by Becker, Jo
Chad, Kristina, Michele, and Adam stood just on the other side, straining to hear what was being said. “Somebody’s weeping,” Adam said. “I can’t tell if it’s happy or sad!” He held his hand up for everyone to see. “Shaking.” Chad tried pressing his ear against the door before Boutrous finally took pity, sending him an e-mail at 12:31 P.M.: “You can come in, but only you.”
Finally, the door opened wide and everyone emerged. “If we can all go into one room,” Chad said.
Boies was hugging Lady. Paul was crying, talking about how Boutrous had told him he could not say much but that he could say, “I’m happy.” He ripped up a copy of the statement he would have given had they lost, so it was clear that the news was good.
But how good? Not knowing the details was driving Michele Reiner nuts. By this point, everyone had become a student of the case. What level of scrutiny applied? Was it a due process or equal protection decision? Was his decision California-specific, or nationwide?
“This is kind of anticlimactic,” she complained, begging for some specifics. “Come on!”
“You’ll have to wait to climax,” Boutrous joked.
Paul cracked up. “Said like a man.”
Across the city, Judge Walker was in his chambers, already at work on another case. He had just handed the gay community—a community that had vigorously fought his nomination to the bench more than two decades earlier—a sweeping and historic victory. For the first time, a federal court had held that the right to marry is a fundamental right that must be extended to gays and lesbians, a rationale that if upheld would mean that all fifty states must recognize same-sex marriage.
The plaintiffs won on every count. Laws targeting gays and lesbians should be subject to heightened scrutiny, the judge had ruled, because the evidence showed that sexual orientation was not readily changeable and that gays and lesbians faced historic and ongoing discrimination and were not powerful enough to fend off majoritarian disapproval. But in this case, he had written, that was not even necessary because Proposition 8 failed even the rational basis test. For no good reason, he found, “it places the force of the law behind stigmas against gays and lesbians.”
As was his habit in controversial cases, Judge Walker and one of his clerks had swapped the opinion back and forth numerous times. Before signing off, he had organized sessions in which his clerks read it aloud. “We did that three or four times. You’d be surprised at what comes up when you do that,” he said, recalling the process afterwards. “The case was so prominent that you didn’t want to dash it off.”
Grounded in the Constitution’s right both to due process and equal protection, the 136-page opinion rested not only on the law but also on forceful factual findings drawn from the trial record.
“Marriage,” Walker wrote, “is the state recognition of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” He quoted liberally from the Supreme Court’s own precedents, as when he said that while “the Constitution cannot control [private biases], neither can it tolerate them.
“In the absence of a rational basis, what remains of the proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite sex couples,” Walker wrote. “Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.”
Throughout the trial, the judge had puzzled over why Cooper was not mounting a more robust defense of Proposition 8. It puzzled him still. The plaintiffs had called seventeen witnesses. He still couldn’t get over the fact that Cooper had called only two.
Walker had, for instance, expected Cooper to put the proponents on the stand. Maybe even some Catholic bishops or religious leaders. Certainly someone who could offer a better explanation of the campaign’s motives than, as he put it, the “pathetic” Dr. Tam, and a more plausible rationale for how the ban served the purposes of the state than the “hapless Blankenhorn.”
“Chuck spent most of the trial looking like he’d rather be anywhere else,” Walker said. “He could have put on historians. Instead he quoted philosophers. The problem he had is there is not secular evidence to support his position.”
Back at Gibson Dunn, Chad, suddenly realizing that he had not yet hugged Kristina, went looking for his best friend. She was in the war room, helping Adam oversee the press rollout. He couldn’t imagine doing this case without her. She was the most determined person he knew, calm and cool when he got excited. He avoided issues he didn’t want to address; she confronted them.
“We made all these decisions together,” he said. “I joke with her, ‘You do know that you’re going to have to spend the rest of your life coming out as a straight person.’”
In the lawyers’ conference room, everyone was reading aloud their favorite passages from the opinion. Walker had dissected each of Cooper’s arguments. Olson loved that the judge picked up on his citation of Williams v. Illinois, a 1970 Supreme Court ruling that found that the “antiquity of a practice” cannot insulate it from constitutional attack, to rebut Cooper’s argument that marriage had always been between a man and a woman.
“It’s Ted’s favorite quote of all time,” Boutrous said. “He’s probably cited it in twenty different briefs over the years.”
Matt McGill was happy to see that the judge cited a Supreme Court case that had been handed down six days earlier, called Christian Legal Society v. Martinez. The 5–4 decision, in which swing voter Justice Kennedy joined the liberal justices in an opinion written by Justice Ginsburg, upheld the right of a public law school to refuse to recognize a Christian student group that excluded gay students. It was a First Amendment speech case that, in and of itself, had nothing to do with marriage.
But on the day it was handed down, McGill’s wife, Lori Alvino McGill, a former Ginsburg clerk, had spotted a line in the opinion that she thought could be applicable to the Prop 8 case. The justices rejected the argument by the Christian group that it was not discriminating on the basis of sexual orientation, but was merely excluding gays and lesbians because they refused to acknowledge that their conduct was wrong. “Our decisions have declined to distinguish between status and conduct in this context,” Ginsburg wrote.
McGill’s wife was overdue to give birth to their second child, and the two were walking around their neighborhood later that evening in the hope of inducing labor when McGill jumped on his cell phone to explain the significance to the AFER team. The Court, for the first time, had identified homosexuality as a status, a characteristic like race, gender, or heritage. Laws or, in this case, policies that treat gays and lesbians differently, the justices seemed to be saying, target them not based on what they do but who they are. That had substantial implications for the Proposition 8 case, potentially increasing the likelihood that the Court would apply some form of heightened scrutiny to laws that discriminate on that basis.
The lawyers immediately fired off a letter bringing the case to the judge’s attention. Walker cited it in finding that “homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian.”
Boutrous was struck by the judge’s analysis that bans on same-sex marriage discriminated not just on the basis of sexual orientation but also on the basis of gender. His ruling effectively said that the reason that Jane cannot marry Jill is because Jane is a woman, an inarguably immutable characteristic. It was not an argument that had featured heavily in their briefs, but if upheld it would automatically subject all bans to heightened scrutiny, without the need for the c
ourt to create a new suspect class.
Boies was gratified to see that the judge had granted his motion to disqualify Blankenhorn, though he joked that he should have withdrawn it given how helpful the witness had turned out to be for the plaintiffs. Blankenhorn’s opinions were “not supported by reliable evidence or methodology,” the judge wrote, and therefore “entitled to essentially no weight.”
The gay lawyers on the Gibson Dunn team were just gratified. Sarah Piepmeier had sent the opinion to Enrique Monagas, who was in Puerto Rico for the funeral of his grandmother. The subject line was a smiley face.
“I yelled, I screamed I was so excited,” Monagas said. “I thought about my daughter, who is named after my grandmother. I thought, ‘Whatever happens in your life, you’ve made a difference.’”
At 2:04 P.M., Judge Walker’s decision was posted on PACER, a service that provides online access to federal court records nationwide. Kristina popped out to tell Michele that she could finally call Rob, who everyone knew could not have kept the secret. He was in Hollywood, promoting his new movie, and when Michele reached him he was sitting at the same table at the Polo Lounge where it had all begun.
He started whooping. “Great news!” he told Saturday Night Live producer Lorne Michaels, who was at the next table. “Congratulations!” Michaels exclaimed.
In her office at San Francisco City Hall, Terry Stewart found it difficult to feel anything at all. She was happy, but she had been down this road before, winning, only to see it snatched away.
Lance Black was at Bruce Cohen’s house in Los Angeles, glued to CNN, when the news broke. As the reporter began reading from the opinion, the two men started crying and hugging. Cohen then called his husband, Gabe, who was in New York. His assessment: “It’s like a love letter to the Supreme Court. And a dare.”
Over the television, Maggie Gallagher, of the National Organization for Marriage, and Freedom to Marry’s Evan Wolfson, who not so long ago had been berating Black at the OutGiving conference, debated the ruling. Wolfson praised the decision, though he warned supporters not to get too excited. “We’ll have to see what the Supreme Court does,” he said. “There are many twists ahead.”
Cohen realized just how big the decision was when CNN cut to a live shot of Chad speaking at a press conference in San Francisco. He had thought he would have to go to some obscure Web site to find that.
“Today’s decision gives gay Americans the hope and strength and comfort that they too can have a future filled with love, commitment, and shared responsibility,” Chad said, managing not to choke up the way he had when he practiced the speech with Kristina. “Today we begin the process of saying to the millions of people who are made to feel ostracized, besieged, bullied, and ashamed of how God made them, ‘Be who you are. Love who you love, and marry who you wish to marry.’”
Back in San Francisco, two small private planes sat on the airport tarmac, waiting to ferry the plaintiffs and most of the legal team to Los Angeles, California’s biggest media market. The plan was to hold a rally in West Hollywood, near where protesters had gathered following Proposition 8’s passage, in time for the nightly news.
Chad, in his usual plan-for-the-worst mode, had insisted on splitting up the team in case one plane fell from the sky. His mind had already skipped ahead to the next phase of the case.
The Ninth Circuit Court of Appeals was still considered the most reliably liberal in the country, but in recent years it had become decidedly less so. President George W. Bush had appointed seven of the court’s twenty-seven active members during his tenure. A randomly selected panel of three judges would hear the Prop 8 case. Everything would depend on the draw.
Kristina, checking her e-mail, saw the reaction statement Meg Whitman’s campaign had released and smiled. It was a bland nothing-burger, better than she could have hoped. “Today’s ruling is the first step in a process that will continue,” the candidate said.
In West Hollywood, Rob Reiner was waiting when their bus pulled up to the rally. He engulfed Chad in a bear hug, the way a father would his son.
“That speech—I was so proud,” he said.
Amanda Crumley had hired an advance team, political veterans she knew from the Clinton administration, to deck out the West Hollywood stage with American flags. Bruce Springsteen’s “Born in the USA” was booming out of speakers, making the event feel like a campaign rally. (The Clinton playlist, she joked, is a small one.)
The crowd went wild when Olson, their conservative champion, took the stage. He and Boies lingered behind long after Chad and the plaintiffs stepped down, working the rope line like rock stars, shaking outstretched hands and reaching out to touch the shoulders of people farther back.
“They’re on a roll,” Kristina said to Matt McGill.
He laughed. “Like they’re running for gay Congress.”
Chad, looking back on the day later, didn’t remember much except the sound of news helicopters overhead and the brightness of the lights. Squinting out at the crowd through his glasses, he saw that people were openly crying, and that’s when it hit him.
“Oh my God—Prop 8 is unconstitutional. That’s why all these people are here.”
TWENTY-FIVE
A TRUMP CARD, RELUCTANTLY PLAYED
Watching Ted Olson craft his arguments for an appellate court was a lot like watching a world-class bridge player. Olson loved the card game, and over drinks one night, David Boies compared him to Charles Goren, one of its all-time champions.
“At tournaments, people can sit behind someone and watch as long as they don’t talk. And so at the end of the game, a woman says to Goren, ‘You didn’t make a single play all night I couldn’t have made.’ He said something like, ‘That’s probably right. But could you have made all of them with the consistency that I did?’ That is what Ted does.”
Boies knew better than most. In the Bush v. Gore case that had pitted the two men against one another, Olson had made one deft play after the next. He focused on the Supreme Court, arguing that the recount in deadlocked Florida was unconstitutional on numerous grounds. Another team prepared a pragmatic set of pleadings in the event that the justices declined to step in and stop it, aimed at ensuring that ballots likely to favor Bush were counted and those likely to favor Gore were thrown out. A third group of lawyers that included Chief Justice John Roberts, who was in private practice at the time, did the legal spadework on a plan to have the Florida Legislature declare Bush the president regardless of the recount outcome.
It was a scorched-earth litigation model designed to produce a Bush win under almost any scenario. And it was one that Olson replicated in his multipronged approach to tearing down Proposition 8, as the case moved into its next phase at the Ninth Circuit.
The court could rule in his favor on due process grounds by finding that Proposition 8 violated the plaintiffs’ fundamental right to marry, on equal protection grounds by finding that Proposition 8 discriminated against a vulnerable minority group and could not meet the court’s heightened scrutiny test, or it could find that bans like Proposition 8 were born out of animus toward gays and lesbians and could not survive even the rational basis test because they served no legitimate state purpose.
But the team’s trump card involved a relatively arcane legal doctrine called “standing” that had nothing to do with marriage or discrimination. Under Article III of the Constitution, the U.S. Supreme Court may only decide actual “cases or controversies.” The idea behind that limitation is that unelected judges should be constrained from injecting themselves into the political process by offering freewheeling legal advice to the democratically elected branches about how the government ought to run. What it means in practice is that before a federal court can decide the merits of a constitutional challenge, it must first decide whether the party invoking its jurisdiction has the right to be in court.
In order to have what is called “Articl
e III standing,” a party must have a particularized stake in the outcome of a case, meaning the party must show actual or imminent injury if the court does not step in to redress it. At the district court level, the burden was on the plaintiffs, because they were the ones asking the court to overturn the law. Their stake was clear-cut and undisputed: Kris and Sandy and Jeff and Paul wanted to marry, and Proposition 8 barred them from doing so. But once the plaintiffs prevailed in Judge Walker’s court, the burden shifted to the party seeking to overturn that decision.
The state clearly had standing to defend a law passed by its citizens. But did Cooper’s clients? Before the trial had even begun, some of the younger members of the Gibson Dunn appellate team had concluded that Cooper’s ability to have a higher court consider the merits of his argument if he lost at trial was in serious doubt, thanks to two Supreme Court decisions.
A 1986 opinion in a case called Diamond v. Charles made clear that the mere fact that a party had been allowed to intervene at the trial level to defend a law did not automatically confer standing to appeal. At issue in that case was a decision striking down a restrictive Illinois abortion law that the state had declined to appeal. The court found that the “conscientious objection to abortion” expressed by a trial court intervener was not sufficient to confer standing on appeal: A party must show “a direct stake in the outcome” if the decision is not overturned.
And in a unanimous 1997 opinion in a case called Arizonans for Official English v. Arizona, the Supreme Court had cast “grave doubt” on whether ballot proponents like Cooper’s clients could meet that test, saying it was not enough to share a generalized interest with members of the public in the proper application of the Constitution. The comment by Justice Ruth Bader Ginsburg was made in passing, in what lawyers call dicta, and as such was not binding. (The Court ultimately dismissed the case, which involved a ballot initiative mandating that state workers speak English only, on other grounds, ruling that it was moot because the Spanish-speaking employee who had challenged the law had left her job by the time the appeal was filed.) Still, Justice Ginsburg’s words seemed like a pretty good indication of where the justices might wind up in this case.
