Forcing the Spring: Inside the Fight for Marriage Equality (13 page)

“News of the day!” Matt McGill exclaimed, wandering back from his seat at the counsel table with Olson to where the Reiners and the plaintiffs were conferring about the morning’s events.

Earlier that morning, while Olson had been digesting the news from the Supreme Court, Cooper had filed a remarkable two-page document there in the district court. Time-stamped at 8:30
A.M.
, it effectively gutted Cooper’s case.

“They dropped four of their witnesses!” McGill explained, grinning broadly.

It had been difficult for Cooper to find experts willing to testify on his side of the case; at least ten that he approached had turned him down.
Though he believed that the burden should be on the plaintiffs in this case, he knew that it would shift to him if he could not knock down both Olson’s argument that gays and lesbians ought to be considered a suspect class and that the fundamental right to marry was the right to marry a person of one’s choice.

And assuming he succeeded on those fronts, he still had to get past the hurdle the Supreme Court had erected in the
Romer
decision. In that case, the
majority held that if a law serves no rational purpose, it can be inferred that it was passed out of prejudice. Cooper needed to advance some nonbigoted rationale for Prop 8, and now he was down to just two experts. He did not panic; as he later put it, “We always thought the most important things would come out of the mouths of the plaintiffs’ witnesses.” Still, putting on an affirmative case using hostile experts called by your opponent is difficult in the best of circumstances.

In the coming days, Cooper and his team would tell the court that the witnesses had backed out at the last minute because of the plan to broadcast the trial, a stance he maintained years later when he said they were worried that the ban handed down that very morning was only temporary. “
The media focus on this case, if fed by videotape of the proceedings—it was fraught with risk for the side the media did not favor,” he said. “That was very much in the minds of these witnesses.”

But there were other, strategic reasons for Cooper to pull the four experts. Prior to the start of a trial, lawyers are given the opportunity to interview, or in legal lingo, “depose,” the other side’s witnesses. All four had made damaging admissions during those depositions.
An Oxford University philosophy professor who was to have testified that people have the moral power to overcome being gay, for instance, was forced to acknowledge that he had never done a study of human sexuality or interviewed gay or lesbian subjects before reaching that conclusion. And at least two of the withdrawn witnesses would later say that their decision not to testify stemmed at least in part from not wanting to go another round with the plaintiffs’ attorneys in open court.

Loren Marks, a professor at Louisiana State University, had been slated to testify that the ideal family structure for children is one in which they are raised by their biological parents—a possible rationale for Prop 8, since that is not possible for gay and lesbian parents. But McGill had forced him to admit that he did not realize that the studies he relied upon to conclude that children do best when raised by a mother and father defined “biological” parents in a way that included adoptive parents. Nor had he studied how the children of gays and lesbians fared. The publicity that could result from cameras was of some concern, but the deposition had—he remembered this later very clearly—at times made him seem “foolish and naïve.”

“
I wouldn’t have wished fifteen minutes of it on my worst enemy.”

And Boies, in his depositions of two religious studies scholars from McGill University in Canada, had demonstrated just what his wife had meant when she told Olson that putting up with his occasionally eccentric ways would be worth it.

“It was like watching someone pull the foundation out from underneath their house,” Terry Stewart, who accompanied him to the depositions, recalled. “It’s hard to describe what happened.”

Katherine Young was to have testified that the historical purpose of marriage was to bind men and women together, for the good of society, in order to foster an ideal climate to raise children. But Boies had forced her to admit that the primary purpose of marriage today is to express love and commitment. And though Cooper had said in his opening statement that marriage had always and “across cultures” been defined as a union between a man and a woman, Young had acknowledged that at varying times same-sex marriage rituals had been practiced in parts of India, China, and West Africa, as well as among certain North American Indian tribes. Even the Roman emperors were sometimes known to marry other men, she had added.

Her colleague Paul Nathanson had expected to be questioned about the expert report he had prepared on the varying positions that religious denominations took in the Prop 8 fight. Instead he found himself defending views he had expressed in books he had coauthored with Young on the role fathers play in families.

As a gay man who opposed gay marriage, he held complicated views. He believed that the modern concept of marriage as an expression of love, as opposed to duty, gave parents permission to split when their emotional bond ended. Allowing same-sex couples to wed, he feared, would only lend further currency to that adult-centric view. But Boies’s deposition left little room for nuance.

“He spent all of the entire day asking me had I ever heard of the American Psychological Society, all these hundreds of academic societies all of which are in the social studies field,” Nathanson recounted. “I am not in the social sciences, but in each case he asked, ‘Have you read this or that?’ I appeared like an idiot.”

Forced to acknowledge that many prominent national organizations, including the American Academy of Pediatrics, disagreed with his view that
allowing same-sex couples to marry could hurt children, by the end Nathanson was agreeing with Boies that allowing gays and lesbians to marry would increase the stability of their relationships and enhance their ability to be good parents.

It was, Nathanson would later say, an “extremely negative experience,” and both he and Young decided shortly thereafter not to testify. Cameras, he said, had little to do with his decision.

Explaining the import of the move to the Reiners and the plaintiffs, McGill had no way of knowing what was in the minds of Cooper’s witnesses. What he knew was that both the legal and media team would have a field day with this information. And it was a buoying piece of news to deliver to the plaintiffs right before they had to testify.

Straightening Jeff’s tie, Paul asked if he was ready.

Listening to Cooper’s opening argument, Jeff said, “emboldens me more to want to respond.”

“Kill ’em,” Paul said. “I mean in a good way. Kill ’em with kindness. Just tell the truth, because the truth negates all these points.”

M
r. Boies, your first witness.”

“Thank you, Your Honor. We call Jeffrey Zarrillo.”

Boies wore his usual off-the-rack suit and sneakers, but for this case he had decided that an additional sartorial statement was appropriate: Prominently affixed to his lapel was an American flag pin. Jeff kept his eyes on the lawyer as he took the stand and began telling the court about growing up in Brick, New Jersey, and the fear that had gripped him once he realized he was gay.

He recalled watching an
Afterschool Special
about a child who was thrown out of his home after coming out to his parents. He had badly wanted to play football in high school, but had been afraid to be alone in a locker room with other boys for fear that they would somehow know what he was. He was twenty-five years old by the time he confided his secret to friends, and almost thirty before he told his parents.

“Coming out is a very personal and internal process,” Jeff said, then choked up. “Excuse me.”

Walker, who had jotted notes during the opening statements, was now watching intently.

“Today you are in a committed relationship with another gay man, correct?” Boies asked.

“Yes, sir.”

“Tell me a little bit about that man.”

“He’s the love of my life. I love him probably more than I love myself,” Jeff said, the words spilling out, unrehearsed and raw. “I would do anything for him. I would put his needs ahead of my own. I would be with him in sickness and in health, for richer, for poorer, death do us part, just like vows. I would do anything for him. And I want nothing more than to marry him.”

Boies was moving quickly now, hoping to get Jeff off the stand well before lunch so Cooper would have no time to prepare for cross-examination. He needed to knock down the idea that domestic partnerships represented the generous compromise Cooper had painted them out to be in his opening, and one way to do that was to ask Jeff why he and Paul had decided against registering.

“It’s giving me part of the pie, but not the whole thing,” Jeff explained. “We would be saying that we are satisfied with domestic partnership as a way to live our lives, but it doesn’t give due respect to the relationship we have had for almost nine years. Only marriage could do that.”

“Do you believe that if you were married, that would affect the way other people who don’t know you deal with you?” Boies asked.

“Sure.”

“Why?”

“It says to them, these individuals are serious; these individuals are committed to one another; they have taken that step to be involved in a relationship that one hopes lasts the rest of their life.”

“Now, assume that the state of California continues to tell you that you can’t get married to someone of the same sex. Might that lead you to desire to get married and marry somebody of the opposite sex?”

“No,” Jeff answered.

“Do you think if somehow you were able to be forced into a marriage with somebody of the opposite sex, that would lead to a stable, loving relationship?”

“Again, no.”

“Your Honor, I have no further questions.”

Walker turned to Cooper and the team defending Prop 8.

“No questions, Your Honor.”

Walker could hear the murmuring in the audience, and even he seemed surprised. “Cross-examination?”

“No questions.”

“Raise your right hand,” the clerk instructed Paul.

There had been no time to talk about the way Paul had felt listening to Jeff’s testimony, only to lightly kiss him on the cheek as he passed him on the way to the witness stand.

Where Boies had sought to elicit from Jeff a heartfelt testament to the importance of marriage, with Paul he focused more on the next prong of the argument; that Prop 8, in denying gays and lesbians the ability to marry, caused them tangible harm.

“What are your views about having children?” Boies asked.

“I would love to have a family.”

“Why haven’t you so far?”

“I think the time line for us has always been marriage first, before family,” Paul answered. “For many reasons. But for us, marriage is so important because it solidifies the relationship.”

Boies moved on to his next point. “Have you experienced discrimination as a result of being gay?” he asked.

Paul hesitated. He might have talked about how his own brother had told him that his decision to become a plaintiff in this very case would be seen by his father’s side of the family—conservative Catholic immigrants from Jordan—as bringing shame to the Katami name, or about why only his sister was attending the trial. But that cut too deep, was too private.

So instead he talked about having rocks and eggs thrown at him the first time he went to a gay bar in college, and how later, during the Prop 8 campaign, he pulled up beside a woman with a
YES ON 8
bumper sticker on her car. Her window was open. He looked at her, and she shot him a “very distinctive, ‘What?’ look back,” he testified.

“And I said, ‘I just disagree with your bumper sticker.’”

“She said, ‘Well, marriage is not for you people, anyway.’”

“I couldn’t even respond,” he continued, crying now. “It rocks you to the core.”

“What was the image on the bumper sticker?” Boies asked.

It was not an idle question. The team had collected reams of evidence that it wanted to introduce at trial, but the rules required that each exhibit be authenticated and introduced through a witness, after a foundation had been laid for relevance. Boies wanted to use Paul to introduce Prop 8 campaign material as a way to counter Cooper’s claims that homophobia was not the driving force behind Prop 8.

The bumper sticker featured two stick-figure children holding hands with their parents, a visual representation of one of the campaign’s main slogans, that voters should pass Prop 8 to “Protect Our Children.” “It’s so damning, it’s so angering, because I love kids,” Paul said.

Boies then moved to play a number of campaign ads for the court. In one, threatening music played over the image of a freight train barreling down the tracks. The ad featured the ProtectMarriage.com campaign’s executive director, Ron Prentice, warning that “if California loses on the subject of marriage, then this goes nationwide.” Others talked of the “homosexual agenda,” “Christians walking in fear,” and how “the devil wants to blur the lines between right and wrong when it comes to family structure.” The video ended with the tag line, “Stand up for righteousness. Vote Yes on Proposition 8.”

“When you saw this video,” Boies asked Paul, “were you affected?”

“My heart was racing and I was angry watching it. I mean, again, ‘Stand up for righteousness’? Okay. So we’re a class of citizens that need to be stood up against, for some reason. And not to mention, what I find most disturbing is the reference to ‘the devil blurring lines,’ and ‘don’t deny Jesus like Peter did,’ and this oncoming freight train. Well, what happens when a freight train hits you? You’re going to be either majorly harmed or killed by that, right?”

Paul was wound up now, couldn’t help it. “I love Jeff Zarrillo. I want to get married to Jeff. I want to start a family. I’m not going to start some movement that’s going to harm any institution or any person or any child. I’m not.”

At 12:27
P.M.
, Boies wrapped up. A lawyer on Cooper’s team jumped to his feet, asking that the judge call a recess for lunch. “Good idea,” Walker said. Court would resume just after 1:30.

Everyone waited until the doors shut on the freight elevator that would take them down to the court cafeteria before breaking into applause. Kris’s mother had brought the twins, Spencer and Elliott, to hear her testimony later that afternoon.

How did the morning go? Spencer wanted to know. “Oh, it was so good!” Kris exclaimed, as Jeff and Paul beamed.

The team commandeered a long table in the lunchroom, where a quote from Eleanor Roosevelt was memorialized on one wall. “Where, after all, do universal human rights begin?” the wife of the thirty-second president had asked. “In small places, close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person, the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless those rights have meaning there, they have little meaning anywhere.”

Kris pointed it out to Sandy, and then, after everyone had grabbed a sandwich, she introduced her two boys to Cleve Jones and Bruce Cohen.

“These have been the happiest months of my life,” Jones told them. “It’s so cool.”

Pulling up to the courthouse, the thirteen-year-old twins had been unnerved by the number of people gathered outside. “Whoa,” Elliott had thought as they passed protesters waving antigay signs and who were clustered around a van plastered with biblical references.

But Jones’s optimism was catching. It was cool, now that they were safely away from the crowd, to think that Kris, their mom, might actually bring about the change she was seeking.

“What are you doing?” Kris asked Elliott, whose sandy head was bent in concentration.

He held up his phone. “Returning texts from a friend.”

“About?”

“This,” he answered, the universal monosyllabic response of teens everywhere when parents fuss or pry.

Kris tensed. This was one reason why she had been so reluctant in the weeks leading up to the trial to do any interviews. Her boys hadn’t signed up for this; she had. And while Jeff had escaped cross-examination, who knew what Cooper had planned for the rest of them?

“About what is happening? Or why this is happening?”

Elliott seemed surprised. Unlike Sandy’s boys, he’d grown up with two moms. Apart from those moments when someone would say something like, “That’s so gay,” and then quickly apologize—“Dude, I wasn’t thinking!”—it was no big deal. All of his friends knew Sandy and Kris, as well as his other mother, and were supportive.

He gave Kris an “oh Mom” look before answering: “Just asking questions.”

Kris gave up, deciding to keep things light. “Maybe you should invite all your friends over,” she joked. “Gather ’round, kids, I’ve got a story to tell you.”

Spencer laughed. “Yeah, about the birds and the bees!”

While the plaintiffs finished their lunch, Cooper was upstairs grappling with a dilemma.

In the weeks leading up to the trial, he had decided against cross-examining any of the plaintiffs. Litigation is a zero-sum game. Something that might help you, but has the potential to help your opponent more, is something to be avoided.

That Sandy had been married to a man might be relevant as it related to the question of whether sexual orientation was an immutable characteristic, one of the criteria the Supreme Court considers when deciding whether to apply heightened scrutiny, Cooper thought. But Olson was likely to preemptively put that fact into the record himself. Whatever explanation Sandy might give under cross-examination would only serve to undercut the point.
And atmospherically, it would do more harm than good to be seen to be beating up on the plaintiffs in a case that centered on proving that Proposition 8 was not driven by animus toward gay people.