Forcing the Spring: Inside the Fight for Marriage Equality (4 page)

The movement was at a critical juncture, he continued, and “as Martin Luther King said on the steps of the Lincoln Memorial in 1963, ‘This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism.’” Full equality, he said, could only happen at the federal level.

“The strategy of the past decade has failed,” he declared, a direct rebuke to many in the audience. “We have lost state and local fights time and again.

“It has been thirty years since Harvey Milk gave his life in our struggle for equality, and we will not wait thirty years more. It is time for us to stop asking for crumbs and demand the real thing.”

If there was applause, Black didn’t remember any. Instead, he recalled an ocean of pursed lips and crossed arms, and that he was literally trembling as he walked off the stage. Wolfson was silently seething. The idea that this newcomer thought his strategy timid and incremental infuriated him; no one wanted full federal equality more than him, but national change required more than wishful thinking.

“
Harvey Milk didn’t start by running for president,” he later grumbled. “He ran for city supervisor, and he ran and lost twice before he won.”

Tim Gill, whose foundation was the largest funder of gay rights causes in the country, denounced Black outright, telling the crowd he was naïve and misguided. Chad, who was standing in the wings with Bruce Cohen, was shocked at the level of open hostility. After all, Black hadn’t even specifically mentioned marriage or a federal lawsuit.

“Chad was saying, ‘Oh my God, we are going to be loathed and hated. How are we going to sell this?’” Black recalled.

And things were about to get worse.

On May 14, 2009, Chad, Kristina, and Cohen once again assembled for lunch at the Reiners’. It was time to talk to the lawyers who had been fighting this battle for years—and ask for their support.

Jenny Pizer, the law and policy director of Lambda Legal, was there, as was Jon Davidson, the group’s legal director. Lambda was the oldest and largest legal organization devoted to fighting for the rights of gays and lesbians. Ramona Ripston, executive director of the American Civil Liberties Union’s Southern California office, had also come with her chief counsel, Mark Rosenbaum. Both Lambda and the ACLU had been deeply involved in the effort to win the freedom to marry at the California State Supreme Court.

Since Olson’s involvement in a potential lawsuit was sure to be the subject
of controversy, it would not do to have him present the group’s still confidential plans. Instead, he sent an emissary: Ted Boutrous, a liberal forty-eight-year-old managing partner in the firm’s Los Angeles office with thick silver hair and a perpetual California tan.

Rob Reiner gave a quick synopsis of their discussions to date. Then he turned it over to Boutrous.

Boutrous and Olson had worked on numerous high-profile Supreme Court cases together, across a broad swath of the legal landscape. They had won limits on excessive punitive damages on behalf of corporate clients, worked with John Roberts before he became a Supreme Court justice on a case involving complex securities law, and litigated a major federal separation-of-powers case that constrained Congress’s ability to pass laws aimed at undermining Supreme Court decisions.

“Someone is going to bring a federal marriage lawsuit,” Boutrous said. “And you won’t find a better advocate than Ted Olson.”

But he hadn’t gotten far before the invited lawyers all seemed to pile on at once, a cacophony of criticism that grew increasingly heated. How dare they entrust something so important to someone who wasn’t one of them? They were upstarts who didn’t know what they were doing. They couldn’t get to five votes on the Supreme Court. This was going to have a terrible ending.

“
It just felt like there was a lot of disrespect for the fact that a lot of people who had been working on these issues for a very long time had a different viewpoint,” Davidson would later recall. “I was like ‘who are you?’”

It was not that the movement lawyers disagreed with the goal. But they were old enough to remember the terrible setback that had occurred when the Supreme Court, in a 1986 case called
Bowers v. Hardwick
brought by the ACLU, upheld the constitutionality of laws criminalizing sodomy. Chief Justice Warren E. Burger, citing the “ancient roots” of prohibitions against sodomy, had gone out of his way in a concurring opinion to quote Sir William Blackstone’s description of homosexual sex as an “infamous crime against nature.”

The consensus was that the case had been brought too soon, at a time when nearly half the states still had criminal sodomy laws on their books. Supreme Court justices tend to abide by a legal principle called stare decisis, which means, in Latin, “to stand by decisions and not disturb the undisturbed.” What it means in practice is that the justices are generally reluctant to overturn
previous decisions. It had taken seventeen years, and the repeal of antisodomy laws in all but fourteen states, for the Court to reverse itself and declare laws criminalizing gay sex unconstitutional in the
Lawrence
case. In the interim, the precedent that the Court set with its biting
Bowers
opinion had been relied upon by lower courts to uphold the military’s policy of discharging gay and lesbian service members, to find laws prohibiting gays and lesbians from becoming foster or adoptive parents constitutional, and to justify denying a lesbian mother custody of her children and a requirement that a gay father’s visit with his daughter be supervised.

How long would it take for a reversal on marriage, and what other precedents might be set, if Olson was to lose?

“Just wait,” Rosenbaum pleaded.

“
Really?” said Boutrous, by now angry. “Should we wait until the Mitt Romney administration?” he asked, referring to the likely 2012 Republican presidential nominee.

Davidson threw a multipage dossier on the dining room table, outlining all the conservative causes Olson had championed over the years. This, and more, would be released to the media if they went ahead with their ill-fated plan, he threatened.

“Wonderful,” Kristina retorted. “Do it. That only helps us.”

“We hired him because he is a conservative,” Chad added. “Someone who represented all these people”—he gestured at the dossier—“is going to be able to move public opinion.”

The meeting abruptly ended on that angry note. “Well, that,” Michele Reiner declared in her typically blunt but indefatigable fashion, “was a disaster!”

They were now on notice. If they proceeded, they would do so in the face of the full-throated opposition of the gay rights community. It was not the best of outcomes, but neither was it a real deterrent. They did not need the gay establishment. They had already put in place an organization with the wherewithal to go it alone. Their detractors just did not realize it yet.

The first fund-raiser for the American Foundation for Equal Rights had taken place the previous month in a private upstairs room at Mr. Chow, a Chinese
restaurant in Beverly Hills as famous for its celebrity clientele as its Peking duck.

Chad and Kristina spent an entire night coming up with the name for the nonprofit they had formed to raise money for the lawsuit. “
It has to have the word ‘American’ in it,” Chad had said. “And it shouldn’t sound like a gay rights group.”

All told, he and Kristina estimated they would need about $3.5 million to pay Olson’s bills and build a first-class media war room to publicize their effort. The Reiners had kicked in $100,000, and invited a select group of Hollywood friends to Mr. Chow on April 21 to begin raising the rest. Together with Chad, they had worked the room, explaining the needs of the new nonprofit—AFER for short—while Olson briefed the potential donors on the legal plan of attack.

Hundreds of thousands of dollars had been raised from people in the entertainment industry like John August, a lanky screenwriter with a shaved head whose credits included movies like
Charlie’s Angels
. Norman Lear was visibly moved by the enthusiasm in the room. “You know,” he mused, “we’re going to look back and remember this as the beginning.”

Then Lear, whose progressive activism included founding a group called People for the American Way to advocate keeping religion out of the public square, had made a suggestion that surprised Olson.

“
I think we should all join hands and pray,” Lear said.

And they did.

Success had bred success. Other industry people soon came forward; J. J. Abrams, a film director and creator of television hits such as
Lost
and
Alias,
had written a check with his wife, Katie, for $100,000. So had Ron Burkle, a billionaire supermarket magnet and a close friend of Bill Clinton whom Chad knew well from Democratic fund-raising circles. During one meeting with potential donors, Cohen had run in with a copy of a decision by the Iowa Supreme Court that made that state the third where gays and lesbians could legally marry, proof, he declared, that momentum was on their side.

But the biggest breakthrough had come when Rob Reiner reached out to David Geffen, an entertainment mogul who had made billions in the music and movie business, a huge Democratic donor, and a philanthropist who had been one of the largest contributors to the fight against HIV/AIDS. Geffen not
only had kicked in $1.5 million of his own money, but he convinced Steve Bing, another billionaire Clinton friend with whom Chad had worked on environmental causes, to match that gift.

“
Whatever you need, I’m there,” Bing told Rob.

The fund-raising piece had all been so easy. Within a matter of weeks, the lawsuit had been “green-lighted,” in movie parlance. They had the money to go forward. But should they? Following the meeting with Lambda Legal and the ACLU, Chad was beginning to wonder. Plenty of perfectly decent-sounding screenplays turned into box-office disasters, and here there were real lives at stake.

Chad had built a career in politics by effectively controlling the narrative and the circumstances that informed it. But with a legal case, so much would be out of his hands, starting with the judges who would be randomly chosen to hear the case as it made its way up to the Supreme Court. One unlucky draw and they could wind up hurting the very community they were trying to help.

“
Are we making the wrong choice?” Chad asked Kristina one night.

Suggesting they take a walk, she gave him the advice she always did when he went into his dark, Clinton war room mode, anticipating lines of attack and finding his own responses wanting: “Keep your focus.” She reminded Chad that he had asked Olson and Boutrous to consider all the arguments that had been raised by Lambda and the ACLU. Olson had taken the assignment seriously, rereading Martin Luther King Jr.’s famous “Letter from Birmingham Jail.”

“Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed,” the civil rights leader had written in 1963. “For years now, I have heard the word ‘Wait!’ It rings in the ear of every Negro with a piercing familiarity. This ‘Wait’ has almost always meant ‘Never.’”

The lawyers then produced a memo for Chad entitled “The Time Is Now.”

When it came to ending pernicious race-based laws, the Supreme Court “did not wait for the South to change; it changed the South,” the memo read. When the Court struck down interracial marriage bans more than thirty years before, only 20 percent of the country approved of allowing people of different color to marry.

One need look no farther than California, the memo continued, to see why
a state-by-state strategy of putting the fundamental rights of minorities up for a vote was not a fast track to achieving the ultimate goal of equal rights.

The world had changed since the Court upheld laws criminalizing gay sex in its 1986
Bowers
decision, the lawyers wrote, and it was highly unlikely that the Supreme Court would go out of its way to denigrate gays and lesbians in the way that decision did.

“Moreover, a loss in the Supreme Court would at worst result in a decision that the right to marry is a question for the states to decide which would require us to focus on obtaining change on a State-by-State basis—exactly where we are today.”