Forcing the Spring: Inside the Fight for Marriage Equality (9 page)

But as soon as the words “I don’t know” left his mouth, the damage was done. The Associated Press reporter jumped out of his seat and ran out of the room to update his story.

Sitting in the first row, Chad couldn’t believe his luck. If he had anything to do with it—and he did—Cooper was going to relive this moment repeatedly in the coming months as the case headed to trial and beyond.

“
I’m going to hang him,” he vowed to himself, “with those words.”

T
he team began to assemble for the trial two and a half months later in San Francisco, in the gleaming modern office tower overlooking the Bay Bridge that housed Gibson Dunn’s San Francisco office. More than forty people, many of whom had never met one another, were now working furiously on the case, prepping witnesses, reading and rereading relevant Supreme Court cases, rushing back and forth to court on last-minute pretrial motions, and preparing for a media onslaught.

In a makeshift war room on the thirtieth floor on January 8, 2010, Chad and Kristina briefed the political operatives they had hired to staff the public education end of the operation. The omens in recent weeks had not been heartening. Voters in Maine had overruled their legislature, repealing the law legalizing same-sex marriage in that state before it had even had a chance to go into effect, while New York and New Jersey state lawmakers had rejected legislation to allow gays and lesbians to marry in those states.
Nationally, polls put public support for same-sex marriage at only between 37 to 40 percent.

Which made their goal all the more audacious: to flip public opinion on same-sex marriage from majority opposed to majority support by the time the case reached the U.S. Supreme Court, in the hope that a more hospitable political climate would make the justices feel more comfortable ruling their way. Everything they did, Kristina instructed, needed to be coordinated with the lawyers, with that single guiding principle in mind.

“Ultimately, we know that we have an audience of nine,” she explained. “Ted told us from the beginning that as much as people think that Supreme Court justices live in this rarefied world, they read the papers and they have conversations about the news with their friends, and all of that affects their thinking.”

Television images from the trial would shape the way both the court and the public viewed their cause, and to that end boxes filled with two thousand American flags were stacked around the perimeter of the conference room, to be handed out at a vigil gay rights groups had planned for opening day. The colors of the rainbow may have been embraced as a symbol by the movement, but Chad wanted something that evoked more traditional values.

On the long rectangular table around which they had all gathered, empty soda cans, stale coffee, junk food, and laptops fought for space, giving the room the disheveled air of a campaign headquarters on election eve. On a whiteboard, Kristina had outlined everyone’s duties.

Adam Umhoefer, as senior project director, was charged with overseeing the nuts and bolts of the operation, responsible for everything from donor outreach to the plaintiffs’ security and the ambitious social media effort planned for Twitter and Facebook. With pale blue eyes, windswept brown hair, and the barest hint of scruff on a face Botticelli might have painted, he was often mistaken for a model. But at twenty-eight, he had built an impressive political résumé, coordinating political and philanthropic giving for movie moguls Steven Spielberg and Jeffrey Katzenberg, and joining AFER as a senior project director fresh off a stint as an Obama campaign organizer in Montana.

Amanda Crumley, a blond thirty-year-old national Democratic consultant from Arkansas who had worked with Chad in the Clinton White House, and Yusef Robb, a California campaign veteran who worked for him now as communications director for Griffin Schake, rounded out the core group.

Crumley would focus on building a national progressive mailing list for the group—the one Hillary Clinton used in her 2008 presidential campaign “is going to fall off the truck and into my e-mail box any minute,” she reported.Her other task was to cultivate national editorial boards and columnists, with the goal of moving the nation’s elite opinion makers firmly into their camp.

Robb, who reveled in his reputation as an operative willing to go for the jugular in political bouts, would serve as the team’s rapid response man, the
perfect role for someone whose first response to an opponent’s spin was often to say something like, “We need to shoot that shit down!”

So far the coverage had been overwhelmingly positive. An essay written by Olson, “The Conservative Case for Gay Marriage,” had made the cover of
Newsweek
. “Prepare the tweet,” Adam joked as it went live. The team was also about to announce additions to the AFER board that would bolster its bipartisan civil rights credentials: The chairman of the conservative Cato Institute, the chairman of the liberal Center for American Progress, and the immediate past chairman of the National Association for the Advancement of Colored People (NAACP) had all agreed to serve as advisory members and would soon be deployed to write op-eds and act as surrogates on television.

But working in the besieged Clinton White House had taught Chad several political maxims: Never let a challenge go unanswered, and if you want to fight for something and win, you need to go on the offensive.

“Two things should be given to every reporter,” he instructed the group. The first: “Cooper’s foolish statement that he doesn’t know the harm,” or as Chad had taken to calling it, “the Cooper Blooper.” The second: a press release issued that very morning by the National Organization for Marriage, the driving force behind Proposition 8, that “we do not expect to win at trial level.”

“Cooper should have to answer those two questions every time they are in an interview.”

“That goes to another thing,” Crumley said. When it came to hitting the other side, how negative did Chad want to go? “Do we want to be up here?” She raised her hand above her head.

“Yes,” Chad replied.

“So leave others to do the punch back?”

“Yes.”

Shortly before noon, Ted Boutrous burst into the war room with news from the courthouse: Dr. Hak-Shing William Tam, one of the five official Proposition 8 proponents who had been granted status to defend the initiative in lieu of the state, had just filed an emergency motion asking to withdraw from the case.

By now, the Gibson Dunn offices were a frenzy of activity. Stories previewing the trial were beginning to post online, lawyers were frenetically scurrying about, and the whole place hummed with anticipation as the hours ticked down to trial.

“Breaking news!” Boutrous exclaimed. “Tam is on the lam!”

Tam was claiming that he feared for his safety if he remained a party to the lawsuit, a position Boutrous said he found ironic, given that Tam and other Prop 8 proponents “were trying to strip the rights away from people who have been subject to years of being discriminated against and harassed.”

Matt McGill joined the discussion. The thirty-five-year-old Gibson Dunn lawyer had shaggy blond hair and dressed, Chad joked, like the “Young Republican he was.” He had clerked for Justice John Roberts when Roberts served on the D.C. Circuit Court of Appeals. Prior to that he had worked for Cooper’s firm, and he knew the way their opponents thought.

“My strong suspicion is that this has all been orchestrated by Cooper’s team,” he said.

Tam’s vitriolic writings about gays and lesbians had already played a key role in an ongoing dispute over what documents the proponents had to turn over to the plaintiffs. If Tam was allowed to withdraw, the only way to force him to testify would be to serve him with a subpoena—but first they would have to find him.
There was also some concern that Cooper might take the position that if Tam was no longer a party to the case, his writings—which the plaintiffs planned to offer as evidence of animus—weren’t admissible.

In civil lawsuits, either party can seek to compel the other to turn over material likely to “lead to admissible evidence,” through a process known as discovery.
Stewart, of the San Francisco Attorney’s Office, had pressed the team from the outset to go after the internal campaign documents of ProtectMarriage.com as a way to prove that Proposition 8, just like the Colorado voter initiative that Justice Kennedy had found unconstitutional in
Romer,
was motivated by animus toward gays and lesbians.

The question of motivation was an important one, because it had the potential to make their path to victory easier; the Supreme Court had ruled in a number of cases that laws motivated solely by animus cannot survive even the rational basis test, regardless of whether or not they targeted a suspect class.
When citizens, such as Tam, undertake to pass an initiative, they are acting
as legislators, Stewart argued, meaning that their communications no longer fall within the sphere of protected private political speech.

Olson, however, was initially reluctant.
Portraying the proponents of Proposition 8 as bigots might backfire, he felt, given that more than half the country opposed same-sex marriage. Besides, even if they could prove animus on the part of campaign leaders, who knew what was in the minds of the 7,001,084 Californians who had voted yes on Prop 8? And making an argument that was fact-specific as to what motivated the California initiative could result in a California-only decision; he believed that gays and lesbians had a fundamental right to marry regardless of the tone of any given campaign.

It might not even be necessary. Justice Kennedy had made clear that a finding of animus does not require proof of outright hostility.

“Prejudice, we are beginning to understand, rises not from malice or hostile animus alone,” he had written in a 2001 case involving the Americans with Disabilities Act. “It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”

But Olson had come around after McGill, who worked closely with him on some of his most important Supreme Court cases, sided with Stewart. It was true that in and of itself, evidence of animus on the part of campaign operatives was not dispositive. But Cooper was arguing the Prop 8 campaign was all about encouraging responsible procreation, McGill argued, so if they could show that the arguments made to voters had nothing to do with that, it could seriously undermine his contention that the ban on same-sex marriage had been passed with a rational purpose in mind. Let’s get everything we can get our hands on, he pressed, and sort out what we want to use later.

The discovery fight had bounced back and forth for the better part of a month between Judge Walker and the Ninth Circuit Court of Appeals. Judge Walker had sided with the plaintiffs, ordering that internal campaign communications relating to advertising and strategy be turned over. A three-judge panel of the Ninth Circuit had reversed, agreeing with Cooper that such internal political communications were privileged and that their release would set a precedent that could have a chilling effect on political association. “The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment,” the panel wrote.

That was when the Olson team went back to the Ninth Circuit for a second time with campaign material they had found buried online written by Tam, a Chinese American evangelical Christian minister and a leader in the campaign to pass Prop 8. Entitled “What If We Lose,” it had been sent out to church members and promised that if same-sex marriage became the law of the land in California, “one by one, other states would fall into Satan’s hand. What will be next?” Tam wrote. “On their agenda list is: legalize having sex with children.”

Surely, the Olson team argued, communications like these weren’t covered by privilege. On January 4, the Ninth Circuit panel amended its opinion, stating in a footnote that communications like Tam’s, circulated outside the core group of Prop 8 campaign proponents and operatives, were “plainly not a private, internal formulation of strategy” and were indeed fair game.

Cooper would now have to sort through tens of thousands of pages of documents and turn over whatever fell under the newly amended order. When a lawyer from his firm complained that they simply did not have the resources to do that at this late date, he was tartly told that by attempting to shield the documents for as long as they had, the proponents of Prop 8 had created a “problem of their own making.” (Olson would later scoff, “This is like a child killing his parents, and then claiming, poor me, I’m an orphan.”)

The court had ordered Cooper to deliver the documents in batches, beginning on Sunday, January 10—the eve of the trial—and finishing the following Sunday. It would be a huge undertaking to sort through it all while the trial was ongoing, but McGill was hopeful it would yield evidentiary gold. “I think there’s bad, radioactive stuff,” he told Chad.

“What these people are afraid of is being shown as the hateful bigots that they are under cross-examination,” Chad replied. “There’s a good story line developing here. Transparency is their enemy.”