by Becker, Jo
Olson’s brief stood out for two reasons. The Supreme Court’s guidelines warn lawyers in no uncertain terms to “focus only on the question or questions presented in the petition that was granted. Do not deviate.” And generally, lawyers in Olson’s position defend the grounds upon which a lower court decided in their favor.
Because of the narrow way the Ninth Circuit had decided the case, only one question regarding the merits of Proposition 8 was presented to the Court: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”
But the question that Olson set out to answer first, before any other, was a different one: whether the Constitution’s due process clause prohibited states across the country from denying the fundamental right to marry to gays and lesbians—the very question that the Ninth Circuit had said should not be decided in the Proposition 8 case.
“This case is about marriage, ‘the most important relation in life,’” Olson’s brief opened, “a relationship and intimate decision that this Court has variously described at least 14 times as a right protected by the Due Process Clause that is central for all individuals’ liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one’s place in society; and an expression of love, emotional support, public commitment, and social status.”
An earlier version, drafted by some of the younger appellate lawyers on the team and approved by Boutrous, had emphasized the discriminatory nature of Proposition 8, both because that was the equal protection argument the Court had instructed them to make and because it offered the Court an easier, more incremental way to decide the case; if the justices were so inclined, they could find that Proposition 8 was motivated by prejudice while leaving open the possibility that bans in other states in fact did serve some legitimate governmental purpose.
Olson fully understood the power of the equal protection argument. The final version of the brief quoted the Court’s most famous equal protection decision, Brown v. Board of Education, on its very first page, declaring that Proposition 8 “‘generates a feeling of inferiority’ among gay men and lesbians—and especially their children—‘that may affect their hearts and minds in a way unlikely ever to be undone.’”
“But he felt strongly, in his gut, that he wanted to lead with due process,” Boutrous recalled.
Due process was the basis of Justice Kennedy’s decision in the landmark Lawrence case striking down laws criminalizing sodomy. Resolving the Proposition 8 case on due process grounds also obviated the need for the Court to declare a new suspect class, something it had not done since 1972; when the government infringed on a fundamental right, the Court applies a strict scrutiny test regardless of the nature of the group involved. Most important, it allowed Olson to talk about the importance of marriage, the right at stake, to his clients and people like them, and deciding the case on that basis would require the justices to issue the nationwide decision that he wanted.
The case was certainly about the right to be treated equally, to not be singled out and relegated to a lower rung in some voter-imposed caste system. But fundamentally what their clients wanted, in Olson’s view, was to be freed from government intrusion into their lives so they could marry one another. “Ted wasn’t going to shy away from that argument just because it was a fifty-state decision,” Boutrous said, “because his view was that it ought to be.”
The fundamental right to marry was a theme the brief returned to repeatedly. “Proponents accuse Plaintiffs (repeatedly) of ‘redefining marriage.’ . . . But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into ‘responsible procreation.’ In their 65-page brief about marriage in California, Proponents do not even mention the word ‘love.’ They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right.”
As the moot got under way, however, his inquisitors quickly zeroed in on the potential problem with Olson’s framing. If the fundamental right to marry was the right to marry the person you love, what was the limiting principle?
Olson had asked Lisa Blatt, an attorney for Arnold & Porter who had argued more than thirty cases before the Supreme Court and won all but one of them, to play the role of devil’s advocate, which she did now with zeal.
“Could I marry my sister?” she asked.
The government might well have a good and constitutionally justifiable reason to prohibit incest, he parried. Blatt came right back at him: “Okay, we won’t have sex. I want to marry my sister. I love her.
“I think under your view,” she pressed, “you have a constitutional right to marry anyone.”
This slippery slope question had come up at every moot court, usually framed around whether polygamy bans were unconstitutional. Terry Stewart had suggested saying that the right to marry the person one loved was the right to marry one person, not two. Olson had toyed with a number of other responses, including that prohibiting polygamy did not single out a disfavored class and served important enough governmental interests to meet the strict scrutiny test, such as preventing the exploitation of women. But given that spending even a minute on this issue would eat up one-twentieth of his time, his plan was to brush past it as quickly as he could, then look to a friendly justice to redirect the argument. In the end, he just did not feel as though it was going to be dispositive.
“This court isn’t going to decide this case on polygamy grounds,” he’d said during a previous session. “It could be time-consuming and a little like quicksand, so I don’t want to stay there.”
Olson swatted away other questions with ease. He had three words for the state’s interest in promoting procreative relationships: “Turner v. Safely,” the holding by the Supreme Court that the fundamental right to marry could not be denied to prisoners, who by virtue of their incarceration were incapable of procreating. Pressed on whether he was simply arguing over a “cocktail conversation—when you introduce someone at a party you can’t say, ‘This is my wife,’” he shot back that it was not simply a word.
“The institution of marriage is understood and appreciated in this country. It is like the word ‘citizen.’ You could give every individual the right to vote, the right to travel, the right do all the things that citizens can do, and withhold from them the right to call themselves citizens, and they would know, everyone would know, that’s second class. That’s not as good as being a citizen.”
“So, it feels better to be married,” Blatt pressed, trying to be as acerbic as possible.
“And it would feel better to be able to drink out of the same drinking fountain, to go to the same schools, and marry someone of the same race,” he retorted.
“I love the way you argue,” said Blatt, critiquing him afterward. “I’m not sure that I buy your answers with respect to polygamy and incest. I don’t know that it’s going to matter, in the end, to Justice Kennedy. I’m very moved by everything you said. It just comes down to—”
She paused. “What he thinks.”
In Olson’s view, the first words in an oral argument are the most likely to be remembered. Kaplan shared that assessment, which was why, when it was her turn, she began with the less than stirring declaration that “this is an as-applied challenge.”
Olson had framed his case as a landmark, explicitly asking the Court for a Brown-like decision by quoting the case on the opening page of his brief. “He’s shooting for the stars,” she had thought, reading it. Kaplan had the opposite strategy. She wanted the Court to believe that hers was a run-of-the-mill, easy-to-decide estate tax dispute, nothing historic about it. She had even given the Court the out of declaring the law unconsti
tutional “as applied” to her client and the estate tax, rather than filing a facial challenge to the law that would require them to find the denial of all benefits to any legally married same-sex couple unconstitutional.
She and the other lawyers on her team privately joked that Edie was “already married, already gay.” The only question the Court need decide was whether the federal government was justified in treating Edie and Thea’s marriage differently when it taxed her client on property she had inherited from her wife, based on a law that insisted they be treated as legal strangers.
If Olson’s challenge was to convince the Court that the fundamental right to marry the person of your choice extended to gays and lesbians, but not, as Blatt had put it, to “my cat,” the challenge Kaplan faced was that there was no fundamental right to a tax break. Clement, in his brief, had argued that Congress had plenty of reasons to pass DOMA, including a desire to save money by denying gays and lesbians survivor benefits, that could pass constitutional muster under a strict rational basis test.
“It’s a federal benefit,” McGill challenged her, “so there is a federal interest in determining who gets a federal benefit.”
“We could all agree,” she protested, “that the federal government could not say we are only going to give estate tax relief to couples married in the springtime.”
What about Clement’s argument that the federal government had an interest in promoting relationships that could produce children?
“It’s hard to see,” she said.
No babies, no tax base, came the rejoinder.
“DOMA had nothing to do with that,” she said.
“How do you explain the child tax credit?” McGill pressed.
She answered the questions one by one, which was where the critique began once the session came to an end. She had a good voice, and a good tone that she should seek to maintain, Blatt said. “Don’t look even remotely bothered by any question. You look at them and say, ‘More, more, more.’ The minute they think they have you, you are hosed.” But, she added, Kaplan needed to avoid getting bogged down in the weeds. “You gotta get your affirmative case out. You’re not there to just answer questions.”
At another moot court session, Kathleen Sullivan, one of the appellate lawyers whom Olson had originally approached before teaming up with Boies, advised Kaplan to “de-gay” the case. Sullivan’s view was that Kaplan should emphasize the Supreme Court decisions that struck down laws that singled out hippies and the disabled, despite the fact that neither group was considered a suspect class, over the Court’s landmark gay rights decisions in Romer and Lawrence.
Blatt gave Kaplan the exact opposite advice. The DOMA case was about, as Olson put it in his opening, “fencing” gay people off, Blatt said. She needed to be more passionate on that front. “I did not like your opening. If you want to keep it about estate taxes, fine. But I’d use some of Ted’s lines.”
Kaplan, as the first-timer of the group, took it all in, but she was feeling whipsawed. She would incorporate some of the suggestions, but at the end of the day it was her case, and she wanted to leave a little daylight between DOMA and Prop 8. If Olson won, she would invariably win too. But if he lost, she did not want to go down with him.
The best piece of advice came from Olson himself: You can’t listen to everyone, he said. Pick a few people you trust, and tune everyone else out. “You were great—you really got it,” he said, giving her a hug. “Enjoy it. It’s a big fucking deal.”
To everyone else, Olson announced, “All right. I’m going back to my cave.”
“Look at the camera,” instructed Anita Dunn, Hilary Rosen’s partner and, for the better part of Obama’s first year in office, his White House communications director. “Smile for me.”
Chad obliged. Behind him was a realistic-looking backdrop of the Capitol. A camera was rolling in the mock television studio SKDKnickerbocker used for media training.
“Hmmm,” she said, looking at the monitor before delivering her pronouncement. “You gotta get new glasses before Sunday.”
With what spare time? Chad thought. It was already Thursday, and with the first of the two arguments now just five days away, he had a full plate, and no one at home to help. He and Jerome had split up over the holidays. Jerome, who had left a big job to move across the country with Chad, had struggled to carve out his own identity living in a new town where a person’s line to power was what counted, where he was Chad Griffin’s boyfriend. And Chad’s all-in approach to his job and constant travel had not helped. To live in Chad’s world was to live in his vortex, and in the end it had proven too much. They remained friends, but the breakup had been hard on them both, and Chad did not much like to talk about it. After a brief trip home to visit family in Arkansas and regroup, he had come back and buried himself even deeper into work.
For days, Chad had been doing his own version of moot courts, to prepare for the multiple network and cable television appearances on his schedule. As the president of the largest gay rights organization in the country, he was a frequent guest on news programs, and by now was an old pro. But with the first of the two arguments just five days away and the Sunday talk shows just around the corner, the stakes suddenly seemed exponentially higher. What if a justice was listening? What if he said the wrong thing? He’d been waking up most mornings at around 2:30 A.M., mind racing with all the things he still needed to nail down.
As Boutrous had said earlier that afternoon, “We’re in a different realm.”
The smallest of missteps now took on crisis proportions. That morning, a nonprofit California-based gay rights group had sent over an advance copy of an ad it planned to run in the Washington Post, with a picture of Clarence Thomas and his white wife and a reference to the Loving decision. “Clarence Thomas and Virginia Thomas could not have married in the state of Virginia where they now reside,” it said. Kill it, Olson had urged. The entire team was closely monitoring another situation that threatened to take them off message: A blogger had somehow got his hands on an e-mail that Judge Walker had sent to a Gibson Dunn partner he knew, asking whether Olson thought it would be an unwanted distraction for him to attend the oral argument, along with a response in which the partner had said that he and Olson had reluctantly concluded that it would.
Earlier that afternoon, the four plaintiffs had done a press conference call. They were still in California, due to arrive on Sunday. For years, national reporters had focused largely on the Olson-Boies story line, but now the plaintiffs were fully in the spotlight. Multiple television crews had been to both Kris and Sandy’s home and Paul and Jeff’s, and some forty reporters had joined that afternoon’s call, including representatives from all the major networks.
“There is an opportunity here for the court to send a message that who we love is important and we should be treated equally under the law,” Kris told the reporters.
“We would expect the Court to step in and right these wrongs,” Jeff added.
All four plaintiffs had said similar things in the past, but as soon as they hung up, Boutrous had turned to Chad, an unhappy look on his face. “Two things I did not like,” he said. “We don’t want them saying what the Court should do, ‘the Court should send a message,’ ‘we would expect the Court to solve this problem.’”
The previous week Boies had broken the team’s cardinal rule, which was to never, ever talk about how individual justices might vote. During a sit-down with USA Today’s editorial board, he had predicted that it would not be a “5–4 decision” and made public his private concern about how old the justices were. Most, he had said, had grown up in an environment of “extreme hostility to homosexuals,” and while they were supposed to set that aside, “it’s not an easy task.”
Cooper, who had indeed been less than pleased with Eastman’s “second-best” comments about adoptive families like Justice Roberts’s, had been happy to see that his side was not
the only one with foot-in-mouth disease, while Olson had sent Boutrous to have a word with Boies. Time had been set aside for members of the legal team to prep Boies before he appeared on Meet the Press that Sunday. This was not a time for loose lips.
“Talking about the Court is dangerous,” Boutrous said, once they got Jeff back on the line. “We don’t want to be presumptuous.”
Chad had already done his prep session with the lawyers. He had his own balancing act to do. He had to hammer away on the inevitability factor, but, as Boutrous had warned him, “steer clear of suggesting that politics affects the justices.” He was sure to be asked about Roe v. Wade and the shadow it cast over the case, given that the New York Times was working on just such a curtain-raiser piece for the Sunday paper. Roe–based fear of potential backlash was, in Mehlman’s view, “the most potent message pushed by the other side in the final weeks,” and it needed to be addressed. Chad needed to find a way to say that gays and lesbians were not asking for new right and that allowing two people who love one another to marry was unlikely to inflame passions in the same way that the Court’s decision to allow women to terminate pregnancies did, but to do so in a way that did not throw the pro-choice community under the bus.
Chad had staff pull up questions about same-sex marriage that his interviewers had asked in the past. He had drawn up an elaborate “message box,” designed to allow him to pivot to the points he wanted to make no matter what question came his way. If remembering all that wasn’t difficult enough, now Rosen and Dunn gave him dozens of stylistic debating pointers.
“Half the game is how you look,” Rosen told him, admonishing him to stop fidgeting and waving his hands around. “The other half is what you say. Television is 55 to 60 percent visual. It’s so important not to be all beady-eyed and scrunchy-faced.”
He nodded. She continued. “Do not nod. It signals nonverbal agreement.” No “ums.” Use a bridge like, “What we’re really looking at here is.” When your opponent is saying something, keep a bemused expression on your face, “like, ‘You’re not getting to me, but you are just so out there.’” Dunn chimed in. “If there is cross-talk, most people think viewers will listen to them if they speak higher and faster. They are wrong.” Speak lowly and slowly, in what Dunn called a “Mommy tone of voice, the one she uses when she wants you to pay attention because she’s really serious.”
