Forcing the Spring: Inside the Fight for Marriage Equality (10 page)

Melding what amounted to three different law firms, each with distinct cultures, into a smoothly running machine was no easy task, as Olson was finding out. For the most part, the Gibson Dunn lawyers, who now numbered twenty, the ten lawyers that Boies had assigned from his firm, and a team of ten from the San Francisco Attorney’s Office were working well together.

But there was a key component missing: Boies himself. By midday Friday, with just three days to go until trial, he had yet to make an appearance at the office. “Where’s David?” had become a constant refrain.

“I did see him last night, sipping screwdrivers while reviewing documents,” McGill told Chad.

Chad rolled his eyes. “So we know he’s in town.”

The clerk of the Supreme Court once quipped that there were three secrets to Olson’s success: “Prepare, prepare, prepare.” For the better part of a week, he had been in San Francisco, writing and rewriting his opening statement, whittling the team’s witness list, and overseeing a massive organizational effort that so far had produced some forty three-inch-thick binders filled with two thousand exhibits that would need to be introduced at trial.

Olson knew that Boies had to take a deposition in a complex bankruptcy case that week, while at the same time preparing for a number of other upcoming trials. He knew too that Boies’s style was far more seat-of-the-pants than his own. If Olson approached his cases the way a classical pianist tackles a particularly difficult concerto, playing it over and over in his head with metronomic precision, Boies was more of a jazz player, always in search of the unexpected riff and best when improvising on the fly. The day before he took Bill Gates’s deposition in the Microsoft trial, he had watched the movie
Tombstone
on television to clear his mind.

“
Not everyone is a genius like David is,” Olson said. “Seriously. His wife told me that he’d drive me crazy but that he always comes through.” Still, at a case management meeting, Olson decided to reassign a number of potential witnesses to other lawyers.

During the disputed 2000 election, the Bush legal team had run a highly compartmentalized operation. One team specialized in hanging chads and oversaw the counting of ballots in South Florida, another monitored overseas military ballots, and still another handled the Florida Supreme Court arguments. Olson focused solely on the U.S. Supreme Court. Boies, meanwhile, raced from one end of the state to the other, before going head-to-head with Olson in the nation’s highest court. He was brilliant, but he was just one man playing far too many roles to effectively counterbalance the Republican legal Leviathan.

Olson didn’t want anyone spread too thin in this case. As it was, Boies was
going to have his hands full. He was responsible for taking two of the plaintiffs, Paul and Jeff, and at least one expert witness through their direct testimony. He would be responsible for questioning the Prop 8 proponents, if the team decided to call them, and for the cross-examination of all the witnesses that Cooper planned to call. Olson had assigned himself only two witnesses, Kris and Sandy, planning to spend the rest of the trial listening for nuggets he could use or that would need to be addressed during closing arguments and beyond.

“He’s great on cross when he’s had a chance to listen to the direct examination,” Olson told Chris Dusseault, who was acting as a liaison between the Gibson Dunn team and the other lawyers. “That’s different from doing the direct examination, where you need to know what we need to elicit, which David may or may not have time to do.”

“The sensitivity was, what if Cooper doesn’t put on much of a case, and then David wouldn’t have much of a role,” Dusseault said.

Olson understood, but ensuring that Boies had a prominent enough role in the trial was not as important as ensuring that they deployed everyone in a manner that gave them the best shot at winning. “So we’ll say, ‘This is not about that. This is about the case,’” he replied.

T
rials, by their nature, can be unpredictable, but even by that standard the news the team awoke to on Saturday, January 9, was surprising:
Perry v. Schwarzenegger
was headed to the Supreme Court, before a single witness had even testified, on a sideshow issue that had nothing to do with the constitutionality of California’s same-sex marriage ban.

At a hearing three days earlier, Judge Walker had announced his intention to broadcast the trial on a delayed basis via YouTube, as part of an experimental program in the Ninth Circuit to bring cameras into the courtroom. A lawyer for Cooper’s firm had objected, arguing that it would subject his witnesses to intimidation. Walker wasn’t buying that, noting that Cooper’s clients had assumed a public face when they “put together a political campaign to change the constitution of California.” As for the rest of the witnesses Cooper planned to call, they were academics, Walker said, “people who stand up before classrooms all the time and express their views and opinions and so forth.”

Much of the rest of the hearing had been taken up on a technical issue: whether allowing cameras in the court required public comment because it constituted a change in the court’s rules. Walker did not think so, but he said he was willing to seek public input as though it did.

The legal team had relayed that news to Chad, who swung into action. People who know gay couples are far more likely to support same-sex marriage than those who don’t. Envisioning saturation cable and nightly network news
coverage of the trial that would introduce their plaintiffs to viewers across America, he called Rick Jacobs, the head of a grassroots gay rights organization called the Courage Campaign, asking him to activate his members. “
You need to move fast,” Chad said.

Within forty-eight hours, Jacobs had delivered nearly forty thousand neatly boxed letters to Walker’s chambers. Cooper couldn’t begin to match the effort; there were only thirty-eight comments opposing the move.

Cooper had appealed first to the Ninth Circuit, which backed Walker’s broadcast plan, and then, that morning, to the Supreme Court. Now the matter rested with Justice Kennedy, who as the justice overseeing the Ninth Circuit would decide whether to grant the emergency stay Cooper was requesting, so that the Supreme Court could decide whether to consider the underlying legal issues Cooper had raised.

“Same message,” McGill told Chad after briefing him: The other side is afraid of transparency.

Kennedy had given the team until 9
A.M.
the following morning to respond.

Supreme Court briefs typically take weeks to write; this was lawyering on steroids. McGill, along with two of Gibson Dunn’s brightest young appellate associates, would be up all night. Still, Olson liked the idea that Kennedy, likely to be the swing vote in the event of a 5–4 decision, was, as he put it, “going to get an advance peek at this case.”

“We should drop a note to Justice Kennedy,” joked Dusseault, who had dropped by the war room to talk to Chad. “‘By the way, how do you feel about our case?’ Like a P.S.”

Chad laughed. “Yeah—‘Are you down with being one of the five? Much love, Ted.’”

“What do you think of the Supreme Court?” Jeff asked.

He and Paul were sitting in a conference room with Boies, who had finally shown up the previous afternoon. With opening arguments less than forty-eight hours away, both sets of plaintiffs were already nervous, and this latest videotaping development was not helping matters.

Dressed casually in a dark blue V-neck sweater and sneakers, Boies smiled
reassuringly. Just because Cooper had appealed the decision to broadcast the trial did not mean the justices would hear it; four of the nine must first decide that the issue was worthy of their attention, and thousands of petitions are turned away each year. “I don’t think the Supreme Court is going to touch it, myself,” he said.

At their best, trials are like morality plays, transcending the awkward question-and-answer format to tell a coherent, compelling story. Each of the seventeen witnesses the team planned to call were there to illustrate one of three main points: that Proposition 8 was but the latest chapter in a long and odious history of discrimination against gays and lesbians; that denying gays and lesbians the right to marry caused them and the children they were raising great harm; and that permitting them to marry would not harm heterosexual marriages whatsoever.

For all the concern about ensuring Boies a prominent enough role, he was fine with the way the witnesses had been divvied up. As he put it, “Both Ted and I recognize that if we win this case, it’s not going to matter who did what, and if we lose this case, it’s not going to matter who did what.” The trial worried him a lot less than a factor over which he had no control: the average age of the judges and justices who would ultimately decide the case as it made its way up on appeal.

“They, like myself, grew up at a time when homosexuals were considered criminals, despised sexual deviants,” he said, out of earshot of the plaintiffs. “If anything kills us, that is going to be what kills us.”

But in the meantime there was a case to put on, and there was no question that much would rest on the testimony of Jeff, Paul, Kris, and Sandy. They were the leadoff witnesses, and a big part of the weekend was devoted to ensuring that they knew what to expect.

A cadre of lawyers from Boies’s firm had been working with Paul and Jeff in his absence, eliciting details about their lives together and the discrimination they had faced. The couple had talked of the humiliation of having hotel desk clerks, upon seeing that they had booked a king-sized bed, say there must be some sort of mistake. Whatever answer they gave—yes, we do want to sleep together—inevitably and uncomfortably made an exchange with a perfect stranger about sex. They were shut out from using vocabulary that would at
least make people understand, if not agree with, the true nature of their relationship.

“Calling him my husband makes everything easier,” Jeff said. “Meeting people, greeting people—there’s a certain reverence that comes with the word ‘marriage.’”

The couple had been studying a long outline of points the lawyers wanted them to make. Still, over several more sessions on Saturday and Sunday, Boies walked them through it again. During the direct examination, the idea was to relax and have a conversation with the judge, he counseled. When Cooper cross-examined them, however, he would try to trick them into giving answers that would hurt the case. Then, it was important to be on guard and answer in a way that could not be taken out of context.

“Be careful with the concessions,” Boies advised. “If they say, ‘Isn’t domestic partnership the same thing?’ you say, ‘No, it is not. It’s not to me and it’s not to you.’”

He asked Jeff, “Is it possible that you would marry a woman if you couldn’t marry Paul?”

“No.”

“Why not?”

“Because I have no attraction to women.”

Given the discrimination gays and lesbians face, Jeff added, who would voluntarily choose such a lifestyle?

After about ten more minutes, Boies cut the session short. He did not want them sounding overrehearsed. “Excellent. It’s natural. It all flowed very smoothly except that one question. I would not use the word ‘lifestyle.’”

In a conference room just down the hall, Olson and lawyers in his firm were similarly trying to steel Kris and Sandy for what lay ahead.

Chad had insisted that the team include a number of gay lawyers, both because they would bring a sensitivity born of personal experience to the legal argument and because he felt it would be a comfort to the plaintiffs.

Sarah Piepmeier, a thirty-five-year-old Gibson Dunn associate and the only
lesbian besides Terry Stewart on the team, had conducted the mock cross-examination. She had thrown herself into the role, peppering them with the sorts of questions that the other side might be expected to ask. How many men had Sandy slept with? How many women for Kris? After each one she had apologized. “I just hope it was easier that it came from me,” she said afterward.

Now, Enrique Monagas, the young gay lawyer who had filed the original complaint in the case, tried to keep the two women upbeat during a lunch break on Sunday. But they were clearly unsettled by the prospect of having to take the stand, given that they had been assured at the outset that a trial of the sort that was now about to take place was unlikely.

“I think cross will be an interesting experience for you,” Monagas said.

“Yeah, in a bad way,” Kris said with a laugh. She made quote marks with her fingers. “Interesting.”

Earlier, Olson had listened as the couple fielded questions from a partner in his firm. Even on the defensive, Kris was powerful and emotive. “You don’t come out because it’s a choice, you know,” she said. “You will be ostracized, you will be mistreated. That’s how powerful it is. You can’t not do it. You can’t not feel it. You
have
to tolerate all this negativity in the world about who you are.”

But Sandy had been more hesitant, particularly when asked about her ex-husband, Matt. It was something Olson knew he had to address, no matter how uncomfortable.

“Let me interrupt,” Olson said. “To what degree have you gone over the overlapping of your relationship and your marriage?”

The best answer, and the truth, was simple: Sandy’s marriage was all but over when she and Kris fell in love in January 1999. But it was complicated by Walker’s decision to broadcast the trial, and her own desire to protect her two boys, now aged nineteen and twenty-one. Sandy did not want to testify to the real reason that her marriage had fallen apart: Her husband was an alcoholic.

Before she and Kris had agreed to become plaintiffs in the case, they had talked it over with their kids. Kris’s twin boys, Spencer and Elliott, were all for it. Spencer was studying the judicial system in his eighth-grade social studies class, and when she started to explain how the case might travel from one court to the next, he interrupted. “Like to the Supreme Court?” he said, excited.

“Yes,” she replied.

“Like
Dred Scott
?” he asked, mistakenly referring to the infamous 1857
Supreme Court case that had declared that blacks, slaves as well as free, could never be citizens of the United States.

“Not exactly,” she said with a smile. “Hopefully more like
Brown v. Board of Education
,” the landmark case that had ended segregation.

But the blending of their families had been tougher on Tom and Frank, Sandy’s boys. After Sandy left and moved them in with Kris, their father’s alcoholism had worsened. He had died of the disease just a week before Kris and Sandy’s wedding ceremony, the one they held to mark the San Francisco City Hall marriage that had subsequently been deemed invalid.

The boys had told her that if she wanted to go ahead with the lawsuit, it was fine with them, but they did not want to play a role. They certainly did not need to hear their father’s name dragged through the mud, Sandy worried, in testimony broadcast to the nation.

“I don’t want this to be about speaking ill of Matt,” she said, especially “with this YouTube crap and his family watching.”

Olson understood, but he worried that Cooper could try to use her affair against them in a panoply of ways. Her ex-husband’s alcoholism, he said gently, was important to address, because “it sounds to me that your relationship with Kris was not a precipitating factor in the dissolution of your marriage.”

The two women had met in a computer class Sandy taught for government employees. Kris, who was working as a county child welfare worker at the time, was immediately drawn to Sandy. She was hyper and funny, with dishwater blond hair that fell below her shoulders and a long hooked nose that made her look a bit like the actress Meryl Streep. Sandy noticed Kris right way too. A masculine woman with short brown hair and an expressive face, she wore stylishly bold black-framed glasses and had an adventurous spirit. She had been raised in Bakersfield, California, a deeply conservative part of the state, but had been brave enough to embrace her sexuality in college.