by Becker, Jo
More important, the plaintiffs’ stories had been heard. Close to a quarter million people had viewed the day-of YouTube live stream of 8, and three-quarters of a million more had watched the taped version since. Three million had listened to an audio version of 8 on National Public Radio stations. It had been performed by community, university, and high school theater groups 186 times and counting. There were even plans for readings abroad, but at the urging of Mehlman, the team was currently focused on organizing productions in the four states where marriage would be on the ballot in November. The war room, thanks to a foundation grant, now had eight full-time staffers and consultants, and a fully realized social media machine, with 125,292 Facebook and nearly 14,890 Twitter followers, and celebrities like Hilary Duff retweeting case-related news to huge audiences. By contrast, ProtectMarriage.com’s social media presence was virtually nonexistent, and the group’s supporters had recently sent out a plea to donors for more money, saying legal costs had topped $12 million.
“When the Southern Poverty Law Center sued the KKK, the goal wasn’t to win—it was to bankrupt them,” Chad happily told his team after reading about the opposition’s financial woes. “They’re losing the case, spending money, and more states are coming into our column. In politics and in war, when you are on the defensive, you are losing.”
That is not to say that there weren’t huge challenges ahead at the Human Rights Campaign. Richard Socarides, President Clinton’s former adviser on gay and lesbian issues and a friend of Chad’s, summed them up this way: “Hiring Chad was like hiring the general of an opposing army. This was someone who refused to go along just because things had always been done in a certain way, who wasn’t afraid to upend the status quo and take on powerful interests. But he still has a lot of enemies who are praising him now, but looking for an excuse to take him down.”
Mehlman had plenty of advice, telling Chad that he needed to avoid becoming the master of a feckless bureaucracy, instead of its “kickass strategist.” The organization needed to be more bipartisan, with less focus on influencing Washington and more on influencing society and changing the reality on the ground, he counseled. It needed to be more welcoming to people who changed their mind on same-sex marriage or other gay rights issues. But most of all, Mehlman advised, the organization needed to learn how to wield power. To that end, he had arranged for Chad to visit with Howard Kohr, the chief executive director of what he considered to be one of the most powerful and effective groups in Washington: AIPAC, the American Israel Public Affairs Committee.
“Obama did what politicians do, which is he followed the electorate,” Mehlman said. “So don’t say, ‘It’s brave that Obama came out in favor of marriage equality.’ That’s counterproductive. The point is it’s good policy and good politics. The pro-Israel lobby and the National Rifle Association do not go around saying, ‘Thank you, you’re brave.’ They say, ‘Damn right—what you did is in your best interest.’”
Chad was excited, but it was hard to say goodbye to his old life. The Human Rights Campaign was headquartered in Washington, D.C. “Wait a minute—you’re moving? This is sad,” Michele Reiner had said when she learned the news. Now her husband grabbed a microphone. He was not about to let Chad move across the country without a proper send-off. Chad was standing next to Jerome, who had agreed to give up his job and move with him; he’d find another one, he said, with a serenity Chad marveled at. “Would you just stress out more?” Chad sometimes joked.
“I love Chad to death,” Rob began. “I’m gonna say this now, and he’s hearing it for the first time. If there ever is going to be—and there will be at some point—the first gay president, you’re looking at him.”
Chad grabbed Jerome’s arm so hard that he looked down at him. “Stop pinching me,” Jerome whispered.
“I don’t know what else to do with all my emotions,” Chad whispered back.
Chad arrived for his last day at the AFER office the following morning, wearing a hoodie over a pressed blue button-down. His office on Sunset Boulevard overlooking the famed Hollywood sign was bare. The photos of a far younger version of himself, sitting on Air Force One with President Clinton and looking very 1990s with more hair than he had now, had been packed away. So had his vintage “Fight Briggs” political poster; it came from a 1978 campaign in California, the first to beat back a proposed initiative to ban gays and lesbians from teaching in the state’s public schools since Anita Bryant had started the national effort with her “Save the Children” campaign in Florida. His consulting business would be taken over by Felix Schein, a former journalist turned political consultant who had taken over for Kristina when she left.
Jerome was home, supervising the movers.
“I love you,” Chad texted.
“Stay away!” Jerome wrote back.
Kris and Sandy were in the conference room, waiting for the Ninth Circuit’s ruling on whether it would rehear the case en banc with Michele Reiner, Adam, and the expanded war room team. Jeff and Paul had to work, but Jeff was keeping in touch via Facebook. “Tick, tick, tick, tick,” he wrote.
Rob was thinking about making a movie about the case, but if asked, Michele told Kris and Sandy, “Just say, ‘who knows, blah-blah.’” It was exciting, and both could see the public education potential, but the prospect also made them a little nervous.
Things had been going well in the Perry-Stier household, with even Sandy’s mom beginning to accept her relationship. When Sandy’s dad had died, following a long bout with dementia, her mother had surprised her by listing Kris, along with the spouses of his other children, in the obit. And on a trip home to Iowa the previous Thanksgiving, her mother had opened up during a quiet moment in the kitchen.
“She said, ‘I was listening to a talk show about gay marriage, and I think civil unions, that kind of makes sense because marriage is something that belongs in the church,’” Sandy recalled. “I said, ‘But Mom, that’s not the same. Anything that treats people differently is discrimination. Marriage doesn’t have anything to do with religion. Think about water fountains in Georgia.’ And she said, ‘That makes sense.’”
But 8 had opened up some old wounds. Both women had been with other people before they were with each other. Kris’s ex, Spencer and Elliott’s other mom, Adria-Ann McMurray, had watched the play on YouTube. To keep it simple, she had been written out of the script, and both boys had been worried about how “AA,” as they called her, would react. “I’d go into my own head and say, ‘I wonder what AA would feel about this, how she’d feel watching this scene,’” Elliott recalled afterward. And she had been upset, especially when Sandy’s character read her lines about bringing the twins to their first day in kindergarten, when in fact it had been her and Kris.
“She probably thought she did,” Elliott told her, “but that’s not really fair to you.” “Well, that’s okay,” she’d said, but Elliott could tell it wasn’t, not really.
Tom, Sandy’s oldest boy, had gone to both the Broadway and Los Angeles productions of 8. He was twenty-three, handsome with an unruly surfer’s mop of sun-bleached hair, and hoping to go to film school. Sandy thought he would enjoy mingling with the celebrities and watching how the play came together. And he had. But in New York, when the woman playing Sandy, reading her testimony during the dress rehearsal, said she had never loved anyone else before Kris, he had fled outside to the sidewalk.
“It just crushed me,” he said afterward. “I was like, ‘Fuck.’ I started crying. That’s a lie. That’s a lie. And if it isn’t a lie, it’s even worse.”
He and his younger brother, Frank, had never gotten along well with Kris. It wasn’t because of the whole lesbian thing. Both had friends who were gay and believed that Cooper’s arguments against allowing them to marry were, as Tom put it, “bogus.” Theirs was the more mundane heartache of divorce. They were several years older than Spencer and Elliott, and had been going to Catholic school in Al
ameda when Kris and Sandy got together. Their dad, in a losing battle with his alcohol demons, had moved in with his parents, and they moved to Berkeley with their mom for high school.
“It was this dreamy family thing that was forced on us,” Tom said. “So at the time that my brother and I most needed her attention, it was cut short. It was messed up.”
Both had since moved past blaming their dad’s death on the relationship. “Emotionally, he was totally abusive—he was drunk all the time,” said Frank, his soft blue eyes a mirror of Sandy’s. “I don’t blame her for leaving.”
But at the time, they had both been angry, sad, and deeply resentful of Kris’s attempts to curb the rebellion that followed. Frank had hated the way that the People magazine made them all out to be some kind of modern-day Brady Bunch, when the reality was he spent much of his teen years in sullen escape, listening to punk music and hardcore metal and lifting weights.
“I said some awful things,” he said. “If Kris makes my mom happy, that makes me happy, but . . .”
He trailed off.
“My mom was mine, and now she’s Kris’s.”
“There’s just a pile of human detritus,” Sandy had said sadly, as they drove over to the Reiners’ the night before.
Now, around the AFER conference table, everyone kept their eyes glued to their laptops, waiting to see if they would have to endure yet another round at the Ninth Circuit.
“Denial,” Eric Kay, a newcomer to the team who handled research, suddenly announced.
Everyone started clapping. “Cool,” Kris said, the relief evident in her voice. “Yes!”
“Wow,” Chad said. “That’s—that’s amazing. Nice parting gift.”
The vote denying the rehearing that Cooper had requested was 21–4. Diarmuid O’Scannlain, a deeply Catholic, conservative judge on the Ninth Circuit, had written the dissent. Kay began reading aloud. Obama’s political hedge was featured front and center.
“A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter,” O’Scannlain had written. “Drawing less attention, however, were his comments that the Constitution left this matter to the States and that ‘one of the things that [he]’d like to see is that [the] conversation continue in a respectful way.’ Today our court has silenced any such respectful conversation.”
Kay asked if he should read on.
“No,” Adam said firmly. “All we need to know is it’s denied.”
PROP 8 HEADED TO SUPREME COURT, read a sample headline. But Reinhardt and Hawkins had taken the unusual step of writing an opinion that concurred in the decision to deny Cooper’s request for a rehearing, but practically begged the justices not to take the case. Kay, unable to help himself, began reading what Olson would later call Reinhardt’s fit of “pique” aloud:
“We did not resolve the fundamental question that both sides asked us to; whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.”
Chad put his chin in his hand. Sandy frowned. Kris, who had been smiling just a moment before, hunched her shoulders forward and looked down at the table. No one said anything.
“Fuck Judge Reinhardt,” one of the younger AFER staffers finally muttered, summing up what everyone was thinking.
Judge Walker would not have put it so colorfully. But he too was disappointed. He had known throughout the trial that it was only a matter of time before his sexual orientation became the subject of headlines. It had crossed his mind that it might have been better if the case had been assigned to a straight judge, because as he listened to the weight of the evidence, “it seemed pretty clear where this was headed.”
“I thought, ‘Your personal life is going to get in the way and that’s not going to be helpful,’” he said.
In the end, he had wound up thinking that it was not such a bad idea to have a gay man try the case, for the same reason that it was not a bad idea for a woman to hear a sex discrimination case. But it had not been easy to sit silent during the multiple attacks on his impartiality. He had just returned to private practice as a mediator when Cooper filed his motion arguing that Walker’s ruling that Proposition 8 was unconstitutional should be thrown out, or vacated, in legal terms, because he should have recused himself from the case or disclosed that he was in a long-term relationship. “Dirty pool” is how Walker characterized the move.
“You wonder what people are going to say at work. Not only is there a gay man in our midst, but one whose sexuality is being litigated. I was at the gym one day and a friend was reading the story about the motion to vacate my order. As I walked by, I thought, ‘I wonder what’s going through his mind?’”
He had stepped up and done what he though the law and the facts required. The Ninth Circuit’s opinion was, to his way of thinking, “too clever by half,” an assessment shared by not a few legal analysts. By holding that the many benefits California granted gays and lesbians made Proposition 8 particularly irrational, Reinhardt had created a perverse incentive: States currently contemplating extending domestic partnerships or other protections to their gay and lesbian citizens might now think twice.
It was also, Walker said, a stretch to read Romer the way Reinhardt had. Circuit judge O’Scannlain, whom Walker considered a friend, had written that the panel’s interpretation of the landmark Supreme Court case was a “gross misapplication” that “would be unrecognizable to the Justices that joined it, to those who dissented from it, and to the judges from sister circuits that have since interpreted it.” Just because a court says that a right exists, as the California Supreme Court did when it cleared the way for gays and lesbians to marry, does not in and of itself make it unconstitutional for voters to amend their constitution, Walker thought. “It really doesn’t hang together.”
When he ran into Reinhardt weeks after the en banc decision at the Ninth Circuit judicial conference in Hawaii, he told him as much, saying he wished he had decided the case on broader, and in his view, more defensible grounds. Reinhardt’s response made it clear to Walker that the decision had been written in the way it had because Reinhardt was worried that if the justices of the Supreme Court took up the case, they might vote to uphold bans like California’s.
“I told him he shouldn’t have given up so easily,” Walker said. “And he said, ‘You have more faith in those people than I do.’”
THIRTY-TWO
A STAR WITNESS’S MEA CULPA
The way that Chuck Cooper found out that his star witness at trial had switched sides was by e-mail. At 12:52 P.M. on June 22, 2012, a lawyer on his team, alerted by ProtectMarriage.com, forwarded him a link to an op-ed on the New York Times Web site. It was headlined, “How My View on Gay Marriage Changed,” and it was written by David Blankenhorn.
“I thought it was pretty lousy,” Cooper said, recalling that moment. “I sure did.”
The timing was terrible. Cooper was in the midst of preparing his cert petition, asking the Supreme Court to hear the case and reverse Judge Reinhardt’s holding that Proposition 8 was unconstitutional. The Court grants review in only about a hundred of the approximately ten thousand petitions it gets each term, and it takes a vote of at least four of the nine justices. But it was hard for Cooper to fathom that the votes weren’t there, given the makeup of the Court, the sheer size of California, and the importance of the constitutional principles at stake.
The Ninth Circuit panel’s 2–1 decision against his clients had not come as a surprise, though he had been prepared for and even expected a much broader ruling. Judge Reinhardt had been smart and savvy to avoid taking the fifty-state step that Olson had urged, Cooper thought, but in the end he did not believe the panel’s reading of the Romer case would hold up.
He had also fully expected to lose his bid for en banc review, but the maneuver had produced the result he had desired. Judge O’Scannlain, in dissent, had laid out a more fiery case for Supreme Court review than had Judge Smith, whose understated conclusion—“I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests”—was not exactly a legal call to battle.
The months-long delay had also given the various DOMA challenges time to catch up to the Proposition 8 case, setting the stage for both to be considered by the Supreme Court sometime the following spring. In recent weeks, district court Judge Barbara S. Jones had ruled that the provision of DOMA that denied federal benefits to legally married gay and lesbian couples failed to meet the rational basis test in Edie Windsor’s case. And in a separate challenge, a unanimous panel of the U.S. Court of Appeals for the First Circuit in Boston had struck down the DOMA provision using what law professors call a rational basis “with teeth” analysis.
Circuit judge Michael Boudin, one of two Republican appointees on the panel and a jurist who was highly regarded in conservative Federalist Society circles, wrote the opinion. He declined to consider gays and lesbians a suspect class, citing circuit precedent, meaning that heightened scrutiny did not apply. And under a strict rational review test, he found that DOMA could survive a constitutional challenge. But because DOMA targeted an unpopular group and intruded on an area of regulation traditionally reserved to the states, Boudin wrote, Supreme Court precedent required “a closer than usual,” case-specific inquiry that lies somewhere in between the two standards. In other words, it should be subject to a rational basis “with teeth” test.
