Forcing the Spring: Inside the Fight for Marriage Equality (15 page)

Olson got closer to the truth. “They’re afraid of them,” he said. “They think asking more questions would only help our case.”

But this was no time to rest on laurels. Before leaving for the day, Olson convened the lawyers for a quick planning conference. There had been some problems with exhibits and technical difficulties playing the campaign ads that morning, the kind that could cause them to lose credibility with the court if repeated, he warned.

“I think we had a very good day,” he said, “but the rest of the week has to be flawless.”

Walking over to the St. Regis Hotel bar with Kristina for a drink, Matt McGill had much the same take. Cooper might, as Michele Reiner had put it earlier that day, seem “unimpressive” to the unschooled, but McGill knew better. His argument that allowing gays and lesbians to marry could lead to bisexual polygamy was “an intellectually appealing sophistry,” he told Kristina, and one “we’ll have to grapple with.”

Cooper had gone up against Boies and Olson in two other cases, one involving a school desegregation busing policy in Delaware, and another an election recount in Puerto Rico. He had emerged the victor in both. Notwithstanding the Ninth Circuit’s narrow discovery carve-out, Cooper so far had managed to keep them from seeing the campaign’s most sensitive internal communications, and he had convinced the Supreme Court to hear his arguments on why the proceedings shouldn’t be broadcast.

“I don’t believe they will just lay down and die,” McGill told Kristina. “I know these guys too well.”

W
ith the plaintiffs’ emotional testimony behind them, Olson and the rest of the team now moved into the next phase of their case, a methodical unspooling of expert testimony by academics in the fields of history, sociology, psychology, economics, and political science. It was going to be “like getting a PhD in all things gay,” Chad enthused.

But Cooper, looking over the lineup, dismissed it as largely irrelevant. Olson’s case, he would later say, amounted to “one big Brandeis brief,” a term that refers to twentieth-century litigator Louis Brandeis, who in 1908 pioneered a style of argument that rejected the conservative notion of the law as a static set of truths etched into stone at the time of the nation’s founding. and instead demanded that it respond to changing realities, taking into account not only the framers’ original intent and precedent but new facts that could be gleaned from sociological and scientific study.

Cooper and many “originalists” like him viewed social science research as a treacherous and philosophically flawed foundation upon which to build constitutional rulings. The Constitution, they argued, is “dead, dead, dead,” as Justice Scalia liked to say, and its interpretation should not change over time as a result of studies that may or may not reflect the biases of those conducting them, or scientific consensus that might later prove wrong.

But the debate was largely academic. The power of social science to move the justices in major civil rights litigation was undeniable. In
Brown v. Board of
Education,
for instance, the high court relied on the testimony of some thirty witnesses and reams of sociological data in concluding that the “separate but equal” doctrine used to justify segregation in the public schools was in fact inherently unequal, generating in black children “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Among the evidence the justices considered was a powerful study in which black children who attended segregated schools were given two dolls. Overwhelmingly, they chose the white doll to play with and associated the black doll with being “bad.” Chief Justice Earl Warren, writing for the Court, declared that “in approaching this problem we cannot turn the clock back” to 1868, the year that the Fourteenth Amendment, with its promise of equal protection under the law, was adopted, or even to 1896, the year the high court upheld segregation laws. “We must consider public education in the light of its full development and its present place in American life throughout the nation.”

Olson hoped the courts would do the same when it came to marriage. The first order of business, then, was to help the court understand the roots of the institution, and to that end, the team called Nancy Cott, a professor of history at Harvard University and the author of the book
Public Vows: A History of Marriage and the Nation
.

Far from being the tradition-bound union that Cooper had portrayed, Cott testified that marriage is a complex and dynamic institution that has evolved over time to reflect society’s changing values. It has not always been a union of one man and one woman, she said; the Bible is filled with examples of polygamists. The ancient Jews practiced polygamy, and it is still practiced in many Muslim cultures today. Nor is marriage an institution whose historic central purpose was to encourage responsible procreation, though that certainly is a benefit, she said. In this country, the ability to bear children has never been a prerequisite for marriage.

“In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile.”

Rather, she testified, marriage is both a private and public institution. It is “the principal happy ending in all of our romantic tales,” with a social meaning that domestic partnership cannot approach. And, she said, as far as the state is concerned, it is primarily a tool of political governance.

Initially, it set up men as heads of households so that they would be economically responsible for their spouses and for all of their dependents, whether biological children, relatives, slaves, or apprentices. The point, she said, was to make it easier for a sovereign to govern a large, varied population by dividing it up into the smaller units now known as households. “The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors.”

The ability to marry has also long been equated with liberty in the United States, she testified, becoming more inclusive over time as the discriminatory impulses of the majority fell by the wayside. “This can be seen very strikingly in American history through the fact that slaves during the period, the long period that American states had slavery, slaves could not marry,” she said.

“Why were slaves barred from marrying?” asked Ted Boutrous, who was handling her direct examination.

“Because as unfree persons, they could not consent,” she answered. “They lacked that very basic liberty of person, control over their own actions that enabled them to say, ‘I do,’ with the force that ‘I do’ has to have. Which is to say, ‘I am accepting the state’s terms for what a valid marriage is.’”

“What happened when the slaves were emancipated?” Boutrous asked, lingering on this point, because it was critical to their due process argument that marriage was a fundamental liberty right.

“They flocked to get married,” she answered.

Citing contemporaneous historical accounts, Cott said that an ex-slave and Union soldier called the marriage covenant “‘the foundation of all our rights,’ meaning that it was the most everyday exhibit of the fact that he was a free person.”

“In addition to the restrictions on slaves marrying, do any other restrictions come to mind?” Boutrous asked.

“Yes,” Cott answered. In the mid-1800s, a series of laws were passed barring white women from marrying the Asian laborers who had migrated by the tens of thousands to the nation’s western states.

So, Boutrous asked, when Cooper, in his opening statement, declared that “racial restrictions were never a definitional feature of the institution of marriage,” was that accurate?

“No,” she answered.

He pressed the point, asking if she saw any parallels between the race restrictions of the past and the restrictions that Prop 8 had put in place forbidding same-sex couples from marrying.

“I think that the most direct parallel is that racially restrictive laws prevented individuals from having complete choice on whom they married, in a way that designated some groups as less worthy than other groups.”

And what about the justifications that were proffered for restricting interracial marriages? Boutrous wanted to know.

“These laws were defended as naturally based and God’s plan,” she said, adding that efforts to undo them were met with predictions very similar to the predictions now being made about what would happen if gays and lesbians were allowed to marry, that the institution of marriage “would be degraded” and somehow “devalued.”

Did that happen? she was asked.

No, she answered, citing statistics that showed that people continued to marry apace.

The team had predicted that the most difficult cross-examination question Cott was likely to face was, as Chris Dusseault had put it, “If marriage is so adaptable, why has it always been between a man and a woman”—or, as Cooper frequently called it, a “gendered institution” by its very nature?

We need a good way for her to say, well, we’re at a point in history where that is not relevant, Boutrous had said.

Now he turned to how marriage laws in the United States had changed over time to reflect society’s evolving understanding of the role the different sexes play in a union.

Early on in our country’s history, Cott said, the state dictated the roles of spouses through a doctrine called “coverture.” When a woman married a man, she lost her independent legal and economic identity, “which is really why Jane Doe became Mrs. John Smith.” It was a reciprocal bargain in which the husband’s duty, enforced by the state, was to provide the wife and his other dependents with basic material goods, while the wife was obligated to lend him all her property and serve and obey him.

“That asymmetry was seen as absolutely essential,” Cott explained,
“because assumptions were, at the time, that men were suited to be providers, were suited for certain sorts of work, whereas women, the weaker sex, were suited to be dependent.”

But with the move away from an agrarian society and into a more mechanized one, the sexual division of labor became less rigid. As the suffrage movement gained steam and women were given the right to vote, the doctrine of coverture seemed more and more archaic. By the 1970s, the laws had caught up, and today the spousal roles the state assigns are gender neutral, obligating both spouses to support one another.

Because the sexual division of labor is no longer the founding feature of how economic benefit is created in this country, she said, “there is no longer an expectation that the man-woman difference is needed to found [a] household.” And given that couples can and do have children outside of the natural procreative process, she added, “it seems to me that by excluding same-sex couples from the ability to marry . . . that society is actually denying itself another resource for stability.”

It was a strong point to end on, and Boutrous decided to do so. “Your Honor,” he said, “I think I may have covered the waterfront.”

David Thompson, the trial lawyer on Cooper’s team, did not have Boies’s flair when it came to tearing into adversarial witnesses. But he was workmanlike and thorough. His habit of ending most of his questions with the word “correct?” was vaguely annoying in its repetitiveness but effective in eliciting the kind of yes-or-no answer that he wanted.
Over the course of the trial, Judge Walker would come to admire Thompson as the best on Cooper’s team.

Cooper’s researchers had compiled dossiers on each of the expert witnesses whom Olson planned to call. Some, perhaps not surprisingly given that gay and lesbian studies had long been considered an academic backwater, were themselves gay. Cooper, assuming Olson and Boies would “pull those teeth” themselves, had decided not to raise their sexual orientation as an issue. But the plan was to try to paint the experts as impassioned activists whose work should not be considered reliable for the purpose of deciding this case.

Approaching Cott, Thompson set to it. With red hair and a plump face
framed by preppy wire-rimmed glasses, he looked younger than his forty-one years, making it easy—and dangerous—to underestimate him. He had not become a managing partner of Cooper’s firm by happenstance.

Thompson began by noting that Cott had, without compensation, participated in a number of the cases challenging same-sex marriage bans in state courts, describing herself in one deposition as “somewhat between a neutral party and an advocate.”

“You think that gays and lesbians should have the right to marry, correct?” he asked.

Cott, who is straight, refused to budge. “I have come to that view from my research and study of the history of marriage, yes.”

For the next two-plus hours, he questioned her about her past writings, years-old syllabi, and even Bill Clinton’s dalliance with White House intern Monica Lewinsky, hoping to show that her views were out of the mainstream. “In your opinion, morality has been uncoupled from marriage, correct?”

Cott answered in an impatient tone that a schoolteacher might use with a particularly disappointing student. If you are quoting my work on Clinton, she lectured Thompson, the only point she had been trying to make was that the law no longer saw adultery as a crime. The public’s forgiveness of the president showed that people believed that spouses themselves, not the state, were best able to judge what is appropriate within a marriage.

There was little Thompson could do about her most powerful testimony, regarding the history of slavery and marriage, besides to note that interracial marriage bans were not as widespread as today’s bans on same-sex unions. Instead, he worked to reframe the debate, from one about liberty to one involving a conflict between religion and tradition on the one hand and modernity on the other.

Cott acknowledged that it was true that civil marriage had never been hermetically sealed off from religion; the church, she acknowledged, played a role. And while polygamy was practiced in some parts of the world, she agreed with Thompson that the American tradition of monogamy reflected its Christian traditions. But when Thompson began a discourse on “Jesus Christ and his apostles,” Cott curtly shut him down: “I know very little about Jesus Christ and his apostles.”

At times, Cott appeared to be a mere prop for Thompson, who seemed to be
speaking right past everyone in this courtroom and directly to the justices of the Supreme Court, like when he asked Cott whether she had ever read the writings of Edmund
Burke.

To Cott, the question seemed to come out of left field, but as Cooper watched the exchange, he was animated, happy even, rocking back and forth in his chair and twiddling his thumbs.