Forcing the Spring: Inside the Fight for Marriage Equality

by Becker, Jo

  With no immediate wedding to plan, Kris and Sandy passed the time by sharing the e-mails flooding their in-box. Paul, looking emotionally exhausted, stared intensely out the window for several minutes, before laying his head on Jeff’s shoulder and falling asleep.

  Up front, Boies spread copies of both opinions in front of him and began reading carefully for the first time, while Chad called Robbie Kaplan, Edie Windsor’s lawyer, from the plane’s satellite phone.

  “Robbie? Robbie, it’s Chad Griffin—congratulations!”

  He listened for a second.

  “We thank you! Everyone is sending their love to you and Edie.”

  The front page of the following day’s Washington Post would feature an iconic photo of Chad, Boies, the plaintiffs, and Adam triumphantly emerging from the Supreme Court with their hands held high in the air under the headline VICTORIES FOR GAY MARRIAGE. The New York Times’s double-barreled headline sat over a picture of a joyous Edie Windsor, celebrating in the West Village near her home in New York City. The Huffington Post was already up with a headline that said it all: DOUBLE RAINBOW.

  And indeed, for all the worry about the tension, perceived and actual, between the two cases, each had benefited from the other.

  Practically, Windsor’s victory meant that when Paul and Jeff and Kris and Sandy did get married, real tangible benefits would attach to what, up to now, had largely been a symbolic step. It would also make it difficult to argue, as Cooper had done, that domestic partnerships represented an equitable compromise; Windsor had “changed the landscape,” the New Jersey Supreme Court would soon declare, in a ruling that cleared the way for gays and lesbians to marry in that state, making the harm to couples unable to marry and thus avail themselves of benefits “real, not abstract or speculative.”

  Shortly before takeoff, Attorney General Eric Holder had called Chad to brief him on the administrative steps the government was already taking to ensure that the Windsor opinion applied as broadly as possible. Gay and lesbian couples would now be entitled to file joint tax returns. The Pentagon would immediately begin extending survivor benefits to the spouses of gay and lesbian service members killed in action, who would also now be eligible to be buried alongside them in veterans’ cemeteries. The Department of Homeland Security would immediately begin processing spousal citizenship applications for transnational couples who up to now faced the possibility of separation due to deportation. The list went on and on. It would be trickier for legally married couples who resided in a state with no right to marry, given that some programs like Social Security consider where people live rather than where they were married to determine spousal benefit eligibility, but the administration planned to issue regulations to solve that problem.

  “Congratulations on all the work you’ve done, my friend,” Holder told Chad.

  Legally, Olson had been proven right that the broadest arguments were the key to Justice Kennedy’s vote. Kennedy had dissented from the majority’s standing opinion—written by Chief Justice Roberts—meaning he had been willing to rule on the constitutionality of Proposition 8. Denied that opportunity, he seemed to have grafted whole passages of the arguments that Olson had put forward in the Prop 8 case onto his opinion in the DOMA case.

  Windsor’s brief, narrowly tailored to convince the justices that they could find in her favor without deciding the larger question of whether denying gays and lesbians the right to marry was unconstitutional, sought only to convince the Court that there was nothing so fundamentally different about gays and lesbians that could justify DOMA, and therefore, like the Colorado initiative in the Romer case, the federal law was motivated by animus.

  Kennedy agreed, but he went further. While he left open the question of whether his opinion was based on a belief that gays and lesbians had a fundamental right to marry, and avoided the other crucial question of whether heightened scrutiny ought to apply, it seemed clear from what he did say that this case was, as Olson had maintained, very much about the importance of marriage. Where Olson had argued that denying gays and lesbians the right to marry labels them “second-class and not equal,” Kennedy found that DOMA “demeans the couple” and places them in the “unstable position of being in a second-tier marriage.” Where Olson argued that a ban like Proposition 8 “generates a feeling of inferiority” among gays and lesbians and “especially their children,” Kennedy had this to say about DOMA: It “instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.” And as Olson had done, Kennedy repeatedly returned to the concept of human “dignity” in explaining his decision.

  By intertwining arguments from both cases, Kennedy gave the Windsor opinion a heft and precedential value it might otherwise not have had, providing powerful legal ammunition for a slew of future challenges to state bans on same-sex marriage. Robbie Kaplan would later ruminate that “had the Prop 8 case not been there, maybe they would not have ruled so expansively in the Windsor case, because clearly they were trying to send a signal on the larger question.”

  “I don’t know if you’ve had any time to focus on it,” Boies said, finally reaching Olson on his plane, “but I just get happier and happier.” He listened for a minute. “Take care, my friend,” he said, before signing off and turning to Chad. “It hasn’t quite sunk in yet.”

  And in truth, it was hard not to feel a little ambivalent, when they had wanted so much more. As forward-leaning as Kennedy’s opinion was, it was still vintage Kennedy, teasing in its vagaries, designed to be read in multiple ways. Scalia’s blistering dissent, by contrast, was far more straightforward, and in its own way heartening to Chad, but reading it he could only shake his head. “It’s hard to respond.”

  “I just cringe,” Boies replied.

  Among other things, Scalia had accused Justice Kennedy and the majority of a “jaw-dropping” assertion of judicial supremacy, of making only “passing mentions” to the arguments made by DOMA’s defendants, of employing “rootless and shifting” justifications in an opinion that, “whatever disappearing trail of its legalistic argle-bargle one chooses to follow,” amounted to declaring that DOMA was motivated by a “bare desire to harm couples in same-sex marriages.”

  “To hurl such accusations so casually demeans this institution,” Scalia had charged.

  “He doesn’t sound like an independent jurist,” Chad said.

  “Duh,” Boies interjected.

  The dissent was tame compared with the one that Scalia had penned in the Lawrence case, when he argued that states should be able to pass laws that promote “majoritarian sexual morality” and accused the Court of buying into the “homosexual agenda,” but the distinction was lost on Chad.

  “He sounds like a right-wing politician,” he said.

  Only then did the irony of the odd alliance that had combined to hand them their victory truly hit them. Justice Scalia had joined Chief Justice Roberts and three of the Court’s four liberals in denying Cooper’s clients standing. Justices Alito, Thomas, and Sotomayor had joined Justice Kennedy in a dissent that accused the majority of undermining the entire purpose of initiatives, which was to check the power of state officials, by handing those same officials a “de facto” veto over those they did not like.

  In other words, Kris and Sandy and Jeff and Paul had Justice Scalia to thank for the fact that they would soon be getting married. Or, seen another way, the couples in the thirty-seven states without marriage equality might have Scalia, and three of the court’s liberals, to blame for the fact that they would have to wait.

  It was possible, of course, that each had simply been following their view of the law. Both Justices Roberts and Scalia were longtime standing hawks, and Justice Ginsburg had authored the opinion in Arizonans. But it seemed to many on the legal team that it was equally possible that the two conservatives had joined forc
es with the liberals to stop Justice Kennedy from reaching the merits in the Proposition 8 case, thus limiting the impact of the decision to California.

  With the political winds blowing so strongly in favor of same-sex marriage, the justices seemed to have blinked—too conflicted to hand down a nationwide decision allowing gays and lesbians to marry, but too aware of their place in history to be seen as moving the country backward by denying a right polls now showed most Americans supported. It was, in a certain sense, a perfect political face-saving maneuver.

  The more Olson thought about it, the more it seemed a modern-day Marbury v. Madison. In that landmark 1803 case, the Supreme Court managed to reach the result it wanted—establishing the judiciary as coequal to Congress and the executive branch, with the authority to strike down laws they had approved—but it did so in a way that gave a victory to then president Thomas Jefferson, making it harder for him to complain about an outcome that he disliked.

  Olson could see the three liberals on today’s Court saying, as he put it later, “This is a pretty good outcome. You blow away DOMA in a strong opinion, and you blow away Prop 8 but in a way that people on the other side can’t get as exercised about.”

  In Washington, Cooper analyzed it much the same way: It seemed to him that no justice in the Windsor majority, Kennedy included, would be likely to peel off and uphold a ban like Prop 8. “That gives additional force to the suspicion, voiced by many, that the standing ruling was a negotiated outcome to postpone the date when the Court would have to decide the larger constitutional issue,” he said.

  But if that were the case, why did three of the liberals go along? Boies, mulling that mystery over with Chad, said he could understand Justices Ginsburg and Breyer. Justice Ginsburg would later reject comparisons to Roe v. Wade, telling the New York Times, “I wouldn’t make that connection,” but she sure had seemed eager to get rid of the Proposition 8 case rather than decide it. Maybe she simply thought the country was not yet ready for a fifty-state ruling. And Breyer, Boies said, had often spoken about the fragility of the Court’s power. In the justice’s 2010 book Making Our Democracy Work, Breyer cited an 1831 decision in which the Court validated the Cherokee Indians’ claim to lands given to them by treaty with the government, a ruling that then president Andrew Jackson promptly countermanded. His concern that the Court’s authority derived from people’s willingness to comply with its dictates “could lead Breyer to worry about moving too fast,” Boies said.

  But Kagan? Why did she sign on to the opinion? Was she worried, when the justices first voted, about where Kennedy would come out? If so, why was Sotomayor confident enough to vote the other way? “They would have reached the merits if either Ginsburg, Breyer, or Kagan, any one of those three, had gone the other way,” Boies mused.

  And what about Roberts? His technocratic dissent to the DOMA decision, on standing grounds, contained none of Justice Scalia’s fire-eating language. He mildly chastised Kennedy, saying, “I would not tar the political branches with the brush of bigotry.” He agreed that DOMA should not have been struck down, but limited his rationale to the notion that when Congress passed the law in 1996, its interest in uniformity was justified given that no states at that point allowed same-sex marriage.

  “He even tries to walk Scalia’s comments back,” Boies told Chad, noting the portion of Roberts’s opinion in which he disagreed with Justice Scalia’s assessment that the majority’s opinion in Windsor would inevitably lead to same-sex marriage.

  On the ground in San Francisco, Judge Walker, who first heard the news on television while on a treadmill at the gym, would be struck first and foremost at how “savvy an operator” Roberts was in cobbling together a majority to kick the Proposition 8 case on standing and avoid, for the time being, committing himself to a course that history would surely someday judge. By holding a trial that subjected each of the purported justifications for same-sex marriage bans to the crucible of cross-examination, Walker had made Olson’s path forward far less risky, creating a record that made it harder for the justices to rule in Cooper’s favor, even under the deferential rational basis standard. Walker had hoped that the Supreme Court would find Proposition 8 unconstitutional for the same reasons he had—“It would have taken me off the hook”—but he was “neither surprised nor dissatisfied with the result.” Roberts “knew which way the winds were blowing,” he said, “and this was an easy out.”

  “He preserves his position,” was the way Boies put it to Chad.

  Just then, Adam, who was watching the flight path on a wall-mounted screen, interrupted the what-if legal reverie.

  “Hey, we just crossed into California,” he called out from the back of the plane, “where we are now full and equal citizens.”

  It took a moment to process the import of those words. Then, for the first time that day, everyone began to cheer.

  FORTY

  JUNE IS FOR WEDDINGS

  Two days later, at 10:40 A.M. Pacific time on June 28, the following e-mail went out to AFER staff:

  Subject: Go Time

  CONFIDENTIAL—DO NOT SHARE WITH ANYONE. Weddings may start today.

  No one had planned on this. Olson and the rest of the legal team were still debating whether to file a motion asking the Ninth Circuit to lift its stay, or whether to stick to protocol and wait the twenty-five days Cooper had to file for a rehearing. But when Chris Dusseault and another member of the team, Josh Lipshutz, had called to speak to Molly Dwyer, the clerk of the Ninth Circuit, that morning about logistics, her cryptic answers to their question about the court’s procedures put them on high alert.

  Have you considered whether the Ninth Circuit could lift the stay on its own? she had asked.

  Whoa, Lipshutz thought. What exactly is she telegraphing here?

  Hypothetically, if we were to be working on a motion to lift, Dusseault started to ask, carefully wording his question as theoretical so as not to run afoul of rules prohibiting ex parte communications with court officials.

  She interrupted him: Betting money would say not to spend your weekend on that motion.

  “We’ll know more at 3 P.M.”

  The two lawyers had immediately called Adam, who would later recall the conversation this way: “‘Hey Adam. Pause. We just had, pause, this, pause, interesting call with the, pause, clerk of the Ninth Circuit.’

  “The pace they were talking, I was like, what, what?”

  The team had long hoped to ensure that the four plaintiffs were the first to marry in California, so a fair amount of planning had already been done. Now they would just have to improvise on the fly.

  The two couples wanted separate ceremonies, and so Adam decided that Kris and Sandy, who had already flown back to San Francisco, would marry there, while Jeff and Paul would stay in Los Angeles. A car was dispatched to take Paul and Jeff to Norwalk, a predominately Latino enclave of southeast Los Angeles and the only place the team could find in the county that would be open and issuing licenses after 3 P.M. Enrique Monagas, the lawyer who filed the case more than four years earlier, happened to be in town for an argument. He and Dusseault, who lived in Los Angeles, would meet Paul and Jeff there.

  Sandy was at work when Kris reached her with the news. She dropped everything and picked up Kris’s son Elliott at the science camp where he was working as a counselor; the other three boys were scattered throughout the country, too far to make it on time. Racing home, Sandy threw a silvery knit dress, shoes, and makeup into a bag, and twenty minutes later the three of them were heading to Gibson Dunn’s San Francisco office, where Sandy got dressed for her wedding in the bathroom. Kris, who had already put on a gray pantsuit at home, texted her mom, who had driven into the city to pick up a visa for an upcoming trip to Brazil. Taking the team’s confidentiality warning seriously, Kris told her only that she might want to drive her car to City Hall and stay put.

  Chad and Lance Black had been incommuni
cado, doing an interview with the Hollywood Reporter. When he finished up, Chad called Fred Sainz, his vice president of communications and marketing at the Human Rights Campaign, to talk about some unrelated business. “Dude, I have something soooo much more important to talk to you about,” Sainz said, and filled him in.

  “Cancel your shrink appointment,” Chad told Black, who was scheduled to see his therapist that day. “We’re leaving now.”

  Charging through the lobby of the Sunset Tower Hotel, Chad made the decision to head to the Los Angeles airport and on to San Francisco, the city where this had all begun, and where three years earlier Judge Walker had issued the sweeping opinion that was now, as the only one left standing, controlling. “June is, after all, the month for weddings,” Walker had said all those years ago during closing arguments. Chad hoped so.

  Grabbing his bag, he ran back downstairs to meet the car he had ordered. “I’ll double your fee if you can get me to the airport in record time,” he told the driver. Just then, Sainz called him back. The lawyers, seeing AFER’s massive planning machinery kick into high gear, were now trying to talk everyone off the ledge.

  “Let’s just be clear, we don’t know what this means,” Sainz said, relaying the lawyers’ message. “It could be that at 3 P.M. they just announce that it will start next week.”

  “What’s the fucking headline here?” Chad interrupted. “I don’t need to know the details.”

  He decided to keep going. He wasn’t about to chance missing Kris and Sandy’s wedding. The next available flight was at 1 P.M. on Virgin America, in less than an hour. Chad’s bag was massive, with clothes spilling out of it because he’d packed so fast, and he was worried that the airline would make him check it. That would mean precious minutes lost on the San Francisco end of the trip. Rummaging through it, he grabbed his Human Rights Campaign pin.