Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  Paul let out big breath.

  “So this is the moment,” Jeff’s mom said.

  “This is it,” he said.

  “We’ve all been waiting for,” she finished. She smiled. “You both look handsome.”

  Kris and Sandy were the last to arrive in the lobby. They had both tossed and turned all night. The AFER staffers began herding everyone outside, into the dark and onto the bus.

  “Let’s go change the world, boys,” Paul’s sister, Maria, said.

  “This isn’t weird,” Sandy said as the bus pulled away from the curb.

  Everyone laughed.

  “Good morning, D.C.,” she continued, looking out the window. “Sleeping in? Enjoying yourself?”

  The bus dropped them in an alley that led to the back door of Chad’s apartment, so the television crews stationed out front would not swarm them. Inside, Kristina, who had taken the day off of work at the White House to attend the arguments, was sitting on Chad’s couch, going over his press statement, like the old days.

  Neither had slept much. Kristina had kept waking up in a panic, afraid that she had overslept. Chad, Adam, and Matt McGill had e-mailed one another well into the early morning hours. “Who’s still awake?” went the joke.

  Chad had sent Olson an e-mail. “As you know, the world will be watching. [The Court] is already surrounded by media from around the globe. BUT behind all that there is some kid, alone in his room in America . . . who will hear the message that he is equal, and that he too can someday grow up with the same hopes and dreams as his straight brothers and sisters,” he wrote. “You are my hero.”

  The AFER staff had arranged for coffee and breakfast snacks, which were laid out on the kitchen counter. The apartment was lovely, with high ceilings, but it had an unlived-in feel. Chad still hadn’t gotten around to unpacking a lot of boxes from the move out from Los Angeles, or even purchased a dresser. The guest room consisted of a mattress on the floor.

  Paul peeked into his refrigerator and cracked up. “Yup, it’s completely empty,” he told Jeff. Turning to Chad, he added, “We had a big joke about that.”

  “You guys want to watch a movie?” Chad said facetiously. “I’ve got some sweatpants. Sweatpants and hoodies.”

  Lance Black sent a photo from outside the Supreme Court. He and Cleve Jones, the Reiners, Bruce Cohen, and Ken Mehlman had taken the place of the paid line standers at around 5:30 A.M. and were now shivering in the cold, waiting outside the Court to go in.

  Jerome texted love to the entire group from Boston, where he was now living. “I’m with you in my heart,” Chad’s mom wrote in from Arkansas. Ben Jealous, the president of the NAACP, could not be in Washington, D.C., that day, but had sent a note to Chad that he would forever treasure. “Sending you prayers and much success this week,” it said. “Yours in the struggle.”

  Chad parted the blinds and looked out at the news crews that were waiting for them to emerge. He had taped a giant American flag to his front door. “It never ends,” Kristina said with a laugh, about Chad’s patriotic decorating flair. “We can never get enough.”

  Paul read over the simple statement he planned to give. “We have faith in our country’s judicial system.”

  “It kind of feels like we’re all just standing in that town house in San Francisco,” Chad said, recalling the opening day of trial. “How far we’ve all come.”

  Jeff and Kristina started to cry.

  But Chad felt almost eerily calm. He had done everything he possibly could to prepare the political ground for a Supreme Court victory. That morning’s Washington Post editorial urged “liberty and justice for all,” while the New York Times’s called for A 50-STATE RULING.

  Now all the pressure was on one man: Olson.

  Olson was ensconced at the counsel table in front of the raised mahogany bench just to the right of where the chief justice would sit when the Court was called into session, reading over notes. Across the way sat Cooper. A white quill had been placed in front of both lawyers, a tradition that went back to the Court’s earliest sessions.

  Both men had their own traditions. For years, before every oral argument, Olson had been placing a laminated saint card into his pocket that his late wife, Barbara, had given him on the morning that he argued the Bush v. Gore case, a prayer to Saint Michael: “Do not forsake me in my time of struggle with the powers of evil.” The saint is known as the “the Archangel,” but Olson liked to call him “the Avenger.” Nestled next to that was a gold ladybug pin that Lady had given him after they married. Cooper, across the way, sat twirling his pen through his fingers. He and his entire team wore their good-luck cuff links, as they always did. They were engraved with a laurel leaf and sword, a visual representation of the firms’s motto: victory or death.

  Only four seats are available at each counsel table. Boutrous, Boies, and McGill sat with Olson. The Supreme Court also reserves a certain number of seats for lawyers who are members of its bar. When they heard that a line for those seats was starting to form the previous afternoon, Enrique Monagas had dashed down to the Court. He and Josh Lipshutz, the former Scalia clerk and newest member of the team, had spent a snowy, blustery night waiting in temperatures that dropped down to the thirties, but it was worth it to be sitting here now. His husband, Jason, was just outside, at the rally on the steps with their daughter, Elisa.

  “Being here right now, I’m really nervous,” he had said after one of the moots. “Not over how Ted is going to do but—it’s very real right now. Arguments we thought were bullshit, we are looking at with new eyes, thinking, does this argument have legs?”

  With the help of the former Supreme Court clerks who worked for them, Terry Stewart and her boss, San Francisco city attorney Dennis Herrera, had snagged seats reserved for guests of the justices. They were seated near Ron Prentice, the ProtectMarriage.com campaign’s executive director. Stewart was not without anxiety—“That would take the ability to read Kennedy’s mind”—but she was cautiously optimistic. Olson, she thought, had been at the very top of his game at the final moot court: “Fantastic!” she’d gushed.

  Paul Cappuccio, Olson’s friend, had been one of the grillers. The only question that the former Kennedy/Scalia clerk had managed to trip Olson up on was when he asked whether the Court should decline to reach the merits of the Proposition 8 case and instead dismiss the case on standing grounds. Breaking role for a moment, Olson had asked whether there any way to answer that other than a flat-out yes—potentially yielding a technical, California-only victory that didn’t equal Olson’s ambitions. “No,” Cappuccio had told him. But whatever the Court decided, he recalled telling Olson, the country was in a profoundly different place than it had been when the lawsuit was filed.

  “You’ve already won,” Cappuccio said, as they walked to lunch after the moot court session. “The real lasting impact of this case is that it changed the nature of the conversation, which, by the way, had you not done, your case never would have stood a chance at the Supreme Court.”

  Paul Smith, the lawyer who had argued and won the Lawrence case but declined Olson’s invitation to join the Proposition 8 case, shared that assessment. He had come to court today to hear the arguments, no longer worried that the justices would deal a blow to the community the way they had in the Bowers case, when they upheld laws criminalizing sodomy. The country had moved too far, too fast, for the Court to want to do something so potentially legacy tarnishing, he thought, a shift he credited in large part to Olson and the Proposition 8 case. Olson might have wanted for the case to move more quickly, but he, for one, was glad it had not.

  “Look at the difference three years has made,” he said. “They weren’t solely responsible for the changes, but anyone who says their contribution wasn’t hugely significant is wrong. That trial was a remarkable PR event.”

  The bus that had ferried the plaintiffs to the Court had been forced to d
rop them about a block away; security measures prevented it from stopping out front. An old man had caught sight of Kris and Sandy holding hands as they walked to the Court. “Shame,” he had hissed.

  “Stay close, stay tight,” Chad had said, hustling them along. They approached the building from the side, and when the crowd below spotted them on the steps, they began to cheer. Chad’s plan to hold the space in front had worked: It was filled with marriage equality supporters. Sandy’s hands flew to either side of her face as she looked down at everyone. Kris clasped hers together, as though in prayer, as a tear slipped below her thick brown-framed eyeglasses. “Good luck!” someone shouted as the line began to move.

  The classic Corinthian architecture made the Court chamber feel like a temple. The soaring forty-four-foot-high elaborate coffered ceiling was painted red and pale blue, with an intricately carved ivory flower design, and supported by twenty-four marble columns. The floor was carpeted red and bordered in Italian and African marble.

  The Court seats only four hundred people, and spectators are escorted into the room in small groups. The system is a rigid one, and Sandy and Kris wound up split off from the rest of the group. They were seated behind President Obama’s adviser, Valerie Jarrett, while everyone else, including the twins, was seated on the other side of the room.

  “It was incredibly stressful for Paul and Jeff and Chad,” Kristina said. “They’ve all formed such a unit, they didn’t want to be separated. It was good in a way, though, because it was nice to focus on something inconsequential.”

  Michele Reiner almost did not make it in at all; she had made a stop at the ladies’ room while the rest of the board was ushered into the room, and had to beg to take her seat. Lance Black and Adam craned their necks, looking around. The last time Chad and Rob Reiner had come to the Supreme Court, they had been out on the street, on the night that the Bush v. Gore decision was handed down. “Both times,” Rob joked to Chad, “because of Ted Olson.”

  Shortly before arguments were due to begin, the man himself wandered over to say hello. Olson hugged both Reiners. He had been up for hours, and was, Boutrous said, in a “great place.” At 5:31 that morning, he had returned Chad’s e-mail, thanking him for his friendship and partnership. “I’m enormously gratified, and humbled, by our journey and where we are today,” he’d said. But now he was at an uncustomary loss for words.

  “Well,” he said.

  Olson and the other lawyers had warned everyone not to read too much into the arguments. It is possible to pick up on a general gestalt, but vote counting is tricky. Sometimes a justice who appears to be giving a lawyer a hard time, for instance, is actually helping to shore up the argument or address what he or she knows to be a colleague’s point of concern. But as the minute hand of the clock above the bench ticked toward 10 A.M., it was impossible not to think that they would at least get an inkling of what the only nine people who had ever really mattered to their case actually thought, and to worry about what that might be.

  Cleve Jones took out a square cloth and mopped his forehead. Chad fiddled with the pen and pad he had brought with him to take notes. The room was now hushed, and when the marshal called the Court into session, both men startled.

  “Oyez! Oyez! Oyez! All persons with business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting. God save the United States, and this Honorable Court!”

  “It was over,” Kristina would say afterward, “in an instant—an instant.”

  Cooper had gone first, and there were times, preserved in black chicken-scratch on the notes Chad kept passing to Kristina, when it seemed hard to imagine that the justices could deny them. Cooper’s answer to one question, about whether, outside the context of marriage, he could envision any other rational basis for the state to use sexual orientation as a factor for denying gays and lesbians benefits or imposing burdens on them, had stunned Chad: “No, Your Honor, I cannot.”

  “In more than 50% of states it’s legal to fire/hire,” Chad wrote down on his pad, a reference to the fact that because there were no federal employment protections in place, employers in pockets across America could legally discriminate on the basis of sexual orientation.

  “That is an enormous concession,” Boies thought, “with implications for both DOMA and our case.”

  But at other moments, it appeared that everything that Chad had worked so hard to do had been for naught. The country might have undergone a seismic shift in its embrace of same-sex marriage, but if the justices were aware of it, they did not let on. They talked in fusty terms befitting a Court that still had fallout shelter signs painted on its walls. Even liberal justices like Sotomayor, a New Yorker who had lived in the West Village just blocks from the Stonewall Inn, kept referring to gays and lesbians as “homosexuals.” “Newer than cell phones or the Internet,” was how Justice Alito described same-sex marriage. Chief Justice Roberts dismissed the case Olson, Chad, and the rest of the team had worked so hard to make on why the term “marriage” mattered this way:

  “If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend,’ but it changes the definition of what it means to be a friend.”

  “I just felt at times like they hadn’t seen anything,” Chad said afterward. “It was a little disheartening.”

  The pivotal Justice Kennedy, meanwhile, seemed to be having a debate with himself. Kristina grabbed Chad’s arm when Kennedy spoke of the “legal injury” caused by Proposition 8 to the “forty thousand children” in California who lived with same-sex parents. “The voice of those children is important in this case, don’t you think?” he asked Cooper.

  At another point, he asked whether “this can be treated as a gender-based classification,” an indication that he might be willing to apply heightened scrutiny not by declaring gays and lesbians a new suspect class, but by finding that same-sex marriage bans discriminated on the basis of gender.

  But then he tacked in the different direction. “There’s substance to the point that sociological information is new,” he told Cooper. “We have five years of information to weigh against two thousand years of history or more.”

  “He’s expressing a Burkean concern,” Cooper recalled thinking. Maybe all that talk at trial about Edmund Burke, and the political philosopher’s warning that “infinite caution” should be used when mucking about with age-old institutions, or the amicus brief on the perils of using sociological studies to decide cases, had penetrated.

  “The problem,” Kennedy said to Olson, “the problem with the case is what you’re really asking, particularly because of the sociological evidence you cite, [is] for us to go into uncharted waters, and you can play with that metaphor—there is a wonderful destination [or] it is a cliff,” he said getting a little tangled up. “Whatever that was,” he added.

  Cite the evidence from trial, Terry Stewart wanted to say to Olson. Tell Justice Kennedy about the expert testimony, the studies they had entered into evidence to prove that heterosexual marriage would not be harmed if gays and lesbians were allowed to wed. Or point to the brand-new ten-page American Society of Pediatrics report, the one that coalition surrogates had been talking about on television all week, declaring that scientific evidence showed no cause-and-effect relationship between parents’ sexual orientation and children’s well-being.

  Ted Boutrous, for his part, wanted hold up a sign: READ OUR BRIEF! it would have instructed Kennedy. LOOK AT FOOTNOTE 6!

  The footnote was one of Boutrous’s proudest contributions to the brief. He had noticed that Cooper’s brief, in an effort to buttress his argument that social scientists were divided on the question of same-sex marriage, repeatedly cited the work of people who had never appeared at the trial. One was a sociologist named Kingsley Davis, who had died in 1997. “Bring me the head of Kingsley Davis!” h
e’d told members of the team, and the footnote reflected their research.

  “Rather than rely on witnesses at trial, who would have been exposed to cross-examination, [Proposition 8’s] Proponents now rely on historical writings by dozens of philosophers, sociologists and political scientists—from Locke to Blackstone, Montesquieu to Kingsley Davis (a sociologist who advocated ‘zero population growth’ while fathering four children with three different women, including a son at age 79)—to support their view that marriage is suited only to opposite sex couples,” it read. “None of those authorities, however—not one—expresses an opinion about same-sex marriage or argues that allowing gay men and lesbians to marry would harm the institution.”

  Olson, however, chose to emphasize broad principles over specific studies or footnotes. “There was a twelve-day trial, the judge insisted on evidence on all of these questions,” he replied, without going into detail. “You suggested that this was uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision, said that interracial—prohibitions on interracial marriages, which still existed in sixteen states, were unconstitutional.”

  Kennedy seemed unconvinced. At times, leaning back in his chair, he looked visibly pained. He expressed little willingness to go along with the more incremental options before him. Dismissing the case on the basis that Cooper’s clients lacked standing to appeal Judge Walker’s order, the California-born Kennedy declared, would be tantamount to giving the governor and others “a one-way ratchet” that they could use to “thwart” California’s citizens. And relying on the reasoning that Judge Reinhardt had used to limit the impact of the Ninth Circuit’s ruling to California seemed to Kennedy “a very odd rationale upon which to sustain this opinion.”

  But he also, in a comment that made all the lawyers in the room pay attention, indicated that he felt it might be too early for the Court to go all in. He would, in a speech in which he talked about same-sex marriage several months later, tell students at the University of California that “all of us were surprised at the speed of the thing.”