by Becker, Jo
Olson had become their sherpa in this legal expedition, and they felt more than a little lost without him as they climbed into the SUV that would, for the last time, carry them to the nation’s highest court. Rob and Michele Reiner, the parent figures of the operation, were also absent; Rob was in Connecticut, filming a movie. “Feel so bad I can’t be with you,” he texted Chad. “Give big hugs and kisses from me to everyone.”
Chad read an e-mail from Kristina, who was on her way with the president and first lady to Andrews Air Force Base and then on to Africa. “This is all surreal,” she wrote.
“Do you believe we’re going to know in one hour, or one hour and a half?” Sandy said.
“Don’t make me throw up back here,” Paul replied.
Kris joked that between nerves and the sweltering heat, there was no way they would be able to follow the old “never let ’em see you sweat” adage. “Nothing works on Sandy. Would deodorant work on a hummingbird?”
“I finally have a hankerchief because I know I’m a blubbering mess at these things,” Paul said, holding out an old-fashioned white square trimmed in pale blue. “Jeff was like, ‘Really? You’re my grandfather right now!’”
Since the oral arguments, France, Brazil, Uruguay, and New Zealand had become the latest countries where gays and lesbians could wed, and Britain was about to follow suit. Closer to home, after voters in Minnesota rejected the constitutional ban on same-sex marriage, lawmakers in that state had voted to legalize it. Delaware and Rhode Island had also passed laws allowing gays and lesbians to wed, bringing the total number of states to thirteen, plus the District of Columbia. Two more Republican U.S. senators, Lisa Murkowski of Alaska and Mark Kirk of Illinois, had come out in favor of allowing gays and lesbians to marry.
The Boy Scouts, under pressure from donors who themselves were under pressure from Chad, had dropped their prohibition on gay scouts, if not gay scout leaders. The first active major-league American sports player, NBA center Jason Collins, had come out as gay in a Sports Illustrated cover story.
Even the Catholic Church was softening, if not its position, its message. A new pope had recently been elected, and would soon, in a series of headline-making remarks, declare that gays and lesbians should be treated with respect: “If someone is gay and he searches for the Lord and has goodwill,” Pope Francis said, “who am I to judge?” But under his leadership, the church’s tone was already changing.
Cardinal Timothy Dolan, who during the New York State legislative battle had predicted that allowing gays and lesbians to marry would lead to a “perilous” and “Orwellian” future, had recently declared that “we gotta do better to see that our defense of marriage is not reduced to an attack on gay people. And I admit, we haven’t been too good at that.”
Predicting with any certainty what the Supreme Court might do in this atmosphere was a fool’s errand, but that did not stop either the DOMA or Prop 8 teams from parsing even the smallest of signs for meaning.
Justice Kagan had been spotted out and about over the weekend, shopping at a supermarket and attending a dinner party. Did that mean that she was in the majority, since she wasn’t buried in her office writing a dissent? And then there was the scathing speech Justice Scalia had given the previous week in North Carolina. Entitled “Mullahs of the West: Judges as Moral Arbiters,” it made for interesting tea-leaf reading. Why would he be decrying judges who believed they, rather than the community, were qualified to decide questions of morality such as same-sex marriage, where, as he put it, there was no “scientifically demonstrable right answer,” if he had emerged victorious in the Court’s internal debates?
The day before, Olson had told the plaintiffs that the most likely outcome was that they would win on standing. Former justice John Paul Stevens, the man who Olson had hoped would sway Justice Kennedy his way, had made the same prediction in a speech that month, the lawyer noted to Chad.
But there was still a real sense that anything could happen, even an outright loss, particularly now that it appeared Roberts was writing one of the opinions. In recent days, the Supreme Court had gutted the Voting Rights Act and stepped up scrutiny of race-conscious college admissions policies in a high-profile affirmative action case.
“Those decisions have not made me more optimistic,” Boies said over lunch one day at a Washington steakhouse.
Mary, his wife, nodded her agreement. “I just hope there aren’t any broken hearts.”
AFER had prepared seven different press releases to cover every possible outcome. The one they would release if Proposition 8 was upheld had been the last, because everyone kept refusing to write it. “I know we don’t want to focus on this,” Jeff had said the night before. “But what if we lose?”
“It’s going to be rough,” Adam had replied. What else could he say?
Kris, checking her iPhone, saw an e-mail from Jim Messina, Obama’s 2012 campaign manager. Kris, who in her new job was working with Messina to promote the president’s early childhood education initiative, shared his message: “Please know you have already won. 9 old fucking judges can’t change that, either way.”
Silence. Fiddling with her iPhone again, Kris looked for a song to fill it, to capture the moment. She settled on one by hip-hop artist B.o.B. The lyrics filled the SUV:
Can we pretend that airplanes
In the night sky
Are like shooting stars?
I could really use a wish right now
Wish right now
Wish right now.
Kris, swaying back and forth, leaned over and kissed Sandy’s cheek. “No matter what happens, we won,” she said, trying to sound convincing. “We did.”
As the SUV pulled in front of the U.S. Supreme Court, one by one everyone began softly singing along with the music.
I could really use a wish right now
Wish right now
Wish right now.
The noise hit them as soon as they stepped onto the sidewalk. Beyond the crush of cameras and reporters shouting questions, a sizable crowd had gathered, pressing close and chanting two words over and over as Chad, Jeff, Paul, Kris, Sandy, and Adam made their way up the courthouse’s marble steps.
“Thank you! Thank you! Thank you!”
Inside, the courtroom was hushed. Boies had already taken his seat in the bar section. Olson had managed to secure seats reserved for guests of Justice Clarence Thomas and retired justice Sandra Day O’Connor for everyone else. Cooper was not there, but a number of his clients were.
As the clock ticked close to 10 A.M., Chad squeezed Kris’s arm, who grabbed Sandy’s, and on it went down the row.
Suddenly, the justices appeared all at once, stepping like wizards of Oz through invisible openings in the cascading red draperies that backdropped their bench. Justice Alito seemed to be grimacing; the rest were their usual inscrutable selves.
When everyone was seated again, Chief Justice Roberts made the following pronouncement:
“Justice Kennedy has the opinion in—”
Chad felt as though he held his breath for minutes, though scarcely half a second passed before the chief finished:
“—Windsor.”
In New York, Edie and her legal team began jumping up and down. Chad, who had been sitting tall, dropped his head. That meant that Roberts was writing the Proposition 8 opinion, which likely meant one of two things: Either they were about to win on standing, or the Court was going to uphold bans like Proposition 8 as a proper exercise of the state power to regulate marriage, the outcome the entire gay legal community had feared when they had announced the case.
Only after the justices verbally summarize their opinions from the bench does the Supreme Court hand out written copies to the public. With no way to flip to the end to see the holding and rationale, the experience of those sitting in the audience is an impressionistic one.
Justice Kenned
y, looking straight ahead, delivered his in a regal tone. First, there was the question of standing. He went on for quite a bit about that, before declaring that DOMA was properly before the Court. When he finally turned to the merits, Boies, who said he never lost sleep over a case, was in a state approaching alarm, as his mind tried to process phrases about laws “which for centuries had been deemed necessary,” and marriage being the “exclusive province of the state.” If Justice Kennedy, joined by the court’s four liberals, had decided Windsor based solely on federalism grounds, it might be time to hit the panic button.
“That’s not good, that’s not good,” thought Matt McGill, who was standing in a hallway in the Third Circuit Court of Appeals in Philadelphia where Olson was preparing to argue his case, holding his phone up to a window in order to get enough bars to follow what was happening in Washington via SCOTUSBlog.
But then Kennedy started throwing around modifying phrases, making clear that the states’ power was “subject to constitutional guarantees” and using terms like “stigma” to describe the federal law’s effect. He seemed to be saying that while he could have decided this case based on federalism grounds, he was going to go bigger.
It was going to be okay, Boies thought, then, as Justice Kennedy continued, he recalculated. It was going to be more than okay.
The 5–4 opinion was filled with the kind of flowery rhetoric that had marked the Lawrence decision, issued ten years earlier to the day. If Justice Roberts, in attacking the narrower federalism argument during oral argument, had bet that Justice Kennedy would be unwilling to find DOMA unconstitutional on broader grounds, he had seriously miscalculated.
In explaining the decision by states like New York, where Edie Windsor lived, to allow gays and lesbians to marry, Kennedy wrote of an “evolving understanding of the meaning of equality.” The state had acted to “give their lawful conduct a lawful status,” in what was “a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.” The “essence” of DOMA, he wrote, was to interfere with that dignity, to “disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
This was more than just a victory. It was a validation, by the highest court in the land, of an entire community. In the bar section, a group of women sitting together began dabbing at their eyes. As Justice Kennedy pronounced DOMA “unconstitutional,” based on both due process and equal protection grounds, someone let out a wail. In New York, Edie Windsor, watching from her lawyer’s apartment, let out a whoop. “I want to go to Stonewall right now!” she said.
But what, exactly, did it mean for Prop 8 and bans like it?
Justice Scalia, reading a summary of his dissent from the bench, provided part of that answer.
“The penultimate statement of the majority’s opinion is a naked declaration that this opinion and its holding are confined to those couples ‘joined in same-sex marriages made lawful by the State.’ In other words, today’s opinion does not say anything about whether same-sex marriages must be made lawful,” Justice Scalia said.
“It takes real cheek for today’s majority, as it is going out the door, to leave us with that comforting assurance—when what has preceded it is a lengthy lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to Congress’ hateful moral judgment against it.”
To Chad, hanging on each word, it now seemed clear that the majority of the Court would not reach the merits in the Proposition 8 case. But it seemed equally clear that the five justices who had just delivered the Windsor opinion weren’t going to vote to declare Proposition 8 constitutional either. Instead, they would duck for now, even as the Windsor opinion provided a road map for the next challenge.
Justice Scalia, still thundering his dissent from the bench, had reached the same conclusion. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
Winding down, Justice Scalia then proceeded to read the majority opinion in another case, an interminable delay for everyone waiting to hear the Prop 8 opinion that he seemed to recognize. “Sorry, but this is a short one,” he quipped, good humor now returned.
And then, finally, Chief Justice Roberts delivered the opinion of the Court in the Proposition 8 case. On a vote of 5–4, the Court cleared the way for same-sex marriages to resume in California, while leaving for another day the question of whether all fifty states must follow suit. Kris, sitting next to Chad, gasped aloud.
Notwithstanding the California Supreme Court’s finding that the state constitution gave proponents of Proposition 8 the authority to stand in for the governor and the attorney general for the purpose of defending the initiative, the majority declared that the question of standing was a federal question. Cooper, who was reading the opinion on SCOTUSBlog in his office, couldn’t believe the way that Roberts sidestepped the Supreme Court precedents that he had relied upon to reach the conclusion of the Court.
While it was true that the Supreme Court had granted New Jersey state officials standing to defend a school prayer law in the 1987 Karcher v. May case, it had limited standing to elected officials still in office, Roberts wrote. Then, in a piece of reasoning that Cooper found breathtakingly disingenuous, Roberts buttressed his opinion by turning to a passage in the Court’s 1997 Arizonans for Official English opinion.
In that case, the Court had cast doubt on ballot proponents’ ability to defend initiatives because there was nothing on Arizona’s books or in the state constitution allowing them to act as agents of the state “in lieu of public officials.” But Roberts turned the passage “on its head,” Cooper would later say, in order to conclude that because Proposition 8 proponents were not elected officials, but rather mere private citizens, answerable to no one, they could not by definition be agents of the state as required by Arizonans. And as private citizens, Roberts explained from the bench, Prop 8 proponents “must have suffered some injury.” That was a test, the majority concluded, that they could not meet, meaning they never should have been granted standing to challenge Judge Walker’s decision.
Boies, listening, seized on those words: That was what they had been arguing all along, that allowing gays and lesbians to marry harmed no one.
In Philadelphia, McGill ran into the courtroom where Olson, with no access to the news, was sitting. The court was in session so he had to whisper the news. “You could see the tension drain away,” McGill would later recall. Olson’s shoulders, which had been bunched up around his ears, relaxed. “We won,” he said.
The Gulfstream IV carrying Chad, Boies, the plaintiffs, and the AFER team took off for California a little after 1 P.M. Boies had paid for another private jet to pick up Olson in Philadelphia so he could meet them at the West Hollywood rally that night, and the stewardess reported that from time to time it could be glimpsed just up ahead.
This was a group that had never let a milestone go by without speeches and toasts, but the whirlwind of the last few hours had left little time to process what had just happened. After only the briefest of huddles in a vestibule near the Supreme Court’s front doors—“If you listen to the DOMA decision it’s only a matter of time before it goes across the country!” a jubilant Boies had told the plaintiffs—the team had stepped outside and into a media melee, culminating in a call from President Obama.
Everyone was still giggling about how Chad, in the media pit outside the Supreme Court where every major network had set up their cameras, had tried to get producers’ attention, saying, as loudly as he could, “Hello, Air Force One.” When that hadn’t worked, he had shoved his way into an MSNBC live shot of Kris and Sandy, speakerphone on, as the president praised everyone for their courage and Paul invited him to their w
edding in a call heard round the world. “I do know a little about media,” Chad said with a laugh.
But overall, the mood on board was subdued. The proponents of Prop 8 had just issued a press release signaling that they intended to try to limit the scope of the day’s Supreme Court ruling with yet another round of litigation, arguing that Judge Walker’s decision applied only to the four plaintiffs because the case had not been filed as a class action. The idea had gained some traction after Judge Reinhardt, during the Ninth Circuit’s arguments, had flummoxed Boies with his question about whether they had sued the right people.
No one on the legal team gave much credence to the argument. But given that Judge Reinhardt had included an aside in his opinion chastising the team for not filing the case in a way that ensured statewide enforcement, the team had been preparing for this eventuality.
In recent weeks, Chad, Adam, and Ted Boutrous had met privately with California attorney general Kamala Harris and Governor Brown’s legal staff. Legally and practically, they had argued, as the top legal officers in the state, you are the ultimate arbiters on the matter. The coordination had paid off: Shortly before takeoff, Governor Brown had called Chad directly to tell him he had just ordered California’s county clerks and county registrars to begin issuing same-sex couples marriage licenses as soon as the Ninth Circuit, whose decision on the merits had now been vacated, gave the state the go-ahead.
Chad, checking his e-mail, saw that the Associated Press was reporting that marriages would not resume in California for at least twenty-five days. The losing side in a Supreme Court case has that long to ask for a rehearing, and while that request is rarely granted, the wire service was quoting a spokesperson for the Ninth Circuit saying the court would likely wait for that time to run before lifting the stay it had imposed after ruling in the plaintiffs’ favor. He called the news back to the plaintiffs and Adam.
