Winning is better than losing.”
The 11 A.M. deadline passed with no word from Walker. To pass the time, Michele took pictures of everyone with a new iPhone camera “fat” app that makes people look as though they have packed on the pounds:
“It’s so cruel, this thing.”
Snap, snap.
“It’s pretty funny.”
Boies, briefly emerging from the lawyers’ conference room for a soda, was at a loss to explain the delay. “I think the son of a bitch is still editing the opinion,” he said. “Going over it one final time.”
And then, with no warning, bang, in it came. At 12:26 P.M. the lawyers told Chad to gather the plaintiffs. Mindful of the judge’s order to keep the advance copy under wraps, everyone else was ordered out of the lawyers’ conference room, “spouses, everyone but the lawyers and the clients,” Ted Boutrous said before closing the thick wooden door firmly behind him.
