Forcing the Spring: Inside the Fight for Marriage Equality (30 page)

Chad, in his usual plan-for-the-worst mode, had insisted on splitting up the team in case one plane fell from the sky. His mind had already skipped ahead to the next phase of the case.

The Ninth Circuit Court of Appeals was still considered the most reliably liberal in the country, but in recent years it had become decidedly less so. President George W. Bush had appointed seven of the court’s twenty-seven active members during his tenure. A randomly selected panel of three judges would hear the Prop 8 case. Everything would depend on the draw.

Kristina, checking her e-mail, saw the reaction statement Meg Whitman’s campaign had released and smiled. It was a bland nothing-burger, better than she could have hoped. “Today’s ruling is the first step in a process that will continue,” the candidate said.

In West Hollywood, Rob Reiner was waiting when their bus pulled up to the rally. He engulfed Chad in a bear hug, the way a father would his son.

“That speech—I was so proud,” he said.

Amanda Crumley had hired an advance team, political veterans she knew from the Clinton administration, to deck out the West Hollywood stage with American flags. Bruce Springsteen’s “Born in the USA” was booming out of speakers, making the event feel like a campaign rally. (The Clinton playlist, she joked, is a small one.)

The crowd went wild when Olson, their conservative champion, took the stage. He and Boies lingered behind long after Chad and the plaintiffs stepped down, working the rope line like rock stars, shaking outstretched hands and reaching out to touch the shoulders of people farther back.

“They’re on a roll,” Kristina said to Matt McGill.

He laughed. “Like they’re running for gay Congress.”

Chad, looking back on the day later, didn’t remember much except the sound of news helicopters overhead and the brightness of the lights. Squinting out at the crowd through his glasses, he saw that people were openly crying, and that’s when it hit him.

“
Oh my God—Prop 8 is unconstitutional. That’s why all these people are here.”

W
atching Ted Olson craft his arguments for an appellate court was a lot like watching a world-class bridge player. Olson loved the card game, and over drinks one night, David Boies compared him to Charles Goren, one of its all-time champions.

“At tournaments, people can sit behind someone and watch as long as they don’t talk. And so at the end of the game, a woman says to Goren, ‘You didn’t make a single play all night I couldn’t have made.’ He said something like, ‘That’s probably right. But could you have made all of them with the consistency that I did?’ That is what Ted does.”

Boies knew better than most. In the
Bush v. Gore
case that had pitted the two men against one another, Olson had made one deft play after the next. He focused on the Supreme Court, arguing that the recount in deadlocked Florida was unconstitutional on numerous grounds. Another team prepared a pragmatic set of pleadings in the event that the justices declined to step in and stop it, aimed at ensuring that ballots likely to favor Bush were counted and those likely to favor Gore were thrown out. A third group of lawyers that included Chief Justice John Roberts, who was in private practice at the time, did the legal spadework on a plan to have the Florida Legislature declare Bush the president regardless of the recount outcome.

It was a scorched-earth litigation model designed to produce a Bush win
under almost any scenario. And it was one that Olson replicated in his multipronged approach to tearing down Proposition 8, as the case moved into its next phase at the Ninth Circuit.

The court could rule in his favor on due process grounds by finding that Proposition 8 violated the plaintiffs’ fundamental right to marry, on equal protection grounds by finding that Proposition 8 discriminated against a vulnerable minority group and could not meet the court’s heightened scrutiny test, or it could find that bans like Proposition 8 were born out of animus toward gays and lesbians and could not survive even the rational basis test because they served no legitimate state purpose.

But the team’s trump card involved a relatively arcane legal doctrine called “standing” that had nothing to do with marriage or discrimination. Under Article III of the Constitution, the U.S. Supreme Court may only decide actual “cases or controversies.” The idea behind that limitation is that unelected judges should be constrained from injecting themselves into the political process by offering freewheeling legal advice to the democratically elected branches about how the government ought to run. What it means in practice is that before a federal court can decide the merits of a constitutional challenge, it must first decide whether the party invoking its jurisdiction has the right to be in court.

In order to have what is called “Article III standing,” a party must have a particularized stake in the outcome of a case, meaning the party must show actual or imminent injury if the court does not step in to redress it. At the district court level, the burden was on the plaintiffs, because they were the ones asking the court to overturn the law. Their stake was clear-cut and undisputed: Kris and Sandy and Jeff and Paul wanted to marry, and Proposition 8 barred them from doing so. But once the plaintiffs prevailed in Judge Walker’s court, the burden shifted to the party seeking to overturn that decision.

The state clearly had standing to defend a law passed by its citizens. But did Cooper’s clients? Before the trial had even begun, some of the younger members of the Gibson Dunn appellate team had concluded that Cooper’s ability to have a higher court consider the merits of his argument if he lost at trial was in serious doubt, thanks to two Supreme Court decisions.

A 1986 opinion in a case called
Diamond v. Charles
made clear that the mere fact that a party had been allowed to intervene at the trial level to defend
a law did not automatically confer standing to appeal. At issue in that case was a decision striking down a restrictive Illinois abortion law that the state had declined to appeal. The court found that the “conscientious objection to abortion” expressed by a trial court intervener was not sufficient to confer standing on appeal: A party must show “a direct stake in the outcome” if the decision is not overturned.

And in a unanimous 1997 opinion in a case called
Arizonans for Official English v. Arizona,
the Supreme Court had cast “grave doubt” on whether ballot proponents like Cooper’s clients could meet that test, saying it was not enough to share a generalized interest with members of the public in the proper application of the Constitution. The comment by Justice Ruth Bader Ginsburg was made in passing, in what lawyers call dicta, and as such was not binding. (The Court ultimately dismissed the case, which involved a ballot initiative mandating that state workers speak English only, on other grounds, ruling that it was moot because the Spanish-speaking employee who had challenged the law had left her job by the time the appeal was filed.) Still, Justice Ginsburg’s words seemed like a pretty good indication of where the justices might wind up in this case.

“
If the governor and the attorney general decline to defend the law, that could be it,” McGill recalled telling Olson one day over lunch at Spezie, a restaurant near the firm’s Washington, D.C., headquarters. “This case could be over.”

It was not the way either Olson or Chad wanted to win, and both were conflicted. They wanted the courts above Walker’s to uphold his ruling and strike down same-sex marriage bans across the nation. If Cooper could not appeal, Walker’s ruling that Proposition 8 was unconstitutional would remain in force, but have no precedential impact beyond California’s borders. But given that the courts were duty-bound to decide the standing question anyway, they would be derelict if they did not make the argument themselves. And if the case made it past the Ninth Circuit to the Supreme Court, the standing argument would likely find a receptive audience in Chief Justice Roberts. He had a particular interest in standing doctrine that dated back to his days as a young lawyer in the Reagan Justice Department, when he was a forceful advocate for challenging the standing of litigants who were trying to drag the administration into court over its environmental policies.

The thinking was that Olson could continue to emphasize the broad arguments designed to produce a fifty-state victory, while offering the Supreme Court an alternative that might be attractive to some of the Court’s conservatives unlikely to be with them on the merits.

“This is the way I get to nine votes,” Matt McGill explained one day during the trial. “The chief hates big, controversial cases, and this is one.”

Which is why, on the day Judge Walker’s decision came down, two phone calls had been placed. Chad had called Governor Schwarzenegger’s chief of staff. Boies had called Attorney General Jerry Brown, whom he knew personally.

Both were assured that they need not have bothered. The state had no plans to appeal Judge Walker’s decision in the Proposition 8 case.

The team that reassembled at Gibson Dunn’s San Francisco offices on Saturday, December 3, 2010, was a pared-down version of its former self. Boies was there, fresh off of another big win; he had recently won a record $1.3 billion in damages on behalf of the Oracle Corporation in a software piracy case. But with the Gibson Dunn team set to take center stage now that they had reached the more cerebral appellate phase of the case, most of the trial lawyers from Boies’s firm had moved on to other cases.

Trial courts resolve factual disputes while appellate courts look only at whether the law was correctly applied. The result was an operation that felt less kinetic and more Socratic.

Olson was spending most of his time holed up in his office, restudying the case law, honing his argument, and sending out requests for information via Ted Boutrous, who joked that he sometimes felt as though he were managing a Triple Crown racehorse: “Water! Carrots!”

They had brought along Gibson Dunn’s appellate A Team to play devil’s advocate during preargument prep sessions: Olson’s two Supreme Court wingmen, Matt McGill and Amir Tayrani, were joined by Theane Evangelis, a former clerk to Justice Sandra Day O’Connor who worked closely with Ted Boutrous and had been hovering quietly in the background since the inception of the case, drafting the initial complaint and portions of every brief filed since.

Question to Olson: What would happen if the evidence showed that divorce
rates climbed in Massachusetts after it recognized same-sex marriage? We know that it did not show that, but what if it had?

Answer: The proponents can’t prove cause and effect. It would be like outlawing football because it makes the weather grow cold.

Better answer: If divorce rates rose after slaves were freed, would that make prohibiting ex-slaves from marrying constitutional?

McGill was so tough on Olson at one session that Chad pulled him aside afterward. “Nice job, Justice McGill,” Chad said. “You’ll make a good Supreme Court justice someday. We just have to liberal you up between now and then.”

McGill laughed. “I think this case is going to take care of that.”

Arguments were set for December 6. The Ninth Circuit had given each side an hour to make its case, half of which had to be devoted to the standing question. Boies was going to handle that portion of the argument, leaving Olson free to focus on the merits of the constitutional challenge. The three-judge panel that would hear the case had been named the previous week.

Judge Randy Smith, sixty-one, was a Mormon from Idaho appointed by President George W. Bush as part of Bush’s quest to change the makeup of the Ninth Circuit. He was conservative, though not in a chest-thumping kind of way. Stephen Reinhardt, seventy-nine, was considered the liberal lion of the court. His past rulings made it clear that he believed laws targeting gays and lesbians should be subject to heightened scrutiny. And he made no apology for the fact that his fondness for big, sweeping opinions had made him one of the most reversed judges on the appeals court bench.

As Terry Stewart put it, “A lot of times he doesn’t give a fuck what the Supreme Court thinks.”

On the surface, then, the question appeared to be whether Reinhardt could bring Michael Hawkins, a cautious Clinton appointee who viewed himself as a moderate, along for the ride. But there was a wrinkle.

Cooper had filed a motion demanding that Judge Reinhardt recuse himself, citing the fact that Reinhardt’s wife was an outspoken supporter of same-sex marriage who had worked to defeat Proposition 8, as well as a news report that she had engaged in “confidential discussions” with the plaintiffs’ attorneys.

Reinhardt had curtly denied Cooper’s request the day before. Justice Clarence Thomas’s wife had done work for a conservative think tank that was challenging the constitutionality of Obamacare, the president’s overhaul of the
nation’s health care system, and Justice Thomas had no intention of recusing himself from that case. Reinhardt chastised Cooper for an “outmoded conception of the relationship between spouses” in a follow-up order explaining his decision. The court’s rules had changed since the days when judges were told to ensure that their wives not participate in politics, in part at Reinhardt’s urging: “I wrote the ethics committee and suggested that . . . even if it were desirable for judges to control their wives, I did not know many judges who could actually do so.” His wife’s views, he said, “are of no consequence,” and “cannot be imputed to me, no matter how prominently she expresses them.”

Chad and the rest of the team found the entire exchange more than a little ironic. Reinhardt’s wife was Ramona Ripston, the longtime executive director of the ACLU of Southern California. And the “confidential discussions” vaguely referenced in the article Cooper cited took place over that lunch at the Reiners’ home a year and a half ago, the one where Ripston and her colleagues from the ACLU and Lambda Legal had denounced them as misguided outsiders whose inability to count to five votes on the Supreme Court could set the movement back decades. If anyone should worry about Reinhardt’s presence on that panel, it was the plaintiffs.