by Becker, Jo
“If the governor and the attorney general decline to defend the law, that could be it,” McGill recalled telling Olson one day over lunch at Spezie, a restaurant near the firm’s Washington, D.C., headquarters. “This case could be over.”
It was not the way either Olson or Chad wanted to win, and both were conflicted. They wanted the courts above Walker’s to uphold his ruling and strike down same-sex marriage bans across the nation. If Cooper could not appeal, Walker’s ruling that Proposition 8 was unconstitutional would remain in force, but have no precedential impact beyond California’s borders. But given that the courts were duty-bound to decide the standing question anyway, they would be derelict if they did not make the argument themselves. And if the case made it past the Ninth Circuit to the Supreme Court, the standing argument would likely find a receptive audience in Chief Justice Roberts. He had a particular interest in standing doctrine that dated back to his days as a young lawyer in the Reagan Justice Department, when he was a forceful advocate for challenging the standing of litigants who were trying to drag the administration into court over its environmental policies.
The thinking was that Olson could continue to emphasize the broad arguments designed to produce a fifty-state victory, while offering the Supreme Court an alternative that might be attractive to some of the Court’s conservatives unlikely to be with them on the merits.
“This is the way I get to nine votes,” Matt McGill explained one day during the trial. “The chief hates big, controversial cases, and this is one.”
Which is why, on the day Judge Walker’s decision came down, two phone calls had been placed. Chad had called Governor Schwarzenegger’s chief of staff. Boies had called Attorney General Jerry Brown, whom he knew personally.
Both were assured that they need not have bothered. The state had no plans to appeal Judge Walker’s decision in the Proposition 8 case.
The team that reassembled at Gibson Dunn’s San Francisco offices on Saturday, December 3, 2010, was a pared-down version of its former self. Boies was there, fresh off of another big win; he had recently won a record $1.3 billion in damages on behalf of the Oracle Corporation in a software piracy case. But with the Gibson Dunn team set to take center stage now that they had reached the more cerebral appellate phase of the case, most of the trial lawyers from Boies’s firm had moved on to other cases.
Trial courts resolve factual disputes while appellate courts look only at whether the law was correctly applied. The result was an operation that felt less kinetic and more Socratic.
Olson was spending most of his time holed up in his office, restudying the case law, honing his argument, and sending out requests for information via Ted Boutrous, who joked that he sometimes felt as though he were managing a Triple Crown racehorse: “Water! Carrots!”
They had brought along Gibson Dunn’s appellate A Team to play devil’s advocate during preargument prep sessions: Olson’s two Supreme Court wingmen, Matt McGill and Amir Tayrani, were joined by Theane Evangelis, a former clerk to Justice Sandra Day O’Connor who worked closely with Ted Boutrous and had been hovering quietly in the background since the inception of the case, drafting the initial complaint and portions of every brief filed since.
Question to Olson: What would happen if the evidence showed that divorce rates climbed in Massachusetts after it recognized same-sex marriage? We know that it did not show that, but what if it had?
Answer: The proponents can’t prove cause and effect. It would be like outlawing football because it makes the weather grow cold.
Better answer: If divorce rates rose after slaves were freed, would that make prohibiting ex-slaves from marrying constitutional?
McGill was so tough on Olson at one session that Chad pulled him aside afterward. “Nice job, Justice McGill,” Chad said. “You’ll make a good Supreme Court justice someday. We just have to liberal you up between now and then.”
McGill laughed. “I think this case is going to take care of that.”
Arguments were set for December 6. The Ninth Circuit had given each side an hour to make its case, half of which had to be devoted to the standing question. Boies was going to handle that portion of the argument, leaving Olson free to focus on the merits of the constitutional challenge. The three-judge panel that would hear the case had been named the previous week.
Judge Randy Smith, sixty-one, was a Mormon from Idaho appointed by President George W. Bush as part of Bush’s quest to change the makeup of the Ninth Circuit. He was conservative, though not in a chest-thumping kind of way. Stephen Reinhardt, seventy-nine, was considered the liberal lion of the court. His past rulings made it clear that he believed laws targeting gays and lesbians should be subject to heightened scrutiny. And he made no apology for the fact that his fondness for big, sweeping opinions had made him one of the most reversed judges on the appeals court bench.
As Terry Stewart put it, “A lot of times he doesn’t give a fuck what the Supreme Court thinks.”
On the surface, then, the question appeared to be whether Reinhardt could bring Michael Hawkins, a cautious Clinton appointee who viewed himself as a moderate, along for the ride. But there was a wrinkle.
Cooper had filed a motion demanding that Judge Reinhardt recuse himself, citing the fact that Reinhardt’s wife was an outspoken supporter of same-sex marriage who had worked to defeat Proposition 8, as well as a news report that she had engaged in “confidential discussions” with the plaintiffs’ attorneys.
Reinhardt had curtly denied Cooper’s request the day before. Justice Clarence Thomas’s wife had done work for a conservative think tank that was challenging the constitutionality of Obamacare, the president’s overhaul of the nation’s health care system, and Justice Thomas had no intention of recusing himself from that case. Reinhardt chastised Cooper for an “outmoded conception of the relationship between spouses” in a follow-up order explaining his decision. The court’s rules had changed since the days when judges were told to ensure that their wives not participate in politics, in part at Reinhardt’s urging: “I wrote the ethics committee and suggested that . . . even if it were desirable for judges to control their wives, I did not know many judges who could actually do so.” His wife’s views, he said, “are of no consequence,” and “cannot be imputed to me, no matter how prominently she expresses them.”
Chad and the rest of the team found the entire exchange more than a little ironic. Reinhardt’s wife was Ramona Ripston, the longtime executive director of the ACLU of Southern California. And the “confidential discussions” vaguely referenced in the article Cooper cited took place over that lunch at the Reiners’ home a year and a half ago, the one where Ripston and her colleagues from the ACLU and Lambda Legal had denounced them as misguided outsiders whose inability to count to five votes on the Supreme Court could set the movement back decades. If anyone should worry about Reinhardt’s presence on that panel, it was the plaintiffs.
Just four months had passed since Judge Walker had issued his ruling, but it felt like much longer.
“It’s been such a blur for me, this year,” Boies said.
The fall had been a trying time for many on the team. Few knew it, but David Boies’s forty-eight-year-old daughter was in the end stage of her battle with cancer, and had only weeks left to live.
Chad had suffered a double loss. His father had died in October. Chad’s parents had divorced when he was small, and the two had never been close. But that made it difficult in its own way. Chad could still remember how frightened he had been as a boy when his father dropped him at a hunting stand with a gun before dawn one morning, then drove off, leaving him alone with the sound of the animals. He had cried after shooting his first deer, but when his father returned, he had pretended to enjoy it, bragging about how he “got him.” His mom had supported him from the moment he came out. But David Griffin, who was sixty-two when he passed away at a hospital in Arkadelphia, Arkansas, had never
told his son how he felt about him being gay, or about the case that Chad had made his life’s work. Now Chad would never know.
And just the day before, Chad had said goodbye to Kristina. First Lady Michelle Obama had offered her a job as her communications director. Chad had pushed Kristina to take it, just as she had pushed him to file the case. The two friends looked after one another, and Chad, having once worked at White House himself, knew it was too good an opportunity to pass up.
He had dropped her at the airport before heading to San Francisco. In her bag was a leather-bound copy of Judge Walker’s opinion, Chad’s going-away gift. They had both cried. Driving off, he was out of sorts. Who would accompany him to the antique flea markets he liked to haunt, or to Starbucks?
“I thought, I don’t know where I am going. Because I would always plan my day with Kristina.”
The war room felt empty without her. Yusef Robb, who might have filled the silence with his tough-talking banter, had left AFER to work on the campaign of Eric Garcetti, the man who would soon become Los Angeles’s next mayor. Adam Umhoefer and Amanda Crumley were e-mailing op-ed columnists and trying to book the plaintiffs and lawyers on news programs, but it was a harder sell this time around.
To the extent that anything related to gay rights was breaking through the wall-to-wall coverage of the explosive release by WikiLeaks of 250,000 secret U.S. diplomatic cables, it was the fate of the military’s Don’t Ask, Don’t Tell policy. A federal district court had declared the policy unconstitutional and ordered the military to cease enforcing it worldwide, and a White House effort to repeal the law was coming down to the wire in Congress. News organizations tend to shy away from incremental developments, and everyone knew that the Ninth Circuit panel likely would not have the last say on Proposition 8.
“We’re in the messy middle,” Amanda Crumley complained.
Still, momentum continued to swing their way. The first national poll to show majority support for same-sex marriage had been released in the weeks following Judge Walker’s ruling; Americans were still closely divided on the subject, the CNN survey found, but 52 percent now believed that gays and lesbians should have a constitutional right to wed.
And in California, where coverage of the trial had been heaviest, Jerry Brown had defeated Meg Whitman in the governor’s race. That was significant because despite Chad and Kristina’s efforts, Whitman had eventually been forced to clarify that if elected she would defend the constitutionality of Proposition 8. Democrat Kamala Harris, who had vowed during her campaign not to waste the state’s “precious resources” appealing a law that had been found to be unconstitutional, had replaced Brown as attorney general, besting an outspoken supporter of Proposition 8.
But the team’s sense of triumph over those milestones had been tempered by a series of tragedies around the country. In the space of four weeks, four teenagers had committed suicide after being tormented by classmates because they were or were perceived to be gay.
In California, thirteen-year-old Seth Walsh hanged himself from a tree in his backyard rather than endure more fear-filled walks to school with the sound of “queer” ringing in his ears. In Texas, thirteen-year-old Asher Brown shot himself with his stepfather’s handgun after two years of being taunted and tripped down stairs by bullies. In Indiana, fifteen-year-old Billy Lucas hanged himself in the family barn after being kicked, called a fag, and told hours before his death that he didn’t deserve to live. And in New Jersey, eighteen-year-old Rutgers University student Tyler Clementi threw himself off the George Washington Bridge after his roommate secretly recorded him in an intimate moment with another male student and broadcast it online.
The news had hit Chad and some of the gay lawyers on the team particularly hard. “I am hopeful our case has had an effect, but then something like this happens, and you wonder,” Enrique Monagas said. “The Tyler Clementi case kills me. Because I’m sure when Judge Walker’s decision came out, I’m sure he had a moment of happiness. And still it made no difference to him.”
“Once again we are in a twenty-passenger bus, heading to court,” Chad said.
It was early in the morning of December 6, and the plaintiffs had just boarded. In a singsong, highly caffeinated voice, Sandy started making up her own words to an old children’s camp song as they made their way across town: “Here we sit like birds in the wilderness, birds in the wilderness, waiting for our rights.”
Chad groaned. “She has too much energy this morning.”
Everyone had settled into a groove, and the mood was far more relaxed as the bus pulled up to the court of appeals than it had been on the drive over to the district courthouse on that first day of trial, nearly a year earlier. As Chad put it, high-fiving both couples, “We’re going in there winners.”
CNN was waiting at the courthouse to interview all four plaintiffs, and camera crews from other networks were ready to go live with the short statement they each gave before heading inside. But what had once been anxiety inducing was becoming old hat.
“Government discrimination hurts everyone,” Kris said in perfect sound bite–ese. Jeff added, “The truth and the law are on our side.”
Chad checked his e-mail as they headed up the steps. No word yet from Kristina. He had sent her a note earlier to wish her luck on her first day at the White House: “I miss you. I love you.”
No one seemed particularly fazed by the truck plastered with signs like PERVERSION and PREPARE TO MEET THY GOD that was circling the courthouse. Kris just shrugged when one of the courthouse guards apologetically commented that “there are a lot of crazies out there” as she and her two boys passed through the metal detector.
Inside, the courtroom was packed. A number of judges who had not been chosen to hear the landmark case were sitting in the audience, adding to the historic atmospherics. The chief judge of the Ninth Circuit, Alex Kozinski, made a special appearance to welcome the lawyers. “Well, Olson,” he boomed, “after arguing so many cases before the Supreme Court, it’s good to see you’ve graduated and come to the Ninth!”
Alone and unnoticed, Terry Stewart slipped by and took her seat at the plaintiffs’ table. Tensions between Stewart and the Gibson Dunn team had been running high ever since she filed a separate brief with the Ninth Circuit on behalf of the city of San Francisco, which was still a party to the case. Her decision to file separately, rather than to simply sign on to the brief filed by Olson, had caused the first serious strategic rift on the team, and harsh words had been exchanged as the Gibson Dunn lawyers tried to force her to back down.
Cooper had always believed that one of the strengths of his case was that California offered so many protections for gays and lesbians, arguing during trial and in briefs that it meant that the initiative could not have been motivated by prejudice. The brief Stewart had filed attempted to turn that argument on its head, arguing that Prop 8 was peculiarly irrational precisely because California’s gay-friendly laws neutered Cooper’s argument that the state had an interest in promoting one type of family structure over another.
The state’s domestic partnership law contemplates that gays and lesbians will form families, and it encourages them to become parents. The state, for instance, prohibits discrimination based on sexual orientation in adoption and foster care placement decisions. Stripping gays and lesbians of the ability to marry while leaving those policies in place, she argued, irrationally undermines the state’s interest in protecting the welfare of children by stigmatizing those being raised in same-sex households.
It was not that Olson thought it was a bad argument. His brief touched on several similar themes. It was the way she made it, and her motivations for doing so. Making the standing argument was one thing, since the court had to consider the procedural question of standing in any event before it could address the merits of their claim that Proposition 8 was unconstitutional. But if the Ninth Circuit panel found that Cooper’s clients did have
a right to defend the initiative on appeal, Olson wanted it to adopt Judge Walker’s rationale, with the result that same-sex marriage bans across the Ninth Circuit, in conservative states like Idaho and Alaska, would fall. But Stewart was urging the court to adopt a California-specific line of reasoning that would result only in a finding that Proposition 8 was unconstitutional, and she was doing it with the express hope that the Supreme Court would decline to review a narrower ruling limited to just one state.
And therein lay the crux of the clash. The entire point was to bring this case to the Supreme Court so that gays and lesbians nationwide could marry. Unbeknownst to Stewart, Chad already had the Gibson Dunn and Boies lawyers working on a plan to file a new case challenging another state’s ban if Cooper’s standing problem or a California-only ruling by the Ninth Circuit prevented that from happening. The recent rash of suicides had only strengthened Chad’s resolve.
“These are the consequences to discrimination,” he had told the lawyers during one planning call. “It’s not just a ceremony in which we all wear a suit and call ourselves married.”
The lawyers were looking for states that offered virtually no protections for gays and lesbians and where the governor and the attorney general were guaranteed to fight them. Chad, being Chad, wanted them to choose one with a major media market.
Over a tense phone call Thanksgiving week, Stewart had tried to explain to Ted Boutrous that she was not trying to sabotage the broader case Olson was making, and indeed wanted it to succeed. She just wanted to hedge the team’s bet. “You guys have always been optimistic that the sweeping fifty-state argument will prevail in the Supreme Court,” Stewart recalled telling Boutrous. “But I am anxious. I respect that you are not. But I am.”
