Forcing the Spring: Inside the Fight for Marriage Equality (31 page)

Just four months had passed since Judge Walker had issued his ruling, but it felt like much longer.

“It’s been such a blur for me, this year,” Boies said.

The fall had been a trying time for many on the team. Few knew it, but David Boies’s forty-eight-year-old daughter was in the end stage of her battle with cancer, and had only weeks left to live.

Chad had suffered a double loss. His father had died in October. Chad’s parents had divorced when he was small, and the two had never been close. But that made it difficult in its own way. Chad could still remember how frightened he had been as a boy when his father dropped him at a hunting stand with a gun before dawn one morning, then drove off, leaving him alone with the sound of the animals. He had cried after shooting his first deer, but when his father returned, he had pretended to enjoy it, bragging about how he “got him.” His mom had supported him from the moment he came out. But David
Griffin, who was sixty-two when he passed away at a hospital in Arkadelphia, Arkansas, had never told his son how he felt about him being gay, or about the case that Chad had made his life’s work. Now Chad would never know.

And just the day before, Chad had said goodbye to Kristina. First Lady Michelle Obama had offered her a job as her communications director. Chad had pushed Kristina to take it, just as she had pushed him to file the case. The two friends looked after one another, and Chad, having once worked at White House himself, knew it was too good an opportunity to pass up.

He had dropped her at the airport before heading to San Francisco. In her bag was a leather-bound copy of Judge Walker’s opinion, Chad’s going-away gift. They had both cried. Driving off, he was out of sorts. Who would accompany him to the antique flea markets he liked to haunt, or to Starbucks?

“I thought, I don’t know where I am going. Because I would always plan my day with Kristina.”

The war room felt empty without her. Yusef Robb, who might have filled the silence with his tough-talking banter, had left AFER to work on the campaign of Eric Garcetti, the man who would soon become Los Angeles’s next mayor. Adam Umhoefer and Amanda Crumley were e-mailing op-ed columnists and trying to book the plaintiffs and lawyers on news programs, but it was a harder sell this time around.

To the extent that anything related to gay rights was breaking through the wall-to-wall coverage of the explosive release by WikiLeaks of 250,000 secret U.S. diplomatic cables, it was the fate of the military’s Don’t Ask, Don’t Tell policy. A federal district court had declared the policy unconstitutional and ordered the military to cease enforcing it worldwide, and a White House effort to repeal the law was coming down to the wire in Congress. News organizations tend to shy away from incremental developments, and everyone knew that the Ninth Circuit panel likely would not have the last say on Proposition 8.

“We’re in the messy middle,” Amanda Crumley complained.

Still, momentum continued to swing their way. The first national poll to show majority support for same-sex marriage had been released in the weeks following Judge Walker’s ruling; Americans were still closely divided on the subject, the CNN survey found, but 52 percent now believed that gays and lesbians should have a constitutional right to wed.

And in California, where coverage of the trial had been heaviest, Jerry
Brown had defeated Meg Whitman in the governor’s race. That was significant because despite Chad and Kristina’s efforts, Whitman had eventually been forced to clarify that if elected she would defend the constitutionality of Proposition 8. Democrat Kamala Harris, who had vowed during her campaign not to waste the state’s “precious resources” appealing a law that had been found to be unconstitutional, had replaced Brown as attorney general, besting an outspoken supporter of Proposition 8.

But the team’s sense of triumph over those milestones had been tempered by a series of tragedies around the country. In the space of four weeks, four teenagers had committed suicide after being tormented by classmates because they were or were perceived to be gay.

In California, thirteen-year-old Seth Walsh hanged himself from a tree in his backyard rather than endure more fear-filled walks to school with the sound of “queer” ringing in his ears. In Texas, thirteen-year-old Asher Brown shot himself with his stepfather’s handgun after two years of being taunted and tripped down stairs by bullies. In Indiana, fifteen-year-old Billy Lucas hanged himself in the family barn after being kicked, called a fag, and told hours before his death that he didn’t deserve to live. And in New Jersey, eighteen-year-old Rutgers University student Tyler Clementi threw himself off the George Washington Bridge after his roommate secretly recorded him in an intimate moment with another male student and broadcast it online.

The news had hit Chad and some of the gay lawyers on the team particularly hard. “I am hopeful our case has had an effect, but then something like this happens, and you wonder,” Enrique Monagas said. “The Tyler Clementi case kills me. Because I’m sure when Judge Walker’s decision came out, I’m sure he had a moment of happiness. And still it made no difference to him.”

“Once again we are in a twenty-passenger bus, heading to court,” Chad said.

It was early in the morning of December 6, and the plaintiffs had just boarded. In a singsong, highly caffeinated voice, Sandy started making up her own words to an old children’s camp song as they made their way across town: “Here we sit like birds in the wilderness, birds in the wilderness, waiting for our rights.”

Chad groaned. “She has too much energy this morning.”

Everyone had settled into a groove, and the mood was far more relaxed as the bus pulled up to the court of appeals than it had been on the drive over to the district courthouse on that first day of trial, nearly a year earlier. As Chad put it, high-fiving both couples, “We’re going in there winners.”

CNN was waiting at the courthouse to interview all four plaintiffs, and camera crews from other networks were ready to go live with the short statement they each gave before heading inside. But what had once been anxiety inducing was becoming old hat.

“Government discrimination hurts everyone,” Kris said in perfect sound bite–ese. Jeff added, “The truth and the law are on our side.”

Chad checked his e-mail as they headed up the steps. No word yet from Kristina. He had sent her a note earlier to wish her luck on her first day at the White House: “I miss you. I love you.”

No one seemed particularly fazed by the truck plastered with signs like
PERVERSION
and
PREPARE TO MEET THY GOD
that was circling the courthouse. Kris just shrugged when one of the courthouse guards apologetically commented that “there are a lot of crazies out there” as she and her two boys passed through the metal detector.

Inside, the courtroom was packed. A number of judges who had not been chosen to hear the landmark case were sitting in the audience, adding to the historic atmospherics. The chief judge of the Ninth Circuit, Alex Kozinski, made a special appearance to welcome the lawyers. “Well, Olson,” he boomed, “after arguing so many cases before the Supreme Court, it’s good to see you’ve graduated and come to the Ninth!”

Alone and unnoticed, Terry Stewart slipped by and took her seat at the plaintiffs’ table. Tensions between Stewart and the Gibson Dunn team had been running high ever since she filed a separate brief with the Ninth Circuit on behalf of the city of San Francisco, which was still a party to the case. Her decision to file separately, rather than to simply sign on to the brief filed by Olson, had caused the first serious strategic rift on the team, and harsh words had been exchanged as the Gibson Dunn lawyers tried to force her to back down.

Cooper had always believed that one of the strengths of his case was that California offered so many protections for gays and lesbians, arguing during
trial and in briefs that it meant that the initiative could not have been motivated by prejudice. The brief Stewart had filed attempted to turn that argument on its head, arguing that Prop 8 was peculiarly irrational precisely because California’s gay-friendly laws neutered Cooper’s argument that the state had an interest in promoting one type of family structure over another.

The state’s domestic partnership law contemplates that gays and lesbians will form families, and it encourages them to become parents. The state, for instance, prohibits discrimination based on sexual orientation in adoption and foster care placement decisions. Stripping gays and lesbians of the ability to marry while leaving those policies in place, she argued, irrationally undermines the state’s interest in protecting the welfare of children by stigmatizing those being raised in same-sex households.

It was not that Olson thought it was a bad argument. His brief touched on several similar themes. It was the way she made it, and her motivations for doing so. Making the standing argument was one thing, since the court had to consider the procedural question of standing in any event before it could address the merits of their claim that Proposition 8 was unconstitutional. But if the Ninth Circuit panel found that Cooper’s clients did have a right to defend the initiative on appeal, Olson wanted it to adopt Judge Walker’s rationale, with the result that same-sex marriage bans across the Ninth Circuit, in conservative states like Idaho and Alaska, would fall. But Stewart was urging the court to adopt a California-specific line of reasoning that would result only in a finding that Proposition 8 was unconstitutional, and she was doing it with the express hope that the Supreme Court would decline to review a narrower ruling limited to just one state.

And therein lay the crux of the clash. The entire point was to bring this case to the Supreme Court so that gays and lesbians nationwide could marry. Unbeknownst to Stewart, Chad already had the Gibson Dunn and Boies lawyers working on a plan to file a new case challenging another state’s ban if Cooper’s standing problem or a California-only ruling by the Ninth Circuit prevented that from happening. The recent rash of suicides had only strengthened Chad’s resolve.

“These are the consequences to discrimination,” he had told the lawyers during one planning call. “It’s not just a ceremony in which we all wear a suit and call ourselves married.”

The lawyers were looking for states that offered virtually no protections for gays and lesbians and where the governor and the attorney general were guaranteed to fight them. Chad, being Chad, wanted them to choose one with a major media market.

Over a tense phone call Thanksgiving week, Stewart had tried to explain to Ted Boutrous that she was not trying to sabotage the broader case Olson was making, and indeed wanted it to succeed. She just wanted to hedge the team’s bet. “You guys have always been optimistic that the sweeping fifty-state argument will prevail in the Supreme Court,” Stewart recalled telling Boutrous. “But I am anxious. I respect that you are not. But I am.”

Boutrous had responded by telling her that she was no better than the groups that had opposed them at the outset. The word “traitor” crossed his lips before they both hung up.

Chad had been enlisted to call Stewart’s boss, Dennis Herrera. This was no time to get cold feet, from his perspective. The only thing that had happened between the time they filed the case and now was that they had won big in the district court.

The Ninth Circuit had allotted Stewart fifteen minutes to make her narrower argument. Olson wanted her to cede it to him so he could spend the limited time they had making the broad arguments that would require the panel to reach the same conclusions that Walker had, Chad told Herrera. The judges understood they had other, narrower options, without the team negotiating with itself.

When that failed to produce the desired result—“Dennis has my back,” Stewart said—Boies had called. Privately, Boies shared Stewart’s concern about the Supreme Court. In his perfect world, the plaintiffs would win the right to marry in a California-specific decision, show the justices and the country that allowing same-sex couples to wed in the country’s most populous state would not cause the institution of marriage to implode, and file another case somewhere else. But he was not in charge. Couldn’t she make her argument in five minutes, he asked, and give Olson the rest of her time? In the end, she had found it impossible to say no to Boies, but the episode left her feeling bruised.

“I adore David,” she said after hanging up the phone. “But with Ted, sometimes I feel like he thinks I’m an idiot and a jerk.”