Forcing the Spring: Inside the Fight for Marriage Equality (12 page)

“Now, does the right to marry, as secured by the Constitution, mean the right to have a marriage license issued by the state?” Walker asked.

Olson said he believed it did, leading Walker to another question.

“Could the state get out of the marriage license business?”

“If California allowed people to marry without a license,” Olson conceded after some back-and-forth, “which is what I think is part of the import of your suggestion, and said that the only thing we’re regulating is something called domestic partnership, and everybody can do that, yes, that might mean that California is treating people equally.” But, he said, “that will never happen.”

“Why?” the judge wanted to know. “That would solve this problem, wouldn’t it?”

Olson said that while he did not hold himself out as a political prognosticator, he suspected that the people of California would not be willing to abandon an institution that means a great deal to people, one that indeed is so important that the defenders of Proposition 8 maintain it must “be preserved for opposite-sex couples and withheld from same-sex couples.”

“Well, but the proponents argue that marriage has never been extended to same-sex couples in the past, and so we’re simply preserving a tradition that is long established and that is, indeed, implicit in the very concept of marriage,” Walker countered.

Olson cited the California Supreme Court decision that found that same-sex couples had the right to marry under the state’s constitution, but Walker was unimpressed. This was a federal court, and he wanted to know what had changed so that now the U.S. Constitution’s due process and equal protection guarantees must be understood to protect what many states had always forbidden.

“What changed was Proposition 8, which isolated gay men and lesbian individuals and said: You’re different,” Olson replied. “It put them in a different category. That’s discrimination.”

Would the evidence show that Proposition 8 was motivated by an intent to discriminate against gays and lesbians? Walker demanded. “The evidence, what’s the evidence?”

“The evidence will show that each of the rationalizations for Proposition 8, invented, invented by its proponents, is without merit,” Olson said. “They mention procreation. Procreation cannot be a justification, inasmuch as Proposition 8 permits marriage by persons who are unable or who have no intention or no ability whatsoever to have children or produce children.

“Proposition 8 also has no rational relationship to the parenting of children,” he continued, “because same-sex couples and opposite-sex couples are equally, in California, permitted to have and raise children in this state. The evidence in this case, from the experts, will demonstrate that gay and lesbian individuals are every bit as capable of being loving, caring, and effective parents as heterosexuals. The quality of the parent is not measured by gender, but by the content of the heart.”

“If same-sex couples are permitted to enter this institution, this esteemed institution of marriage, doesn’t that change the institution?” Walker asked.

“No,” Olson answered. “It will fulfill the institution.”

Prior to the
Loving
decision, President Obama’s biracial parents would not have been able to marry in Virginia, Olson noted. “The history, a point I was just about to make, of marriage has evolved. It has changed to shed irrational, unwarranted, and discriminatory restrictions and limitations that reflected the biases, and prejudices, and stereotypes of the past.”

It went on like that, until Walker finally let Olson alone long enough to make the points he had come to make. Convicted criminals, substance abusers, and sex offenders are all legally permitted to marry in California, he declared, just as long as they aren’t gay.

Olson’s own mother, when he first told her he was taking the case, had questioned him as to why the voters of California shouldn’t have the final say in the matter. He had convinced her of the merits of his argument by explaining that while marriage is traditionally regulated by the states, the state’s power is subject to constitutional limitations, and it was a point he knew he needed to hit hard now.

“We wouldn’t need a Constitution if we left everything to the political process, but if we left everything to the political process, the majority would always prevail, which is the great thing about democracy, but it’s not so good if you are a minority or if you’re a disfavored minority or you’re new or you’re different,” Olson declared, his voice growing at once softer and more emphatic.

“We have courts to declare enactments like Proposition 8 that take our citizens, our worthy, loving upstanding citizens who are being treated differently and being hurt every single day, we have courts to declare those measures unconstitutional. And that is why we are here today.”

“Very well,” the judge said.

“Good morning again, Chief Judge Walker, and may it please the court,” Cooper began, when it was his turn to give an opening statement. “On November 4, 2008, fourteen million Californians went to the polls to cast their ballots on an issue of overriding social and cultural importance: whether the institution of marriage should be redefined to include couples of the same sex. Over 52 percent of the—those—Californians voted to restore and preserve the traditional definition of marriage as a union of a man and a woman. A definition that has prevailed in virtually every society in recorded history.”

Cooper’s theory of the case was pretty straightforward. No court in the country had held that laws targeting gays and lesbians should be subject to heightened scrutiny. Assuming that he could keep the court from reaching that conclusion in this case, it would be up to Olson to prove that Proposition 8 served no conceivable state purpose and had instead been motivated by animus.

Californians, Cooper argued, had been very generous in extending rights and benefits to gay and lesbian couples, enacting antidiscrimination protections and recognizing same-sex relationships through domestic partnerships.

“Gays and lesbians have secured these and many other legislative victories by mobilizing a strong and growing coalition of supporters,” he said, ticking off a number of allies. When he got to “Hollywood,” Michele Reiner compressed her lips and looked to the ceiling. One of the great ironies about Hollywood is that with studio executives afraid to cast openly gay actors in romantic leads, it was still one of the most closeted places in America.

Those victories, Cooper argued, demonstrated not only that gays and lesbians wielded substantial political power and therefore should not be considered a suspect class, but also that Californians bore no ill will toward gays and lesbians, but simply had a “special regard for this venerable institution.”

“There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage,” he said, quoting a prominent rabbi before turning, as Olson had, to Obama.

Cooper intended to turn the president into a star, uncalled witness in his case, a man who exemplified the notion that thoughtful people of goodwill can differ on the subject of same-sex marriage without being bigots.

Obama had carved out a tortured position on same-sex marriage. During the presidential campaign, he promised to support the repeal of the Clinton-era Defense of Marriage Act, because he said the definition of marriage should be left to the states. But he also said he personally did not support allowing gays and lesbians to wed, and that arrangements like civil unions that offered all the benefits of marriage were the best way to “secure equal treatment” for gays and lesbians.

Why? Cooper quoted the president’s own words: “Marriage has religious and social connotations and I consider marriage to be between a man and a woman.”

Walker, who had allowed Cooper to make his case without interruption up to this point, finally felt compelled to jump in. “Mr. Olson made the point if the president’s parents had been in Virginia at the time of his birth, their marriage would have been unlawful. That indicates that there is quite a change in the understanding of people’s entitlement to enter into the institution of marriage.”

If the specter of
Roe v. Wade
hung over Olson as he tried to convince the court that the time to act was now, given Ginsburg’s statements that the decision had moved “too fast,” the historic
Loving v. Virginia
case that had overturned interracial marriage bans was one of Cooper’s biggest hurdles.

In finding that the Virginia statute both violated the Constitution’s promise of equal protection under law and deprived the Lovings of a fundamental freedom without due process of law, the Court had declared that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

Shortly before her death in 2008, Mildred Loving, whose marriage to a white man sparked that historic litigation, had issued a statement endorsing same-sex marriage. “My generation was bitterly divided over something that should have been so clear and right,” she wrote. “I support the freedom to marry for all. That’s what
Loving,
and loving, are all about.”

“
Loving
is by far [Olson’s] best case,” Cooper later said.

Cooper’s only recourse was to circle back to his main argument: that marriage, as he put it, is “fundamentally a pro-child social institution anchored in socially-approved sexual intercourse between a man and a woman,” a view that caused not a few people in the courtroom to giggle.

“The racial restriction in
Loving
was at war with the central purpose of marriage,” Cooper continued. “You had a situation where two individuals whose sexual relations would [naturally] lead to procreation, and yet the state forbade those individuals from forming a marital union.”

“Is that the only purpose of marriage?” Walker asked. “Where do the other values associated with marriage come in, companionship, support?”

“The question is, Your Honor, is this institution designed for these pro-child reasons, or is it to produce companionship and personal fulfillment and expression of love? Are those purposes themselves important enough to run the risks to the accomplishment of the pro-child purposes?”

“What are those risks?” interjected Walker, back in his what-is-the-evidence mode.

“The risks are, Your Honor, that the nature of the institution will be altered, that it will be deinstitutionalized,” Cooper responded. “Now, the plaintiffs dispute. They dispute the likelihood that these harms will result from same-sex marriage. And our point, Your Honor, is that they cannot prove that they will not flow from legalizing same-sex marriage.”

“Excuse me,” Walker interjected. “Is there any evidence from the countries and states that have permitted same-sex couples to marry that marriage has been deinstitutionalized, or has led to lower marriage rates or higher rates of divorce or greater incidents of nonmarital cohabitation, these other matters you’ve described?”

Cooper said there was and he believed the evidence would show that it had.

“Which witness will speak to this?” Walker asked.

“The plaintiffs actually will have witnesses who speak to this,” Cooper answered. Olson looked puzzled; the witnesses he had lined up had made no such concessions.

“But my point also, Your Honor,” Cooper hurried along, “is that with respect even to the foreign countries, where there is a greater body of experience, or at least a longer period of experience, confident and reliable judgments simply cannot be made.”

Walker turned to Cooper’s assertion that allowing same-sex couples to marry would increase the likelihood that bisexuals would be allowed to enter into polygamous relationships. “What’s the evidence?”

Cooper dodged, saying such a conclusion flowed from logic.

“This is ridiculous,” Michele Reiner whispered to her husband. Cooper, meanwhile, was winding up his argument.

“The reality is, Your Honor, you will hear nothing but predictions in this trial about what this—about what the long-term effects of adopting same-sex marriage will be on the institution of marriage itself, and on the social purposes that it serves.”

Attitudes about same-sex marriage might be changing, Cooper said, but that “is not a reason that the constitution has somehow changed to ordain the results” that Olson was seeking. “It’s a reason, and he has spoken eloquently to many reasons, why the people of California, perhaps the people of other states in this country, should consider his arguments the next time the issue is before them in the political process.”

“Thank you, Mr. Cooper,” Walker said. “I believe those are the opening statements and we will take a break until ten minutes after the hour.”