Forcing the Spring: Inside the Fight for Marriage Equality (41 page)

His Institute for American Values had lost half its funding—“It happened like this,” Blankenhorn said, snapping his finger—but he did not regret writing the op-ed.

He had thought about calling Cooper and David Thompson to tell them
what he was about to do, knew, really, that he should have done. But he had not been able to force himself to do it. “I didn’t want for them to be mad at me,” he said. “I feel really bad about that. I like those guys.”

There had been moments when Cooper thought that if he had to do it all over again, he never would have agreed to take on this fight. “
Any case has its trying elements and its challenges,” as he put it, “and this one had more of them and at different kind of levels than any case, honestly, that I’ve been involved in.”

Terry Stewart, for instance, had really gotten under his skin when she told the Ninth Circuit panel that his motion to disqualify Judge Walker showed that he and his clients thought “gay people were inferior” and could not seem to understand that “different rules don’t apply to gay people.” Olson had told members of his team that he thought Cooper was going to have a seizure when, voice shaking, Cooper had glared and jabbed his finger at him in rebuttal.

And it had been upsetting to Cooper, “very upsetting,” he said. He might have lost, but he believed Walker’s relationship was at least worthy of the court’s attention, and was certainly not the act of bigotry that Stewart portrayed it to be.

“
I still think that we were entitled to know, did he have any desire to marry? Our point was simply that if a judge potentially stands in the same shoes as a party in the case, it isn’t crazy to argue that he should at least disclose that, if not recuse himself.”

But in terms of trying moments, reading Blankenhorn’s op-ed, in the
New York Times
of all places, ranked up there. “If fighting gay marriage was going to help marriage over all, I think we’d have seen some sign of it by now. So my intention is to try something new,” Blankenhorn had written. “Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.”

Cooper could have lived with that, just like he could live with President Obama’s endorsement. People of goodwill had changed their minds. But what was truly harmful, and legally consequential, was this passage:

“In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens. And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus.”

“Of course that was not helpful,” Cooper said. “I realize that if the dominant thrust of some political decision is seen to be motivated by hatred, then it’s not going to stand. It doesn’t matter how sound my legal proposition is.”

I
n a large meeting room on the first floor of the Human Rights Campaign’s headquarters in Washington, D.C., dozens of staffers sat at long tables, typing furiously on laptop computers and taking calls from the some of the seventy-five field organizers the organization had deployed around the country. Over big-screen televisions, political analysts for all the major cable networks were filling the airtime with babble as the country waited for the polls to begin closing and the results of election night 2012 to begin trickling in.

Since taking the job more than four months earlier, Chad had been traveling the country nonstop, raising money and urging the Human Rights Campaign’s 1.6 million members to get out and vote. All told, more than $20 million had been raised and contributed in Election 2012, making it the largest mobilization in the organization’s history. A whiteboard listed all the races, from Massachusetts to Hawaii, in which the gay rights behemoth had a stake.

Would President Obama win a second term, or would his endorsement of same-sex marriage sink him in the swing states, as some aides had feared? Would Tammy Baldwin, a congresswoman from Wisconsin, defeat the state’s former Republican governor to become the first openly gay candidate to be
elected to the U.S. Senate? What about the more than two hundred other candidates the organization had endorsed? Chad obsessively checked the exit poll data, hoping to get a read.

But the races he was following most closely were in Washington, Maine, Maryland, and Minnesota, where same-sex marriage was on the ballot. Gays and lesbians may have been on a winning streak in the courts and in state legislatures, but they had yet to win a popular vote at the ballot box. Tonight he would learn whether the 0-for-32 losing streak had come to an end.

It was Chad’s first big test as president, and it came as the old doubts about the Proposition 8 case had resurfaced, fanned by Judge Reinhardt’s opinion. If the “liberal lion” of the Ninth Circuit did not think the Supreme Court was ready, the thinking went, maybe the Olson-Boies legal team wasn’t smarter than everyone else after all. William Eskridge, a prominent gay Yale law professor, had filed a brief urging the Supreme Court to let the marriage debate percolate longer before taking action. When members of the legal team, at Olson’s request, had asked him to reconsider or tone it down, taking into account how much the climate had changed as a result of the Prop 8 litigation, resentment had bubbled over into outright anger. “
Ellen DeGeneres has done more for the movement than Ted Olson,” Eskridge had snapped.
At a recent meeting of some of the movement’s leading legal rights groups, to which Chad was not invited, the consensus was that the Proposition 8 case should go no further.

Shortly before 6
P.M.
Jerome popped into Chad’s office. Chad had a sore throat and a bad case of the sniffles. He was talking to a reporter. Jerome kissed him on the top of his head, put the jacket and red tie that he had brought for him from home on a chair, then headed back to their apartment to change out of his sweatshirt into something more suitable. “Back soon,” he whispered.

Several press releases, prepared by his staff for all possible outcomes, awaited Chad’s approval. One read, “2012: The Year LGBT People Won at the Polls.” After reading the other, which would be released in the event of one or more losses, he instructed his director of media relations, Michael Cole-Schwartz, to make a change.

“It’s the word ‘heartbreaking’ I didn’t like,” Chad said.

“I wanted to make sure it was emotive, that we feel people’s pain.”

“Yes, but what people are going to be looking for is hope. What’s next.”

Four years earlier, Chad and Kristina had sat in that suite in San Francisco and made their pact. Out of one of the worst days of Chad’s professional life had come something good. Proposition 8, like the police raids that sparked the Stonewall riots, had become a catalyst for change. The trial had forced opponents into open court, where they were required to defend their views, and the country was having a national conversation on the nature of equality.

Polling showed that support for same-sex marriage was growing across every demographic, albeit at different rates, a remarkable transformation in public attitudes that had accelerated since 2010 and the filing of the case.
The Pew Research Center would soon release data showing that 14 percent of Americans who supported same-sex marriage used to hold the opposite view, comprising more than a quarter of those who now believed that gays and lesbians should be able to wed. Republicans continued to oppose same-sex marriage, but by smaller margins. The nation had come to a clear consensus that sexual orientation was a trait, not a choice, and more and more Americans, regardless of age, race, political ideology or religion, were coming to embrace the idea that who you were, and who you loved, should not dictate who you could marry.

“
This is the most significant, fastest shift in public opinion that we’ve seen in modern American politics,” said Alex Lundry, a Republican political consultant who served as director of data science for Mitt Romney’s presidential campaign and was analyzing the same-sex marriage data for Mehlman’s Project Right Side. “And what is remarkable about it is that no demographic has been immune. You name it, and it has shifted in favor of gay marriage.”

In three of the four states where marriage was on the ballot, gays and lesbians were on the offensive. In Washington and Maryland, voters would decide whether to approve same-sex marriage laws already blessed by their state legislatures, and in Maine they would decide whether to reverse themselves and allow gay couples to wed. In Minnesota, where gays and lesbians were playing defense against a proposed constitutional ban, the National Organization for Marriage had been reduced to pleading with companies to stay on the sidelines, as major employers like Target and General Mills declared the ban bad for business.

The marriage debate, which once largely divided Americans along secular and religious lines, was increasingly dividing religious Americans. The Episcopal Church and the conservative branch of American Judaism had recently blessed gay wedding ceremonies, and faith leaders from the denominations that favored allowing their gay and lesbian congregants to wed had been providing testimony and political cover in the state-by-state political battles.

Institutions like the Catholic Church and the Conference of Southern Baptist Evangelists remained staunch opponents. But young evangelical voters were increasingly supportive of the right of gays and lesbians to marry,
causing some church leaders to rethink how best to talk about the issue, and it remained an open question as to how Catholics would divide on the question when it came time to vote. Quiet discussions with the Mormon Church, which had provided the bulk of the funding for Proposition 8, were beginning to bear fruit: It was not playing a funding role this cycle. And while the church’s position had not changed, it was moving toward what it called a more “Christ-like” approach, working to address high rates of gay Mormon youth homelessness and suicide, for instance, by calling on parents not to reject their gay children.

Back in California, the legislature had recently voted to outlaw conversion therapy as junk science. More prominent Republicans were stepping forward to endorse same-sex marriage, most recently former secretary of state Colin Powell. Straight allies from what had long been considered a bastion of homophobia—the professional sports locker room—were also joining the cause.

In Maryland, Baltimore Raven Brendon Ayanbadejo was so outspoken that Emmett C. Burns Jr., an African American state delegate opposed to same-sex marriage, pressured the football team’s owner to order his linebacker to cease and desist. That so angered Minnesota Vikings punter Chris Kluwe that he published a profanity-laced response, then jumped into the marriage campaign in his state.

“Your vitriolic hatred and bigotry make me ashamed and disgusted to think that you are in any way responsible for shaping policy at any level,” Kluwe wrote in an open letter to Burns that went viral. “I can assure you that gay people getting married will have zero effect on your life. They won’t come into
your house and steal your children. They won’t magically turn you into a lustful cockmonster. They won’t even overthrow the government in an orgy of hedonistic debauchery because all of a sudden they have the same legal rights as the other 90 percent of our population—rights like Social Security benefits, child care tax credits, Family and Medical Leave to take care of loved ones, and COBRA healthcare for spouses and children. You know what having these rights will make gays? Full-fledged American citizens just like everyone else, with the freedom to pursue happiness and all that entails. Do the civil-rights struggles of the past 200 years mean absolutely nothing to you?”

In one sign of just how much the times were changing, rising hip-hop artist Frank Ocean came out about falling in love with a guy on his blog, and rather than having it derail his career in an industry known for intolerant lyrics filled with references to “faggots,” he was met with an outpouring of support. “Thank you,” hip-hop megastar Jay-Z wrote on his Life+Times Web site. “We are all made better by your decision to share publicly.” The album Ocean released shortly afterward debuted at number two on the U.S.
Billboard
200 chart and earned six Grammy nominations.

Olson’s legal briefs would not take note of what happened that evening, win or lose, in part because it would be unseemly to suggest that the justices decide cases with a finger to the political wind, and also because the entire point of the case was that the rights of a minority should not be put up for a vote. The Constitution, with its guarantee of equal protection under the law and substantive due process embrace of fundamental rights that the Court sees as “implicit to the concept of ordered liberty,” trumps elections.

But earlier in the year, Justice Ginsburg had reiterated her concern that the Court had moved too fast in issuing its milestone
Roe v. Wade
decision. In what was reported as a possible window into her thinking on the Proposition 8 case, she told a symposium at Columbia Law School that it might have been better to decide the case more incrementally or delay hearing it altogether in order to allow the political debate over abortion that was under way more time to play out.

In Olson’s estimation, “atmospherically,” winning mattered, quite a bit.

Chad had invested $5.3 million into the four states where marriage was on the ballot, plus $145,000 to keep Iowa Supreme Court justice David Wiggins
from becoming the fourth justice to be ousted in a retention vote over that court’s unanimous 2009 decision, which made the Hawkeye State the third in the nation to allow gays and lesbians to marry.

Maine looked solid. Ken Mehlman had been working closely there with Marc Solomon, the national campaign director for Evan Wolfson’s group, Freedom to Marry. Solomon felt an affinity for Mehlman; he too had been a closeted gay Republican, as an undergraduate student at Yale working to elect Bob Dole president and later as a staffer on the Hill. They had met to talk about how they might advance the cause together, and Solomon had come away thinking that Mehlman was a huge asset. “He was like, ‘You’re the expert, I’m just a foot soldier,’” Solomon recalled. “I took that with a grain of salt, because he’s a mastermind.”

Mehlman, as he had in New York, called Republican state lawmakers in all four states. He helped raise money. He also drafted the Republican microtargeting firm, TargetPoint, the one he had used to help reelect President Bush, to identify and persuade likely same-sex marriage supporters. Consumer data, such as the kinds of books or music a person buys, and public records containing information such as whether a person owns a pickup truck or a Volvo, were used to slice and dice the electorate. In Maine, TargetPoint created thirty-three different groups and, using predictive modeling, ranked them according to their likely support for same-sex marriage. Voters who might lean their way but were judged to be susceptible to the message of opponents were visited by door knockers, who were armed with particularized, focus-group-tested talking points designed to assuage their concerns.
By election day, Solomon said they had knocked on the doors of “more than half of the movable middle.”

Maryland had started off looking unwinnable. It had the highest percentage of black voters of any state outside the South, and early polls showed a majority opposed to same-sex marriage. Freedom to Marry had urged donors to send their money elsewhere, where there was a bigger chance of success. But following President Obama’s endorsement, those numbers had flipped virtually overnight. There had been slippage since, as opponents worked the black churches. But prominent African American ministers like the Reverend Delman Coates of the Mt. Ennon Baptist Church in Prince George’s County were offering black voters a countervailing theological narrative, one that evoked
the spirit of Martin Luther King Jr. to argue that standing up for gays’ and lesbians’ right to marry was in keeping with the social justice traditions of evangelical black Christianity.