Forcing the Spring: Inside the Fight for Marriage Equality (22 page)

Most lawyers won’t ask a question to which they don’t know the answer. Then again, most lawyers aren’t Boies.

“During the break, did you talk to anybody about your testimony?” he asked Tam when court resumed.

Boies knew that he had—a member of the team had spotted Tam in a huddle in the hallway—but he did not know what was said.

“I talk to my lawyer.”

“You talked to your lawyer,” Boies said, then, after a pause, “What did you say to your lawyer?”

“I said I felt like a naughty boy being put in front of a classroom and being mocked at.”

“And what did your lawyer say to you?”

“He laughed.”

“One last question, Dr. Tam. You indicated earlier that you felt like a minority; do you remember that?”

“Yes.”

“And you are aware that there were periods, unfortunate periods in our history, when Asian Americans were limited in who they could marry, do you know that?”

“Uh-huh. Yes.”

“And I take it if those laws were present today, you would feel very aggrieved by those laws, would you not, if you couldn’t marry the person you loved?”

The question prompted another objection, but Tam answered anyway. “Yes.”

At that evening’s press conference, Boies declared that Tam’s testimony was “one of the clearest windows that you have into the minds and hearts and souls of what was really involved in Proposition 8.”

Andy Pugno, the lawyer Cooper had designated to handle the press, could do little more than complain about what he called an unwarranted intrusion into protected speech. “You are witnessing history,” he told reporters. “For the first time ever in an initiative process, a supporter of an initiative has been put on the stand to be examined about his political and religious views. That is absolutely astonishing.”

M
idway through Cooper associate Howard Nielson’s mind-numbing cross-examination of Dr. Gregory Herek, the plaintiffs’ expert on sexual orientation, David Boies whispered into the ear of the lawyer seated beside him. “
Gotta give Nielson credit,” he said. “He is making sex boring!”

Nielson, a law professor at Brigham Young University and a member of Cooper’s firm, had clerked for Justice Kennedy and worked as a deputy assistant attorney general in the second Bush administration. But trial work was not his specialty. His questions rarely deviated from a prepared script, and with his dark suit, wan face, and brooding manner, he looked a bit like an undertaker.

“He ought to be doing wills,” Olson told Matt McGill.

To stay awake at the counsel’s table, some of the lawyers had begun keeping track of how many times Nielson said “thank you” after the witness answered one of his questions. By midmorning, it was up to 180. Cooper’s wife nodded off while listening to the nasal sound of Nielson’s voice.

Herek, a professor of psychology at the University of California at Davis, had taken the stand on Friday morning, January 22, at the end of the second week of trial. He was the plaintiffs’ last expert witness, and his direct testimony was to the point and lasted just under an hour.

A substantial body of research shows that for the vast majority of people, sexual orientation is not a choice and is not readily changeable, Herek told the
court. In his own survey of twenty-two hundred subjects, for instance, 87 percent of gay men and 70 percent of lesbians said they experienced no choice or very little choice about their sexual orientation.

For that reason, the American Psychological Association had concluded, based on available research, that therapists should steer clear of the type of sexual orientation “conversion” therapy that Ryan Kendall—and, unbeknownst to anyone in the courtroom, Judge Walker—had undergone. Not only had it proven ineffective, but it was also potentially dangerous, according to a pamphlet that the group, along with a coalition of other associations representing psychiatrists, pediatricians, teachers, school counselors, and principals, had put together for educators.

A broad consensus had determined that homosexuality is a normal expression of human sexuality. But efforts by religious and political organizations that are “aggressively promoted to the public” have “serious potential to harm young people,” the pamphlet read, because by presenting the view that sexual orientation is a curable mental disorder, “they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The notion that most people do not choose their sexual orientation seemed so obvious to Boies that he was not sure that the team even needed to put Herek on the stand. “There’s no evidence, no study that finds that people wake up and say, ‘Today I’ll be gay! This seems like a gay day!’” he said.

But Cooper’s point was more nuanced. As part of his strategy to keep the court from applying heightened scrutiny, his goal was to try to show that sexual orientation was not as fixed a trait as gender or race. In service of that mission, Nielson spent five hours plodding through everything from the 1935 writings of Sigmund Freud to the work of Alfred Kinsey, a famous sex researcher whose studies in the 1940s and 1950s were credited with bringing taboo subjects like masturbation and adultery out into the open.

Nielson began with what he argued was a definitional problem in establishing gays and lesbians as a new suspect class. Researchers studying homosexuality use different measures for different purposes: whether a person is attracted to a member of the same sex, whether a person engages in sexual activity with a same-sex partner, and whether a person identifies as gay, lesbian, or bisexual.

It is true that some subset of men who have sex with other men do not identify as gay, Herek said in answer to Nielson’s many questions on the subject,
and it is also true that some people who identify as gay do not engage in gay sex, though that, Herek joked, could also be said of some heterosexuals.

Judge Walker cracked a smile at that one.

But Herek said most people—he put the number at 92 percent—are remarkably consistent in terms of their identity and attractions.

What about studies that showed that a significant percentage of men and women who had a same-sex partner in the past five years also had at least one opposite-sex partner? Nielson asked. And was Herek aware that one of the plaintiffs had once been married to a man?

Sandy was just grateful that her two boys had left by that point. They had wanted to come on a day when there would not be a lot of media attention, but her happiness at seeing them there had turned to mortification when the testimony turned out to be all about sexuality.

Given the stigma attached to being gay, Herek told Nielson, it is not surprising that many people try to have a relationship with or even marry a person of the opposite sex before coming to terms with their true sexuality. That is why researchers generally understand sexual orientation as an enduring pattern of attraction and behavior across a person’s life.

Still, “sexual orientation ranges along a continuum, from exclusively heterosexual to exclusively homosexual, correct?” Nielson pressed.

The concept, sometimes referred to as the Kinsey scale, was a useful way to look at human sexuality, Herek answered. But he said that while sexuality can be fluid, more so for women than men, the research showed that most people are bunched up at one end of the Kinsey scale or the other.

“We keep thinking that the judge is going to stop him,” Boutrous said during one recess. “We don’t even dispute what he is saying. Some people change, but most do not.”

But Nielson, seemingly incapable of letting one question suffice when his checklist contained ten, kept going, even, and somewhat oddly, invoking Judge Richard Posner to support his argument that environmental factors, rather than biology, may play a role in determining a person’s sexual orientation.

At one level, the invocation made sense: Posner was a Reagan appointee, a prolific writer whose searing intellect had made him one of the most influential appellate judges in the country and an opponent of judicial intervention in the marriage debate.
But Posner’s writings about the nature of
homosexuality actually undercut the point Nielson was trying to make:
It is, “if not genetic, certainly innate,” he had written, a conviction that had only grown stronger with time. “It’s impossible to change,” he said in a phone interview from his chambers. “If it were changeable, everyone would change, because it is a big disadvantage.”
Posner had also rejected as “unlikely” another of Cooper’s central arguments, that allowing gays to wed could harm the institution of marriage.

Still, Cooper on balance thought that Nielson had done what he set out to do. It might not have been scintillating, but ultimately Cooper believed that this would come down not to sex, but rather to how the courts applied law and precedent to this particular set of facts for the purpose of determining the appropriate level of review.

That was not, however, the thrust of the questions that Andy Pugno, Cooper’s co-counsel, faced at the midday press conference.

“You say that sexual orientation is a changeable trait,” one reporter asked. “Do you think that your own sexual orientation is changeable?”

“I’m not going to answer a question like that,” Pugno angrily retorted.

If homosexuality can be changed, came a follow-up, can the same be said for heterosexuality?

Pugno, glaring at the questioner, snapped, “I’m not going to argue the case.”

Shortly before 5
P.M.
, Nielson finally called it quits. Ethan Dettmer, the Gibson Dunn partner assigned to handle Herek’s testimony, kept his redirect as tight as his direct examination, focusing mainly on the definitional issues that Nielson had raised.

Researchers also encounter definitional issues in the context of race, Herek told the court. A person considered African American for the purpose of membership in that established suspect class might in fact be of mixed race. And just as it is not always readily apparent that a person is gay, a person’s ancestry may not always be readily apparent from their skin color.

“They may develop an identity as a member of one race or the other race or as a mixed race individual,” Herek said. “So, no, sexual orientation is
certainly not the only area in which things get pretty messy when we are trying to study them.”

The second point was more commonsensical. If two women want to marry each other, is it “a reasonable assumption” that they are lesbians, Dettmer asked, just as it would be reasonable to assume that if two men want to marry each other they are gay?

“Yes,” Herek said.

“No more questions, Your Honor.”

As Herek stepped down, Judge Walker wryly took note of Nielson’s long-windedness, telling the witness, “I think you win the long-distance award.”

“All I kept thinking was, ‘When will it end?’” Herek said.

The professor, along with several of the lawyers who helped prepare him, had repaired to Jardinière, a nearby California-style French restaurant, for a much-needed Friday night drink after court.

Terry Stewart was there, as was Sarah Piepmeier, the young lesbian on the Gibson Dunn team who had prepped Kris and Sandy and pushed to have Meyer testify on the effects of stigma. The case was consuming all the lawyers on the team, both physically and emotionally, but especially those who were gay.

“Sarah has slept maybe ten hours this week,” Dettmer said.

She just shrugged. She’d caught a quick nap the previous night in one of the conference rooms. “We have to win.”

At one point during the trial, Piepmeier had an irrational urge to introduce her wife to the only female lawyer on Cooper’s team, Nicole Moss. The two dealt with one another regularly and had a cordial relationship, but Piepmeier could not help but take Moss’s position personally. “I wanted to see her reaction to being introduced to a gay woman’s wife,” she said, “and whether she’d recognize that her whole purpose in this case was to deny me that.”

Sitting through the testimony on stigma, Piepmeier had been forced to confront her feelings in a way that she had not done since coming out as an
undergraduate at Wellesley College. She had intuitively understood the burdens of being a lesbian. She’d long felt that she was a disappointment to her family; her mother for years had wondered what she had done wrong as a parent, she said. It was only after Olson became involved in the case that she had begun to refer to her daughter’s sexuality when discussing her with friends. “That really made a difference,” Piepmeier said, “like if he’s okay with it, maybe it isn’t something to hide.”

But to have Meyer, a straight scientist, say, “What you are experiencing is this,” giving a name to it, had been cathartic in a way that she could not fully explain. His conclusion that gays and lesbians have a reduced sense of self-possibility particularly resonated. In law school, it had been hard to find a role model who looked like her, someone through whom she could envision her own success. “There’s no mirror,” she said.

Even now, as a thirty-five-year-old up-and-coming associate at a powerhouse law firm, Piepmeier, with her scrubbed skin, cropped hair, and mannish suits, felt set apart in a way that at times made her think that she did not truly belong. When the driver of one of the minibuses that ferried everybody to and from court called her “sir,” she did not even bother correcting him.

“That happens to me all the time,” she said. “I’m like, really? In San Francisco?”

Terry Stewart, who did look like her, could relate. Piepmeier could remember watching Stewart argue the California Supreme Court case and thinking, “God, I’d love to meet her someday.”

But despite her accomplishments, Stewart also had trouble with self-confidence. After law school, she had clerked for Judge Phyllis Kravitch, one of the first women to serve on a U.S. court of appeals. Stewart recalled the judge, out of concern for her, suggesting she see a psychiatrist, because if she persisted in being a lesbian, it could harm her law career.
Though Stewart knew the judge meant well, it was crushing coming from a trailblazing woman she greatly admired.