by Becker, Jo
And while he had lost North Carolina, fears that his support for same-sex marriage would hurt him had proven unfounded. Black voters had turned out in force, and an Edison Research exit poll found that 51 percent supported same-sex marriage. Obama won the Catholic vote and crushed Romney among Hispanic voters; exit polls showed that both groups favored same-sex marriage by sizable margins.
“It was the bomb that did not go off,” Dan Pfeiffer, Chad’s friend and a top adviser to the president, said afterward. Obama’s decision to come out in favor of same-sex marriage so close to the election had, Pfeiffer admitted, given him “a bit of a heart attack,” but in the end, “the fact that it was a nonissue is maybe the most gratifying thing of all.
“Society has just changed.”
Indeed, it was a net positive. It did little to motivate Romney’s base; in exit polling of religious conservatives done by Republican operative Ralph Reed, the founder of the Faith and Freedom Coalition, abortion showed up among their top five concerns, but same-sex marriage did not.
Obama’s endorsement did, however, motivate the president’s base. Exit polling done on behalf of the media found that three out of four Obama voters said his embrace of same-sex marriage made them “much more” likely to support him. Postelection analysis would credit large youth turnout in four crucial swing states with helping secure the president’s reelection. In Florida, for instance, Obama won 66 percent of voters under the age of thirty. Across the country, LGBT voters also turned out in numbers, comprising 5 percent of the electorate, up from under 4 percent in 2008, and they broke even more decisively for Obama this time around, giving him 77 percent of their vote.
“AP is reporting that Maine makes history for marriage equality,” a staffer announced.
“Woohoo,” Chad cheered. “That’s state number one.”
“The Washington Post is reporting that Maryland passes same-sex marriage,” said another staffer.
“The Iowa judge looks like he’s going to hold on,” someone else said.
On Twitter, real estate mogul and television personality Donald Trump was seething over Obama’s reelection, calling for a revolution.
“We just had it,” Chad said. “A gay revolution!”
Someone went to fetch champagne.
“So much better than 2008,” said Fred Sainz, the organization’s vice president for communications and marketing.
“Two thousand eight was the most depressing election,” Chad agreed. “It was like Obama wins, gays lose everything. This year, it’s Obama wins, gays win everything!”
“There are still some states left,” one of the political staffers said.
“I know, I know.”
But Chad could not summon his usual pessimism as he read over a press release, entitled “Landslide Victory for LGBT Equality Up and Down the Ballot,” that had been prepared for release later that night.
The National Organization for Marriage had just sent out an e-mail of its own, a plea for money. “Help us spoil gay activists’ election night celebration parties,” it read.
“Fuck you, NOM,” Cole-Schwartz said.
On the television, Romney was conceding. Cleve Jones had posted a photo to his Facebook page of people celebrating in the streets in San Francisco.
“Look at the Castro right now,” Chad said, showing it around.
And then Obama was on television, talking about the “promise of our founding.”
“It doesn’t matter whether you’re black or white or Hispanic or Asian or Native American or young or old or rich or poor, abled, disabled, gay or straight. You can make it here in America if you are willing to try.”
The promise of Obama’s presidency, to end the petty grievances that had, as he put it in his first inauguration speech, “strangled our politics” and turned the nation into a polarized quilt of red and blue states, was now threadbare. The “fierce urgency of now” had given way to expedient incrementalism, in the face of implacable opponents.
But for Chad, the astonishing sense of promise that had swept the country four years earlier, the promise of an America where anything could happen, where a black man with a name like Barack Obama could be elected president of the United States of America, had finally been fulfilled. Four years ago, before that crowd in Grant Park, with Chad watching from a hotel room in San Francisco, Obama had declared his victory an answer, an answer to cynicism, an answer to those who believed that “this time must be different, that their voice could be that difference,” an answer that had “led those who have been told for so long, by so many, to be cynical, and fearful, and doubtful of what we can achieve, to put their hands on the arc of history and bend it once more toward the hope of a better day.”
Tonight, unlike last time around, those words rang true to Chad.
Shortly before 3 A.M., reports from the field in Washington and Minnesota made it official. By a vote of 53.7 percent to 46.3 percent, voters in Washington had approved the law legalizing same-sex marriage there, and 51 percent of voters in Minnesota had voted to reject the proposed constitutional ban.
Four for four, plus they had saved the judge in Iowa.
“Talk about a great atmosphere going up to the Supreme Court,” Chad said, deep bags under his eyes but a smile on his face. “Wow.”
THIRTY-FOUR
“DON’T THEY HAVE A RESPONSIBILITY TO ACT?”
At 9:30 A.M. on the morning of December 7, 2012, the nine justices of the Supreme Court gathered in a tasteful conference room just off Chief Justice Roberts’s office. They ranged in age from fifty-two to seventy-nine. There were six men and, for the first time in history, three women. Six were Catholic, and three were Jewish. One was black, another Latina, and two were Italian American. All but one had graduated from Harvard or Yale law schools; the holdout had graduated from Columbia University law school. Two of the three women were unmarried, the third a widow.
Chief Justice Roberts, along with Justices Antonin Scalia, Samuel Alito, and Clarence Thomas made up the Court’s conservative wing. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan made up the court’s liberal wing. And then there was Justice Kennedy, who more often than not determined which wing won in controversial cases.
The question they faced was momentous.
In addition to the DOMA challenges, should they grant cert and agree to hear the Proposition 8 case, since renamed Hollingsworth v. Perry? In other words, had the time come for the Court to step in and decide the question of same-sex marriage for the country?
The justices vote yay or nay; they do not discuss the merits of a case until after oral argument. Per tradition, the newest justice, Elena Kagan, kept track of what was decided; clerks were strictly banned from these deliberations.
The history of the Supreme Court is replete with moments of great courage.
What is less widely appreciated is that those moments often followed years of half-measures or outright ducking. In the name of preserving the credibility of an institution that can claim no democratic mandate when it countermands the will of the majority in the name of the Constitution, the justices at times have made a virtue of not deciding, or at least not deciding all at once.
The Court, for instance, did not desegregate the South in one fell swoop. In a 1950 case called Sweatt v. Painter, the Court held that a black student must be admitted to a whites-only law school in Texas because the separate law school for blacks set up by the state was not, in fact, substantively equal. It would take another four years for the Court to issue its Brown v. Board of Education ruling striking down the separate but equal doctrine as unconstitutional in all instances.
In the wake of the Brown decision, faced with massive resistance in the South to the Court’s integration decrees, the Court refused to hear a constitutional challenge to Virginia’s interracial marriage ban in a 1955 case called Naim v. Naim. Though private pape
rs make clear that a number of the justices believed the ban to be unconstitutional, Justice Felix Frankfurter’s argument for inaction ultimately prevailed: “To throw a decision of this court, other than [one] validating this legislation, into the present disquietude,” would, he worried, thwart and “very seriously embarrass the carrying out” of its school desegregation orders. It would take another twelve years for the Court to take up and strike down antimiscegenation statutes in the Loving v. Virginia case.
The country, as evidenced most recently by November election results, was in a very different place on same-sex marriage than it had been when the Proposition 8 case was first filed. Nine states plus the District of Columbia now recognized same-sex marriage, versus just two when the Proposition 8 case was filed, with the result that nearly fifty million Americans now lived in states where gays and lesbians could marry.
Still, the issue was judicial nitroglycerin, hurtling right at the fault lines of a deeply divided Supreme Court, at a time when the percentage of Americans who viewed the institution favorably had sunk to a quarter-century low. While the Court was still the most popular of the three branches of government, only 52 percent viewed it favorably, down from a peak of 80 percent in 1994.
Before he stepped down from the bench, Justice David Souter had written a dissent that was viewed by some Court observers as a warning on same-sex marriage, though he never explicitly mentioned the subject and the case was wholly unrelated. When deciding whether to recognize a right “unsanctioned by tradition,” Souter counseled in 2009, a few months after the Proposition 8 case was filed to front-page fanfare, “the beginning of wisdom is to go slow.”
“We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally,” Souter wrote. “The broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary.”
In New York, Edie Windsor waited for the justices to render their cert verdict with her lawyer, Robbie Kaplan. The assumption was that the Court would grant cert in one of the DOMA cases, given that a failure to do so would mean that a federal law was constitutional in some circuits but not in others. There were four to choose from, but both Edie and Kaplan had a feeling theirs would be the one.
Less than two months earlier, the U.S. Court of Appeals for the Second Circuit had ruled in Windsor’s favor, becoming the first federal appellate court in the country to agree with Judge Walker that laws that targeted gays and lesbians deserved heightened scrutiny. Kaplan, who was at home when she heard, called Edie.
“We just won!”
The first thing Edie had thought to do was to tell Thea. There were days, fewer now but still frequent, when Edie would be sitting at her computer and turn around to tell Thea something, only to realize that she was gone. She had hung up the phone, and then, rummaging through a drawer for something, had come across a handwritten note. It must have been written long before Thea died—at the end she could not hold a pen—maybe when Edie had quit smoking.
Congratulations Darling
You DID It!!
PS I AM good for you.
It was like she knew, Edie said, when she phoned Kaplan back to tell her.
“This is why I believe in God,” Kaplan, a practicing Jew, said she thought.
Across the country in California, Adam, the plaintiffs, and the AFER team maintained a similar vigil, obsessively checking SCOTUSblog.com, a Web site devoted to Supreme Court news. The justices meet weekly to discuss cases in “conference.” The justices had been distributing the marriage cases for conference since before the election, only to emerge with no decision on which, if any, they would take.
Chad, who had traveled out west to be on hand for the decision, was “more nervous than a bride at the altar whose husband is late,” said Fred Sainz, his vice president and right-hand man at the Human Rights Campaign.
Chad had accepted that the Supreme Court was unlikely to rule more broadly than the Ninth Circuit had already done—meaning that the most likely outcome was a ruling that would apply only to California—but Olson still thought a fifty-state ruling was a possibility, and that prospect remained tantalizing to both Chad and the plaintiffs. The justices had it within their power to turn a patchwork of licensing laws into a national civil right, but would they?
“Can’t someone knock on the door and ask them what is going on?” Chad said to Adam, only half joking.
“If they recognize that there’s discrimination,” Jeff asked earnestly, if somewhat naïvely, “then don’t they have a responsibility to act?”
The waiting game was made all the more excruciating by the fact that if the Supreme Court declined to review the Ninth Circuit’s decision, then the stay that the Ninth Circuit imposed would be lifted, the state would cease enforcing Proposition 8, and same-sex marriages in California would resume. Elaborate plans had been put in place to capitalize on that media opportunity by having at least one of the two couples get married immediately. Jeff and Paul had gone back and forth about whether they wanted to join Kris and Sandy by tying the knot immediately. It might be nice, twenty years from now, to celebrate their anniversary on what would also be a historically important day. But Adam had urged them to wait. The wedding would be as much for the cameras as it was for the couple, and unlike the two women, they had never had a proper ceremony. Kris and Sandy had nixed an AFER-hatched plan to hold a celebrity-studded reception in Los Angeles; San Francisco City Hall would do just fine. But it was still stressful to be on standby for a wedding that had to happen at the drop of a hat, especially since Kris had recently taken on a big new job as the executive director of a Washington, D.C.–based early childhood education foundation that had her traveling between the two coasts.
Every time the Supreme Court pushed off the decision to the next conference, Kris and Sandy had to resend “save the date” e-mails to all their friends, and figure out all over again how to corral the twins, Tom and Frank, for a ceremony that no one really wanted to take place: They would all rather that the Supreme Court take the case, even though that would delay their own weddings, so that millions across the country could potentially share in the right to marry.
“I’m anxious and miserable,” Kris told Jeff after one stakeout resulted in no orders yet again. “It’s like—just do your job. Every time we think we know what could happen there is some new wrinkle.”
“Good,” Sandy said, trying to relieve the tension after another episode. “My hair looks like shit.”
Then she set about canceling the plane reservations she had made to fly in her boys, and contemplated aloud what she should tell the thirty-plus people who were on standby to attend a quickie wedding that day.
“Dear Family,” she said. “You won’t have to come see us get married.”
Thanksgiving had offered everyone a brief respite. In Burbank, Paul took all of his frustration out by baking for two straight days: a lemon icebox pie from the lemon tree in their yard, a heaven/hell peanut butter and chocolate angel food cake, and, in honor of the holiday, a pumpkin pie. Jeff ate way too much of it, out of nerves.
In San Francisco, all four boys watched football with Kris’s extended family, devouring the turkey, ham, scalloped potatoes, and fixings that Sandy had laid out on the dining room table. Kris’s mom commented on the recent landscaping work they had done. Her stepbrother, a born-again Christian who in his younger years had traveled the world evangelizing, distributing Bibles in China and putting on religious plays in Africa, asked her how the case was going. He had once opposed same-sex marriage, even knowing that Kris was a lesbian, but had come to believe he was wrong to think it was his religious duty to “protect marriage” from people like his stepsister. Spencer and Elliott show
ed off new, matching Swedish flag tattoos they had gotten in honor of their heritage, causing Kris to just shake her head. Sandy showed a friend who had stopped by the dove gray St. John knit dress she had picked out to wear to the wedding that might, or might not, soon be taking place. Hair up? she asked. Or down?
Hopefully the Supreme Court would just take the case, she said. Not only would that get them all to where they wanted to go, but, she joked, “It will give me more time to drop a few pounds before the wedding.”
Cooper’s cert petition and Olson’s response had been filed months earlier. Cooper, in asking the justices to overturn Judge Reinhardt’s decision, had cited a 1982 Supreme Court precedent called Crawford v. Los Angeles Board of Education. In that case, which involved a busing desegregation plan, the justices held that just because a state chooses to do “more than” the Constitution requires, does not mean it may never recede. Reinhardt’s decision to skirt the question of whether the U.S. Constitution contained a right to marry allowed Cooper to argue that Californians could withdraw from gays and lesbians the ability to marry, so long as they had some legitimate reason for doing so.
Olson disputed that he was asking the Court for more than the Constitution required. Cooper’s argument that California’s generous domestic partnership law meant that the state’s “gay-friendly” voters could not have acted out of animus had been dismissed in a biting footnote: “There is no ‘Mostly Equal Protection Clause’ or ‘Separate but Equal Protection Clause.’”
But Olson had tried to walk a fine line, opposing Cooper’s request for Supreme Court review, but not too strenuously. The case did offer an “attractive vehicle” for the justices to consider the issue, he allowed, coming before the Court with the “most comprehensive record ever developed in a case challenging a restriction on the right to marry.”
