by Becker, Jo
“You get to the point where you evolve in your life, where everything isn’t black and white, good and bad, and you try to do the right thing,” state senator Roy McDonald told reporters, explaining his decision to vote in favor of allowing gays and lesbians to wed. “You might not like that. You might be very cynical about that. Well, fuck it. I don’t care what you think. I’m trying to do the right thing. I’m tired of Republican-Democratic politics. They can take the job and shove it.”
With only one more Republican senator needed, Mehlman kept at it. He called Senate Majority Leader Skelos repeatedly, and updated Chad via e-mail. Finally, on June 24, Skelos called him. Mehlman had spent a sleepless night at the Ritz-Carlton in D.C., where he was staying on business. “The vote is going to happen tonight,” Mehlman recalled Skelos saying. “I think you’ll be pleased with the outcome.”
After six hours behind closed doors, the Republican state senate caucus emerged. The governor had agreed to a broad exemption, ensuring that religious institutions and nonprofits could not be sued for refusing to take part in same-sex marriages. “After many hours of deliberation and discussion over the past several weeks among the members, it has been decided that same-sex marriage legislation will be brought to the full Senate for an up-or-down vote,” Skelos said in a statement.
When the vote was called, four Republican senators voted aye, putting the bill over the top.
Back along the parade route, “Here Comes the Bride” was playing out of unseen speakers. Just up ahead, the crowd chanted, “Bloomberg! Bloomberg!” as the mayor passed by. Volunteers pressed THANK YOU, GOV. CUOMO signs into revelers’ hands.
“Printed those fast, didn’t they?” Chad said to Adam.
“I keep thinking about those four Republican senators,” Adam replied. “When they went home they must have felt so good. Whereas some of these other guys . . .”
Rob Reiner shook his head. “What about Obama?”
The president, in town for a $1,250-per-head fund-raising dinner with gay activists while the bill was being debated the previous week, had referenced the “deliberation about what it means here in New York to treat people fairly in the eyes of the law,” without committing himself to one view or the other. Then, after the bill passed, a White House spokesman had put out a statement that echoed the case segregationists had made in the South half a century ago, that civil rights should be decided by the political process. “The states should determine for themselves how best to uphold the rights of their own citizens,” the president’s spokesman said. “The process in New York worked just as it should.”
“He should’ve stuck with ‘my views are evolving,’” Rob told Chad. “Whoever told him to message states’ rights ought to be fired. For a black man to evoke states’ rights? It’s unbelievable.”
“It was a ham-handed attempt to try to say something nice about New York, since his views are still ‘evolving,’” said Chad, who had called the White House to complain. “They did not think through the fact that it flew in the face of our case, and their own constitutional reading of DOMA that gays and lesbians deserve heightened scrutiny.”
But as they made their way down Fifth Avenue toward Greenwich Village, the president was largely forgotten. An elderly lady in a straw boater hat handed out cups of water. Kids waved bubble wands. Chad, who badly wanted children of his own someday, peeked back at Ilaria.
“I just want to take her off the parade route and go hang out somewhere,” he said.
Here and there, a reveler could be spotted in an outlandish outfit, but overall the crowd was much tamer than either Chad or Adam had expected.
“Maybe because marriage is a more serious thing to celebrate,” Chad said.
“Or, now that we can get married, we’re boring!” Adam replied.
Chad smiled. Seven months earlier, he had begun dating Jerome Fallon, a corporate sales manager at Anthem Blue Cross. Jerome was a six-foot-six-inch gentle giant, kind, as calm as Chad was high-strung, and cute to boot. For the first time, Chad was planning to bring someone he was dating back home to Arkansas, and to his twentieth high school reunion at that. Fishing out his iPhone, Chad sent him a text and some photos of the celebration. Then he turned back to Adam.
“I wonder what the parade will look like when we win the case?”
TWENTY-EIGHT
SOME “GRIST FOR JUSTICE KENNEDY”
Chad was working on four hours of sleep when he arrived at Gibson Dunn’s Los Angeles office at 7:45 A.M. on Wednesday, February 8, 2012. More than a year after the case had been argued in the Ninth Circuit, the three-judge panel was at long last about to hand down its decision. Joining the plaintiffs in a conference room, Chad read the statement he would deliver in the event of a win.
“Should I read the losing one?” he asked.
“No!” Paul and Jeff shouted at once.
But in truth, they were all feeling confident, and relieved that the case finally seemed to be on the move again.
“I slept like a baby last night,” Sandy said.
In November, a unanimous California Supreme Court had finally issued the standing-related decision that everyone had been waiting on. The court found that as a matter of California law, it was essential to the integrity of the initiative process that proponents like Cooper’s clients be allowed to assert the state’s interest in defending a ballot measure when public officials refused to do so. The decision was not unexpected, given the tenor of the arguments, and in fact was welcomed by the plaintiffs and their legal team, even though it seemed to foreclose any possibility that they could win on a technicality; as a general rule, federal courts defer to state courts on questions of state law.
As Kris and Sandy explained to their boys, “bad news is good news,” because only if Cooper’s clients had standing to appeal would the Supreme Court be able to settle the question of whether gays and lesbians had a right to marry by ruling on the constitutionality of Proposition 8 and bans like it. Olson compared the outcome to the folkloric strategy employed by the fabled Brer Rabbit to avoid being killed by a fox.
“He said, ‘Eat me if you want, but please, please don’t throw me in the briar patch.’ And as a result of the importuning they threw him in the briar patch, and the rabbit easily escaped. That was exactly what the rabbit wanted. And in a way, this is exactly where we want to be. We now have an opportunity to change the law of the land, which is what we said we wanted to do.”
The California Supreme Court decision should have cleared the way for an immediate ruling by the Ninth Circuit, but Cooper had thrown a wrench into the works. Rather than rule on whether Judge Walker had reached the correct legal decision in the case, he had asked the appeals court to throw Walker’s opinion out altogether, a ploy that if successful would land everyone back at square one.
Cooper had been under pressure to make Walker’s sexuality an issue ever since the judge was outed in the San Francisco Chronicle, but he was not given to quixotic gestures, and a judge is presumed under the law to be impartial. But an interview that Walker gave after announcing his retirement from the bench gave him an opening. In it, the judge had talked openly about his longtime partner. Cooper filed a motion arguing that while the fact that the judge was gay was not disqualifying, the fact that he was in a long-term relationship with a man potentially was, and should have at least been disclosed.
Even observers who disagreed with Walker’s ruling striking down Prop 8 had criticized the attack on the judge’s impartiality: bordering on “frivolous,” Richard Painter, a law professor who served as chief White House ethics lawyer under President George W. Bush, told the Los Angeles Times.
Judge James Ware, who had been appointed to the bench by the first President Bush and had replaced Walker as chief judge of the Northern District of California, had dismissed the claim. Not only had Cooper failed to produce any evidence that Walker in fact wanted to marry and therefore ha
d an improper interest in the outcome of the case, Ware wrote, but simply because a judge might be affected by a ruling in the same way as other members of the public is not a basis for recusal or disqualification. Forcing judges to disclose irrelevant, intimate details about their future intentions would set a dangerous precedent, he said. Should female judges of childbearing age, for instance, be required to recuse themselves from a case involving abortion, or disclose whether they might in the future someday want to have a child?
“The mere fact that a judge is in a relationship with another person—whether of the same sex or the opposite sex—does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain.”
Undeterred, Cooper had appealed. That had resulted in yet another round of arguments before the Ninth Circuit panel in December, frustrating both Olson and Chad. Time, both felt, was Cooper’s friend, not theirs. They wanted to beat the DOMA cases to the Supreme Court. And, by both Chad and Mehlman’s assessment, there was only a fifty-fifty chance that Obama would be reelected.
What if one of the liberals on the Supreme Court retired or died? At age seventy-eight, Justice Ginsburg had twice been diagnosed with cancer. A replacement named by a Republican president could tip the balance against them, Chad worried. What if, instead of acting too soon, as their critics contended, they had waited until too late?
Living with the extended uncertainty had also worn on the plaintiffs. Paul, worried that the case was starting to define him, was trying to force himself to stop posting case-related news on his Facebook page. Jeff kept thinking about the children he and Paul wanted so badly, once the case was decided. Adopting or finding a surrogate does not happen overnight, and he could not help but do the math. He was thirty-eight; in the best-case scenario, he would be forty by the time they had a child, meaning he would be fifty-eight by the time their son or daughter graduated from high school.
Kris had started to give up hope that she and Sandy would be able to marry before the twins, now sixteen, reached adulthood. Spencer and Elliott had shot up inches since the beginning of the case, and planned for the first time to take part in the postdecision press conferences, along with Jeff’s dad. Elliott did his advanced placement environmental homework in one corner of the conference room, while Spencer showed Adam the remarks he had written the night before.
“I’m here today because I have a chemistry test and I don’t want to take it,” Sandy joked.
Chris Dusseault and Theane Evangelis were on hand in the conference room with the plaintiffs to explain the opinion. Olson and Boutrous were downstairs, waiting for it to come in. Terry Stewart was in San Francisco, in her office at City Hall. Boies was in New York, receiving an award from the American Friends of Hebrew University.
At 9:40 A.M., Lance Black joined the plaintiffs in the conference room. He was pale and drained. His oldest brother Marcus had recently died, eight weeks after receiving a diagnosis of bone cancer. Marcus had always been his protector growing up, but he was too weak to walk by the time Black arrived in Michigan to drive him to their mother’s home in Virginia for Christmas.
“A lot of nervous people,” Black observed.
“So, we lost,” Chad deadpanned, “but we’re going to appeal.”
Black stopped short, a horrified expression on his face. “Is that true?”
Everyone burst out laughing.
“That was so horrible!”
Then the group dialed in to the AFER office, where several new members of the recently expanded war room team were stationed that day, and waited.
“Here we go!” Chad said, as the opinion popped into his in-box.
Silence.
“It’s not letting me open it.”
“Reinhardt wrote the opinion,” someone back at AFER could be heard saying over the speakerphone.
“Looks narrow,” Evangelis said, reading portions aloud.
“‘Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. . . . We need not and do not answer the broader questions in this case.’”
Kris clasped her hands together. Spencer cracked his knuckles. The two lawyers scrolled through the opinion as fast as they could. The panel was unanimous in rejecting Cooper’s attack on Judge Walker’s impartiality, and in finding that his clients did have standing to appeal. And by a two-to-one vote, with Judge Smith writing a tepid dissent, the panel declared that Proposition 8 violated the Constitution’s equal protection clause.
Writing for the majority, Reinhardt laced his opinion with the narrower arguments that Terry Stewart had made in the separate brief she had filed with the court. As she had urged, he adopted a rationale that limited the impact of the ruling to California, striking down Proposition 8 while leaving intact, for the time being, bans in the other states covered by the Ninth Circuit. It was irrational to deny gays and lesbians the right to call their unions marriage, Reinhardt found, but leave in place laws and policies that make those unions the functional equivalent in all but name, as California had done. He also quoted repeatedly from Justice Kennedy’s opinion in the Romer case, holding that, like the voter initiative at issue in that case, Proposition 8 had the peculiar property of “withdrawing from homosexuals, but no others” an existing legal right that had been broadly available. Withdrawing a right from a disfavored group is different than declining to extend it in the first place, he wrote. “The Constitution simply does not allow for laws of this sort.”
Proposition 8, however, would remain in effect for the time being; until Cooper had exhausted his appeals, gays and lesbians would not be allowed to marry.
In San Francisco, Terry Stewart breathed a sigh of relief. Now they had options. Reinhardt had written an opinion that, just maybe, the Supreme Court would let lie. Spencer and Elliott grabbed Kris, and Paul and Jeff hugged each other.
“All right guys, it’s a win!” Chad said.
“Yeah, baby!” Rob Reiner rejoiced.
He and Michele had just joined Olson and Chad in Ted Boutrous’s office. Kristina, who had gotten word over the internal White House news alert, e-mailed Chad: “OMG!!!!” “Congratulations, AFER Family,” wrote Bruce Cohen, who was home with the baby’s first cold. “Following everything from Ilaria’s room.” “Thank you Sandy, Kris, Paul and Jeff for your commitment and willingness to lead history toward justice,” Mehlman wrote in.
Everyone was bumping fists as the television in the corner of Boutrous’s office tuned to MSNBC offered instant analysis. The team, Boutrous said, was going to get questions about the narrowness of the opinion, and they needed to be careful not to downplay what was still a landmark ruling: For the first time, a U.S. court of appeals had found a law banning gays and lesbians from marrying unconstitutional.
“It’s no small thing,” Boutrous said.
“Absolutely,” Olson said. “Take that hard line. It’s true, and we will take it.”
“Here’s a good line,” Boutrous said, reading from the part of the opinion in which Judge Reinhardt outlined the social significance of marriage, quoting everyone from the legendary crooner Frank Sinatra to Shakespeare. “‘A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of “registered domestic partnership” does not.’”
“That’s great,” Olson said.
“I’m liking the tone of this a lot,” Boutrous replied.
While it was true that Reinhardt had skirted the question of whether Proposition 8 targeted a suspect class or infringed upon a fundamental right and instead decided the case using the rat
ional basis standard, the language was actually fairly sweeping in its rejection of the justifications put forth by the proponents of Proposition 8 and bans like it.
The opinion rejected as “implausible” the notion that denying two men or two women the right to marry could somehow bolster the stability of families headed by one man and one woman. It found Cooper’s claim that Proposition 8 expressed the voters’ reasonable desire to proceed with caution unconnected to reality, given that it was enacted after eighteen thousand couples had already married and that it imposed a permanent ban on same-sex marriage rather than a time-specific one. It rejected the notion that the initiative was designed to promote responsible procreation, or child rearing by biological parents, or ensure that parents controlled what their children learned in school.
“Proposition 8 is so far removed from these particular justifications that we find it impossible to credit them,” the panel’s majority found. “All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
“Boy, this is, this is grist for Justice Kennedy,” Olson said. “Feeding right into it.”
Boutrous lit up. “We’re liking that.”
“There’s no ‘fuck you to Ted and Chad’ on behalf of the ACLU?” Chad interjected, a joking reference to that long-ago lunch with Judge Reinhardt’s wife, who had since stepped down as the organization’s Northern California executive director, and other advocates.
