Forcing the Spring: Inside the Fight for Marriage Equality (7 page)

He would later tell friends that he had never even discussed marriage with his partner. And when the window briefly opened in California, he had not given the idea of marrying him any real consideration.
Given DOMA, it made no financial or estate planning sense, and he was quite happy with things as they were.

Besides, he figured, even if he did want to marry someday, the courts had held that a judge is not disqualified from hearing a case just because he or she
shares a fundamental characteristic with a litigant and stands to benefit from the outcome in the same way as general members of the public.
African American judges hear race discrimination cases all the time, while female judges hear cases charging gender bias, he thought. Why shouldn’t a gay man hear the challenge to Proposition 8?

Arriving back at his office in Washington from the press conference, Olson found his in-box flooded with accusatory and at times hateful e-mail: “A disgraceful betrayal of the legal principles you purported to stand for,” read one message. “Homo,” read another.

Colleagues were kinder, but many remained bewildered. Up until this point, the highest-profile supporter of gay marriage was former vice president Dick Cheney, whose daughter was a lesbian, and even he said it should be left up to the states. Was someone in Olson’s family gay? The answer to that question—no—led some to whisper disparagingly that it must be the influence of Olson’s new wife, Lady, a beautiful blond Kentucky-born tax lawyer and self-confessed liberal whom he had married in 2006.

Longtime law firm partner Doug Cox, a fellow conservative, was dismayed that he had been kept in the dark about the plans to place the firm in the middle of a battle he did not support. Former judge Robert Bork, a dear friend of Olson’s who had written that “radical” court-ordered gay marriages constitute a “judicial sin,” couldn’t bear to talk to him about the case.

“
I don’t want to get into an argument,” he said. “But I’d like to know why.”

At the annual Federalist Society lunch, Olson kept his tradition of delivering a conservative red-meat roundup of the just-concluded Supreme Court term. But there was a palpable sense of discomfort in the room about the just-filed Proposition 8 case. Olson may have wanted to keep one foot planted in the conservative circles that had long been his ideological home, but it was clear as he made his rounds that his decision to step so far outside its doctrinal orthodoxy was going to come at some personal and professional cost.

When it comes to interpreting the Constitution, there are two distinct schools of thought. One school sees it as a living, breathing document, in which rights that are not explicitly enumerated may be found. The Federalist Society
is an incubator for the other school. The substantive due process right to privacy that led the Court to strike down first laws prohibiting contraception and abortion and later the antisodomy law at issue in the
Lawrence
case that Olson was relying upon? Made up out of whole cloth. Judges should stick to the Constitution’s actual text, and to what the framers intended.

To many adherents of this school, it bordered on the absurd to believe that the authors of the Fourteenth Amendment to the Constitution, which added the equal protection clause and was passed in the wake of the Civil War in order to confer citizenship on freed slaves, would someday intend for it to be used to force states to marry same-sex couples. Justices had a hard enough time using it to invalidate race-based school segregation in the
Brown v. Board of Education
decision, given that it was ratified by the same Congress that had segregated schools in the District of Columbia; Justice Robert H. Jackson, in a draft opinion, summed up that Court’s struggle when he wrote that however abhorrent he found segregation, “layman as well as lawyer must query how it is that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved.”

What was so perplexing and, for many conservative lawyers at the Federalist Society luncheon, controversial about Olson’s involvement in the same-sex marriage fight was that, as conservative law professor Orin Kerr charged on his blog, Olson was now making the “same kinds of constitutional arguments that he has specialized in ridiculing for so long,” relying on case law and legal theories he had critiqued in that very forum.

“Those who have watched Olson’s annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites,” Kerr wrote. “Olson hasn’t just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal.”

But not a single person at the lunch even mentioned the Proposition 8 case to him, save for an oblique ribbing by David Bossie. In the bifurcated world he now inhabited, Olson was representing Bossie, the president of a conservative advocacy group called Citizens United, in a case involving a scathing documentary about Hillary Rodham Clinton that challenged campaign finance limits put in place by Congress. After pecking Lady on the cheek, Bossie looked
over at her husband and drily said, “I’m not going to kiss you, even though apparently you wouldn’t mind.”

Seated at Olson’s table to his right was Robert McConnell, one of his oldest friends. The two men had worked together in the Reagan Justice Department, and shortly before filing the lawsuit Olson had taken McConnell aside at a dinner party to give him a heads-up and solicit his views. McConnell, a practicing Catholic, told Olson that as a religious matter he believed marriage ought to be reserved for two people who can procreate.

Olson, who was not a regular churchgoer, replied that while he respected McConnell’s conviction, he saw it as a civil rights issue. He then began to elaborate on his view that religious beliefs were insufficient legal justification for the government to refuse to recognize same-sex marriage, but soon paused. “You don’t agree with me, do you?” Olson asked. The conversation was never resumed.

The lawsuit was not going over any better in the gay rights community. All the leading groups issued a joint press release calling the lawsuit ill timed and ill advised. Conspiracy theories abounded that Olson had taken the case to sabotage it. Nan Hunter, founder of the ACLU’s LGBT Project, told reporters that a very careful, collaborative strategy had been tossed out the window by “a small number of people who are wealthy enough to pay for a major litigation effort.”

Chad and Bruce Cohen redoubled their efforts to bring the groups around. Olson did his part too, with limited success. He phoned in from a bicycling trip in Provence to listen to the concerns of leaders like Kate Kendall, the executive director of the National Center for Lesbian Rights. Olson told her that he hadn’t gotten as far as he had by taking on losing causes, and he added an emotional personal note: “This may well be the most important fight I have ever been a part of in my life.”

Kendall was convinced of his commitment, even though she remained concerned about the timing. “By the power vested in me, I am anointing you an honorary lesbian,” she joked at the end of the conversation.

“
It is a badge I will wear with pride and honor,” he replied.

D
avid Boies was sitting at the bar of the Millennium Hilton hotel in New York City, having just finished preparing for the next day’s testimony in a complicated trial involving the insurance giant AIG, when an aide handed him Judge Walker’s first order in the case. It was June 30, 2009, a little over a month after the lawsuit had been filed.

Olson and Boies had asked the court to issue a preliminary injunction prohibiting the state from enforcing Proposition 8, which would have the effect of allowing same-sex couples to begin marrying again while the court considered the legal issues at hand.

Injunctive relief of the type the plaintiffs were requesting is given in cases where it can be established that their constitutional claim has merit and that continued enforcement of the law under challenge would cause real harm. Judge Walker tabled the request, on the grounds that he did not want to inject more confusion into California’s already confusing marital landscape by allowing weddings to resume before the legal questions were definitively resolved.

Whichever way he ruled, his word would likely not be the final one. The losing party would appeal his decision to the Ninth Circuit Court of Appeals, charged with reviewing the judgments of federal district and bankruptcy courts in nine states and two U.S. territories. Depending on that outcome, it seemed likely that the Supreme Court would be the ultimate arbiter, assuming
it decided to hear the case. If Walker or some subsequent court were to rule against the plaintiffs and uphold Proposition 8, marriages performed while the case made its way through the federal court system could be rendered invalid. California had already been down that road before, when San Francisco mayor Gavin Newsom had unilaterally decided to hand out licenses to same-sex couples, and the state did not need a repeat.

But in a passage Boies found quite heartening, Judge Walker said that the legal filings in the case so far “may well suffice to establish a serious question” as to the constitutionality of Proposition 8. The judge particularly singled out the fact that the state had refused to defend the initiative. It was not an outcome that the team had left entirely to chance. The two named defendants in the lawsuit were Republican governor Schwarzenegger and Democratic attorney general Jerry Brown, the state officials charged with enforcing Prop 8.

Kristina had back-channeled a request to the governor using connections she had made through her client, California’s first lady, Maria Shriver. If he couldn’t support the lawsuit, would he at least say nothing? “Just play dead,” she had begged. But the governor did her one better, suggesting in a court filing declining to defend it that Proposition 8 raised serious constitutional questions. Brown for his part unambiguously declared that it was unconstitutional.

Over his years in office, Schwarzenegger’s position on same-sex marriage had evolved. Following his veto of a bill that would have legislatively legalized the practice, he had begun talking to gay staff members, friends, and, most important, his wife.
Unbeknownst to the public, he had presided over the marriage of two of his closest gay staffers, and had offered to marry a third, Daniel Zingale, a senior adviser to the governor and chief of staff to the first lady, during the window in which it was legal. Zingale had kept the marriages confidential, but confided to Chad and Kristina that the governor was better on the issue than they knew.

Paging through the judge’s order over a tall screwdriver—during trials he limited himself to
a maximum
three and kept track by placing the straws in his shirt pocket—Boies picked up his cell and called Olson, who was in California for a July 2 hearing in the case.

In advance of that hearing, supporters of Proposition 8 had filed briefs arguing that allowing gays and lesbians to marry could destabilize the institution
of marriage, and that a married mother and father provided the optimal child-rearing environment. Olson, for his part, had asserted that there was no reason to believe that allowing gays and lesbians to marry would harm traditional marriage. Prop 8, he argued, had been motivated by nothing more than animus—unconstitutional prejudice—toward gay people.

But Walker decided that neither side had provided sufficient evidence for their claims. “
Prove it,” he would later recall thinking. In his order, the judge signaled his intention to hold a full-blown trial, and he listed questions that the parties should be prepared to answer.

The team had always known that this was a possibility, and Walker’s order was not unprecedented.
The landmark
Romer
case had begun with a trial. Citing the evidence that had been presented, the district court rejected arguments that the Colorado initiative was justified because including gays and lesbians in antidiscrimination laws could lead married individuals to “choose” to become homosexual.

But up to now, the state courts that had considered same-sex marriage had come to their conclusions based largely on legal arguments alone, so the order came as something of a surprise. If Walker held to his plan, the public would hear evidence and actual testimony on issues such as the intent and effect of Proposition 8, the history of discrimination against gays and lesbians, the history and purpose of marriage, the science of sexuality, and whether excluding gays and lesbians from marriage promotes the well-being of children.

“I don’t know what your view is,” Boies told Olson as he signaled a hotel waiter for another round, “but I rather like this opinion.”

Terry Stewart was worried. As San Francisco’s chief deputy city attorney, she had been one of the lead lawyers in the California Supreme Court case that briefly legalized same-sex marriage.

She would have killed for the type of trial that Walker was proposing. The judge was offering Olson a golden opportunity to put prejudice on trial, by calling expert witnesses and cross-examining opponents of same-sex marriage. Even more important, he was giving Olson a chance to bulletproof his
case before it got to the Supreme Court. Appeals courts, which review the decisions of lower courts, do not hear from witnesses or relitigate evidence. They are supposed to defer to a trial judge’s factual findings and limit their review to whether the law was correctly applied, meaning that later courts would be forced to contend with whatever Judge Walker decided the evidence showed when it came to issues like whether sexuality is changeable or what motivated Proposition 8.

But Olson, unlike Boies, was not initially keen on the idea of a trial. Olson wanted to reach the nation’s high court as quickly as possible, and a trial would slow them down. “Every day that Proposition 8 is enforced perpetuates a tragic injustice on tens of thousands of Californians, including, specifically, the plaintiffs who are here, today, before you,” he protested at the July 2 hearing.

In Olson’s view, the case could be decided on an expedited basis simply by looking to the Constitution and applying Supreme Court precedent. Walker, however, had other ideas.

There were questions not just of law, but of fact that needed to be resolved, the judge said.

“This is a trial court, this is not the Supreme Court of the United States where we deal with these boxcar philosophical issues,” the judge said. “We deal with facts; we deal with evidence; we deal with the testimony of witnesses.”

“I’m reasonably sure, given the issues involved and given the personnel that are in the courtroom, that this case is only touching down in this court, that it will have a life after this court, and what happens here, in many ways, is only a prelude to what is going to happen later,” Walker continued. “Our job, in this case, at this point, is to make a record.”

Olson then made a suggestion for streamlining the trial proceedings, one that made Stewart particularly uneasy.

When the governor and the state had refused to defend Proposition 8, Judge Walker had allowed the proponents of Proposition 8, who had gathered the signatures to put the initiative on the ballot on behalf of a campaign called “ProtectMarriage.com,” to do so as intervenors in the case. Their lawyer was Chuck Cooper. He was an old friend of Olson’s from back in their days in the Reagan Justice Department and had succeeded him as head of the Office of Legal Counsel.

Olson had pulled Cooper aside just before the start of the hearing to privately suggest that they jointly oppose Walker’s trial plan. “We don’t want to have some Scopes monkey trial here, do we?” Cooper recalled Olson saying, a reference to the famous 1925 case in which the then controversial theory of evolution was debated by two famed lawyers of the day. When it became clear the judge would not be deterred, Olson had suggested in more diplomatic language that perhaps he and Cooper could stipulate to some of the facts at issue in order to move things along. “That might help to narrow the issues upon which there then might have to be expert testimony,” Olson told the judge.

Stewart was appalled by Olson’s suggestion. Cooper had defended Hawaii’s right to ban same-sex marriage in state courts there. And he had written a brief in the
Romer
case defending the constitutionality of the Colorado initiative that prohibited municipalities from including gays and lesbians in their antidiscrimination laws. Any offer of cooperation by Cooper, Stewart thought, could not possibly be good for the case.

Gibson Dunn, Olson’s firm, had already asked the city of San Francisco to file an amicus brief, a legal argument filed by a party not directly involved but with an interest in a case. Stewart had readily agreed. Whatever the establishment gay rights groups thought about Olson’s lawsuit, what was done was done. It was imperative that he succeeded.

Now, worried about the direction the case was taking, she wanted to advocate for a larger role. Following the hearing where Olson and Cooper had suggested limiting the facts in dispute, she went to see her boss, City Attorney Dennis Herrera. He looked up as she came in, a five-foot-three whirlwind in a dark pantsuit, with short white-blond hair and preppy glasses. Stewart tended to convey urgency in breathlessly fast sentences, one tumbling over the next. Forget the amicus brief, she said. We need to file a motion now, asking that the city of San Francisco be made a party to the case. That would give her and Herrera a far greater say in charting the course of the trial.

“
They need our help,” she said, “even if they don’t know it.”

Herrera, a jovial politician well liked by both the city’s gay community and its more conservative Catholic population, agreed to reach out to Chad, whom he knew well. He had been the one who hired Chad and Kristina to help fight Proposition 8 in the waning days of the campaign, paying them out of his own political coffers because he felt that the people in charge of the official “No
on 8” campaign were running it into the ground. The city, he told Chad when he reached him, wanted to intervene in the case, and allowing that to happen could help Chad with a problem of his own.

After publicly questioning the wisdom of AFER’s legal strategy, the American Civil Liberties Union, Lambda Legal, and the National Center for Lesbian Rights now wanted to be made parties to the case as well. “
We think it will be very helpful to Judge Walker and the ultimate resolution of the questions in the case for the litigation to have the benefit of the community in all of its diversity,” Lambda’s Jenny Pizer, explaining the motion they had filed with the court, told reporters.

Kristina had never seen Chad so furious. After everything that Lambda Legal and the other groups had done to trash their case, now they wanted in? When Chad got angry, his southern accent became more pronounced, and he was in a full-on drawl as he shouted from his office, “We’re screwed.”

It was also the last thing Olson wanted. The team was going to have a hard enough time winning. A united front was needed, not infighting and second guessing. But what could they do? Chad had already shifted gears to try to deal with this unpleasant new reality when Kristina slowed him down. These groups already hate us, she reminded him. What do we have to lose by going to war to try to shut their motion down?

She was right, Chad thought. Together, they crafted a tough response.

“You have unrelentingly and unequivocally acted to undermine this case, even before it was filed,” Chad charged in a letter to the three groups he released to the press. “In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening.”

But it was anyone’s guess what Walker might do. Judges often like to hear from a number of parties. Why not back San Francisco’s bid, Herrera asked Chad, as a way to look reasonable? Stewart, his deputy, had the expertise. She already had a list of experts in the fields of sociology, sexuality, and history whose testimony could help convince the court that gays and lesbians suffered real harm from being deprived of the ability to marry. Plus, she was a lesbian who enjoyed a good working relationship with the established gay rights legal community; having her join a team that at the moment consisted of two straight men might ease the groups’ concerns.