by Becker, Jo
One played to Kennedy’s interest in international law by outlining the increasing number of countries that had legalized same-sex marriage. Another, dubbed the “red state brief,” made the case for Court intervention by arguing that millions of gays and lesbians live in deeply conservative states where they are powerless to dismantle systems of “de jure denigration” that deprive gay and lesbian citizens of legal equality “from cradle to grave.” In an episode that “echoed an era when municipalities closed swimming pools rather than integrate them,” the brief noted by way of example, “the Salt Lake City School district shuttered all non-curricular school clubs rather than allow a Gay-Straight Alliance to meet.” A third, signed by 214 members of Congress, urged the Court to find DOMA’s denial of benefits to married same-sex couples unconstitutional.
Ken Mehlman was working with Reginald Brown, who served in the White House Counsel’s Office under President George W. Bush, on a brief in the Proposition 8 case that would soon make front-page news. Quoting liberally from conservative tomes like Barry Goldwater’s The Conscience of a Conservative and Alexis de Tocqueville’s Democracy in America, the brief argued that Proposition 8 failed the rational basis test because there was no legitimate, fact-based reason to keep gays and lesbians from entering into an institution that “promotes the conservative values of stability, mutual support and mutual obligation.” Marriage, the brief concluded, provides a “protective shelter and reduces the need for reliance on the state,” and would greatly benefit the children of gay and lesbian couples.
It was signed by 131 Republican officials, many of them brand names and newcomers to the cause of same-sex marriage, including senior members of the Reagan administration like former White House chief of staff Ken Duberstein, Bush cabinet members like former Homeland Security chief Tom Ridge and former commerce secretary Carlos Gutierrez, Bush Justice Department veterans like Deputy Attorney General Jim Comey, Bush’s undersecretary of the Treasury, Bush’s godson, the former general counsel of Romney’s campaign, four former Republican governors, and former Proposition 8 defender Meg Whitman, who had once vowed to appeal Judge Walker’s decision but had changed her position after losing the California gubernatorial race to Jerry Brown.
All of those voices were important, but the one Olson strongly felt was most crucial was still missing: Verrilli’s. Justices leaning their way might feel more comfortable striking down bans like Proposition 8 if that position had the stamp of approval of another branch of government. “It adds institutional impetus and imprimatur,” explained Amir Tayrani. Conversely, if the administration failed to take the position that Proposition 8 was unconstitutional, it would give “everybody on the Court who wanted to come out against us a fig leaf, and a pretty big fig leaf at that,” Boies said.
The solicitor general is often called the “tenth justice.” Unlike other “friends of the Court,” the justices afford the solicitor general argument time. Because the office argues cases on behalf of the U.S. government and appears so often before them, the justices tend to afford its views great weight. With that in mind, it picks its battles carefully, mindful of the need to articulate a federal interest.
The office had to take a position in DOMA; Edie Windsor had sued the federal government to get her money back, and it was a federal law involving federal benefits that the federal government was still enforcing. But it was not a party to the Proposition 8 litigation, and it had declined weigh in on some notable past challenges to state laws. It took no position in the Loving v. Virginia case striking down state interracial marriage bans, for instance, or in the two landmark gay rights cases, Romer v. Evans and Lawrence v. Texas.
What interest, asked one of the lawyers whom Verrilli had brought to the meeting, did the U.S. government have in a California voter–approved ban?
Terry Stewart had prepared for this question. She and Olson had made their peace with the idea that neither could completely control what the other did. Their strategic disagreement had evaporated once the justices decided to take the case. With multiple choices now before the Court, Stewart saw no reason why Olson shouldn’t make the broadest possible argument: In her view, “It’s going to shame them out of doing nothing for us.” She still thought that Olson and Chad, in their desire to be the saviors of the gay community, had set expectations too high. But when she shared her worry about the Court with Olson, he had been empathetic. He understood why she, of all people, would feel that way, he had said. It was her victory in the California Supreme Court, after all, that the voters had snatched away when they passed Prop 8.
Now she rallied to Olson’s side with a list of precedents supporting the solicitor general’s involvement. In the 1960s, the solicitor general had argued to strike down a California voter initiative and an Akron, Ohio, city ordinance in two landmark housing discrimination cases called Reitman v. Mulkey and Hunter v. Erickson. The first was argued by then solicitor general Thurgood Marshall, whose portrait hung in Verrilli’s office and who would go on to become the nation’s first African American justice. And citing the “federal government’s special responsibility for assuring vindication of the fundamental rights guaranteed by the Constitution,” the solicitor general had argued to strike down state segregation laws in Brown v. Board of Education.
Olson, never one to mince words, was impassioned as he argued that it was no less a moral imperative that Verrilli take a position in the Prop 8 case. “This,” participants recall him saying, “is one of those ‘what did Daddy do in the war’ moments.”
Three days later, after taking the oath of office on a Bible once owned by Martin Luther King Jr., President Obama stood before a crowd of close to one million people and gave an inaugural address that drew a straight line between the iconic civil rights fights for racial and gender equality and the current struggle being waged by gays and lesbians.
“We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls and Selma and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth. It is now our generation’s task to carry on what these pioneers began.”
When he was sworn in to office in 2009, Obama had infuriated gay rights advocates by inviting Rick Warren, an evangelical pastor of a megachurch in California and an outspoken supporter of Proposition 8, to give the invocation. But four years later, on a sunny, brisk afternoon, Obama delivered his clearest and boldest declaration yet that in a country whose march through the centuries had been defined by an ever-expanding ideal of freedom, the disparate treatment of gays and lesbians could no longer be tolerated.
“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said, “for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”
Boies, who was sitting with his wife, Mary, in prime seats in the stands, felt a shiver go up his spine. Surely a man who had just given an address like that could no longer stand on the sidelines.
Chad and Boies were not yet in full panic mode when they walked up the driveway of the White House nine days later on January 30, but they were close. The day after the president delivered his stirring inaugural speech, two things had happened, neither of them good.
Cooper had filed an opening brief with the U.S. Supreme Court that quoted the president three times, drawing liberally from the preelection interview in which Obama disclaimed any desire to “nationalize” the “healthy debate” taking place in states around the country on marriage and declared that supporters of marriage bans “are not coming at it from a mean-spirited perspective,” thus undercutting the legal argument that Proposition 8 was motivated by animus. And Wh
ite House spokesman Jay Carney, asked whether the president’s speech indicated a shift from his previous position that the states should be left to chart their own course on marriage, said it did not, adding that “we’re not involved” in the Proposition 8 case.
Since the election, Chad and Mehlman had been talking about the need for the gay rights movement to become more assertive in general, and on this issue in particular. Asking the Supreme Court to overturn Proposition 8 would require the president to evolve yet again, and Mehlman had already e-mailed senior adviser David Plouffe some suggested talking points for the president to use to publicly explain why he now believed it was a matter for the Supreme Court, rather than the states, to decide:
On 14 different occasions, the US Supreme Court has held the right to marry the person you love to be one of the most important relationships in the human condition.
This right is particularly personal to me as the child of parents who, prior to the Supreme Court’s landmark decision in Loving v. Virginia in 1967, would not have been recognized as married in at least 16 states.
My parents were married in Hawaii, but if they had moved to a state like Virginia or Maryland at this time, their marriage would not have been recognized. Today, it seems inconceivable that such discrimination was tolerated and widespread.
My parents’ situation is not unlike the one faced by loving gay and lesbian couples legally married in states like New York or Maryland, or here in the District of Columbia.
In the wake of Carney’s unhelpful comments, Mehlman offered Chad some typically blunt advice. “This is not about friendship,” Mehlman recalled saying. “It’s about interests. The gay community raised a lot of money for Obama, and now they want something in return. No more beaten down, begging for scraps at the table.”
Chad had fired off a press statement, then privately asked for the meeting at the White House. “In the contemporary challenge to the Defense of Marriage Act, the law barring federal recognition of lawful same-sex marriages, the Justice Department has made clear its belief that that odious law defies our Constitution’s promise of equality,” his public statement read. “As the Justices deliberate in a building that bears the chiseled words ‘equal justice under law,’ we hope the White House will ensure that its thinking in the Perry case—and the voice of a decisive majority of Americans—is heard loud and clear.”
But time was running out when Chad and Boies sat down in the West Wing with Valerie Jarrett, the president’s friend and adviser, and White House counsel Kathryn Ruemmler. The Supreme Court was set to hear arguments in the two marriage cases on March 26 and March 27, and the solicitor general had only a month left to make a decision.
Olson, in e-mail exchanges with Chad prior to the White House meeting, had advised him to stress the moral argument, the president’s legacy. Chad had forwarded the exchanges to Kristina, asking for her thoughts. Absolutely not, she said. The president and his people were perfectly capable of assessing his legacy on their own. Stress the law, and why bringing in the solicitor general would legally make a difference.
Boies, following that advice, began by laying out those reasons, at one point becoming teary-eyed. He spoke about the inaugural speech in the context of the case. Now that the president had said what he said, Boies argued, “silence would not be considered neutral.” It would, in fact, be deeply harmful, sending a signal to the Court that even the Obama administration believed that the position that gays and lesbians have a fundamental right to marry was a bridge too far. It could cost them the case.
“It’s already being used against us,” Boies said, citing Cooper’s briefs.
It had already been decided that Olson alone would be arguing before the Supreme Court. To have a conservative make the case for same-sex marriage to the justices had been the point from the outset, and Chad was insistent. But Boies did not know that. On press calls, Olson had said it was up in the air. (“It’s awkward,” he explained in a private aside.)
If the solicitor general jumped in, Boies now told the two women, Olson would have to give him ten minutes of his time, which meant that he, Boies, would not have a chance to argue.
“And there’s no case in my entire life I’d rather argue than this one.”
Both White House officials seemed impressed by their pleas. But further lobbying via the press, Boies recalled Jarrett saying before they took their leave, would not be helpful. This was a legal decision, not a political one.
The easiest course for Solicitor General Verrilli to take would have been to give the Proposition 8 case a pass. Arguing that state bans like California’s were unconstitutional complicated the administration’s case against DOMA.
It was possible to make a logical argument that Congress had intruded on an area traditionally left to the states in passing DOMA, while simultaneously arguing in the Proposition 8 case that states cannot do whatever they want in the marriage arena: The Supreme Court had demonstrated that there was a constitutional floor when it struck down state laws banning interracial marriage in Loving v. Virginia.
The bigger hurdle was a strategic one. Verrilli’s view, expressed during robust internal debates, was that the department could not just go gliding down this path in order to reach a happy place without first understanding the risks.
DOMA was by far the easier lift of the two cases. The justices did not have to declare a nationwide right for same-sex couples to marry; they simply had to find that the law unconstitutionally undermined a democratic process that had led some states to recognize the marriages of same-sex couples by treating those marriages differently for no good reason. The remedy was relatively uncontroversial: Already married couples would simply start receiving benefits.
What happens, Verrilli had pressed Olson during their meeting, if you prevail on your broader argument? What is the remedy?
“We said it wouldn’t be like Brown v. Board of Education, where you had to redesign entire school systems,” Terry Stewart recalled. “It would just be a matter of county clerks issuing licenses. And then Don said, ‘Yeah, but I’m thinking about county clerks in Mississippi.’”
It was clear he was concerned that a fifty-state ruling finding a constitutional right for same-sex couples to marry had the potential to create the kind of backlash that could give some justices pause. If Justice Kennedy became convinced that the only way he could strike down DOMA was to adopt a rule of law that would require striking down same-sex marriage bans across the country, the worry was that he might get cold feet. He might also see the administration’s entry into the case as political. Either way, as Attorney General Eric Holder later put it, “we potentially run the risk of losing him.”
On the other hand, the justices were smart people. They understood that the position the Justice Department had already taken in the DOMA case, that laws targeting gays and lesbians deserved heightened scrutiny, made it difficult for bans like Proposition 8 to survive a constitutional challenge. There were ways for Verrilli to dance around that—deflecting questions as hypothetical and best left for another day—but the real question was, should he?
Olson had sent over a memo, prepared by Terry Stewart at Verrilli’s request, outlining the parallels between the arguments used to defend interracial marriage and same-sex marriage bans. They were, Verrilli told colleagues, striking.
The proponents of Proposition 8 argued that allowing gays and lesbians to marry could deinstitutionalize traditional marriages. The Alabama Supreme Court, in an 1877 case, opined that the state must “guard” against the “disturbances” interracial marriage would produce. The proponents of Proposition 8’s argument that the impact of allowing gays and lesbians to marry was unknown was also echoed in some of the interracial marriage ban cases: In Loving v. Virginia, for instance, the Commonwealth argued that the Court should defer to the wisdom of the states in determining the “desirability of a policy of permitting or preventing such alliance
s,” given the “conflicting scientific opinion upon the effects of interracial marriage.” It also referenced the state’s interest in promoting an optimal child-rearing environment, noting the burden “half-breed” children faced in being accepted by society.
Verrilli read Martin Luther King Jr.’s “Letter from Birmingham Jail,” responding to criticisms by fellow black clergymen that his demands were premature and ill timed. The oppression of African Americans was beyond compare, but the civil rights leader’s words, about how one can only fight a “degenerating sense of ‘nobodiness’” for so long before “the cup of endurance runs over,” resonated. He lingered over the lopsided suicide statistics that charted the despair felt by many gay, lesbian, bisexual, and transgendered teens. He followed his own heightened scrutiny argument to its logical conclusion. And then he shared his recommendation with Holder: The government should take a stand.
Holder and Chad went way back; Holder had served on the board of Rob Reiner’s foundation. He, like Verrilli, believed that there were “collateral consequences” to the department’s decision that could not be ignored. “I mean, Chad is right. The way a gay boy or young gay girl view themselves is similar, again, to the way African Americans in 1953, ’52, saw themselves when they had to deal with this notion of ‘separate but equal.’
“Staying out was just not consistent,” Holder said, “with where we wanted to be tactically, legally, or morally.”
Verrilli, he believed, had made the right decision.
President Eisenhower famously read and edited the solicitor general’s amicus brief in the Brown v. Board of Education case. That did not happen in Hollingsworth v. Perry. But at a meeting in the Oval Office to go over the Justice Department’s recommendation, President Obama did play an instrumental role in shaping the final product.
