Forcing the Spring: Inside the Fight for Marriage Equality (20 page)

T
he next witness, Gary Segura, a political scientist from Stanford University, did not pack the emotional punch of Ryan Kendall. But since he was a leading expert on the relative political power of minority groups in America, his testimony went to a critical question in the case: Do gays and lesbians have the political clout to protect their interests in the democratic process, as Cooper contended, or do they require the courts to step in with the type of extra protection the Constitution affords to other vulnerable minorities, as Olson was arguing?

By any measure, Segura told the court, gays and lesbians are relatively powerless to address the discrimination they face. He began with the ballot initiative process that had stripped them of the right to marry in California. As Matt McGill explained, “The other side is going to pound the table and say, ‘The people have spoken, the people have spoken!’ And we’re going to say, ‘Yeah, that’s part of the problem.’”

Segura told the court that ballot initiatives, which allow voters to bypass their elected representatives and pass laws or amendments to their state constitutions like Prop 8, have historically been a tool for the majority to roll back the legislative or judicial gains of unpopular minorities. When the federal government took steps in the 1960s to protect African Americans from housing discrimination, for instance, California voters passed an initiative allowing property owners to continue to rent or sell to whomever they wanted. More
recently, voters in the border state had taken aim at Latino immigrants with an initiative that allowed the state to deny benefits to anyone suspected of being illegal.

But no group in America had been targeted by ballot initiatives more than gays and lesbians; Segura put the number of measures at around two hundred since the 1970s. He said gays and lesbians had lost 70 percent of those contests, and 100 percent of the contests that specifically involved banning them from marrying or adopting children.

“The initiative process has really been the Waterloo of gay and lesbian politics.”

Another measure of the political powerlessness of gays and lesbians, he said, could be found in hate crime statistics. National data compiled by the FBI showed that violence against gays and lesbians had increased in the previous five years. In 2008, the last year for which data was available, 71 percent of all hate-motivated murders and 55 percent of all hate-motivated rapes in the nation were of gay men and lesbians. Locally, while hate crimes based on race, ethnicity, or national origin had fallen by 16 percent in Los Angeles from 2007 to 2008, the number targeting gays and lesbians had jumped by 21 percent.

“I have known of individuals who simply don’t leave a bar without two people because it’s just not safe,” Segura said. “There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity [more] than a gay man or lesbian.”

Ted Boutrous, who was handling the direct, turned next to what Segura called a “feeling thermometer.” Political scientists ask people to rate, on a scale of zero to 100, how warmly they feel toward various religious, political, ethnic, and other groups. Those test showed that while Americans had grown warmer toward gays and lesbians over time, they were still “not very fond” of them, Segura testified.

Every group has its haters, but what struck Segura was that racial minority groups like African Americans and Latinos that still faced significant discrimination and were afforded extra judicial protection were nonetheless held in higher esteem than gays and lesbians.

The pluralistic ideal, “where I’m trying to persuade you of the rightness of my position and you are trying to persuade me of the rightness of your position,” presumes that two groups armed with resources can fight out their
disagreements in the democratic process, Segura said. But it does not work when one of those groups is as underrepresented in elected politics as gays and lesbians are, in a climate where not only “fringe” elements of society but sitting U.S. senators and cable talk show hosts feel free to publicly compare the desire of two members of the same sex to marry to a man wanting to marry his turtle, dog, or goat.

When a group is seen as “morally inferior, a threat to children, a threat to freedom, if there’s these deeply seated beliefs, the range of compromise is dramatically limited,” he told the court. “It’s very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person.”

Olson understood, better than some of the liberal members of the legal team, the pitfalls of talking about the role organized religion played in the passage of Proposition 8. Close friends of his, good people, opposed same-sex marriage out of religious principle. Six of the nine justices, including Justice Kennedy, belonged to the Catholic Church, which taught that homosexual acts are a “serious depravity.”

This case was about whether government could discriminate—the Constitution clearly allows churches to refuse to marry same-sex couples—and Olson’s gut told him to steer clear of a line of argument that had the potential to drag him into a distracting religious liberties debate and turn off the very people he was trying to bring around.

But as much as Olson wanted to be sensitive to people’s religious convictions and not “turn this into God versus gays,” as Boutrous put it, his views on the matter evolved as his team dug into the inner workings of ProtectMarriage.com. The discovery documents that Cooper had been forced to turn over, along with materials culled from public sources, made clear that a powerhouse coalition of religious groups had formed the backbone of ProtectMarriage.com’s Yes on 8 political operation.

One of the chief architects of the campaign was Catholic archbishop Salvatore Cordileone of San Francisco. He had enlisted Maggie Gallagher, the
cofounder of the nonprofit National Organization for Marriage and one of the most vocal opponents of same-sex marriage, to help put Prop 8 on the ballot. NOM, as it is known, became a conduit that allowed donors to anonymously give to the ProtectMarriage.com campaign.

Chief among them: the Mormon Church, which not only raised around half of the nearly $39 million spent to pass Prop 8, but provided twenty thousand volunteers to get out the vote, according to one document. Evangelical ministers and groups like Focus on the Family rounded out what other documents entered into evidence described as “an aggressive grassroots campaign” involving coordination among as many as three thousand pastors.

There was even a “Pastors’ Rapid Response Team” to quickly disseminate targeted messages to congregations. An e-mail that Mark Jansson, one of the five official proponents of Prop 8 and the Mormon Church’s liaison to the campaign, had been forced to turn over stated that the campaign “was entirely under priesthood direction.”

The influence that organized religion wielded in shaping Californians’ views on same-sex marriage simply could not be ignored, and a decision had been made to address it head-on during Segura’s testimony. But first, why not set the stage by letting two of Cooper’s withdrawn witnesses do the talking?

That morning, extended excerpts from the depositions that Boies had taken of the two McGill University religious scholars had been played for the court. In addition to the helpful comments each had made about the children of same-sex couples benefiting if their parents were allowed to marry, both acknowledged that there was a religious component to antigay bigotry, with one even agreeing that it had helped create a climate of physical danger.

“Unbelievable,” Rob Reiner told Olson during a break. “Did you kill the guy? Yes! Did you use this knife? Yes!”

“David isn’t telling you, but he hypnotized those witnesses,” Olson said, as Yusef Robb rushed past to put the finishing touches on a press release entitled “Defendant Experts Undercut Prop 8.”

Cooper, listening, had slumped over to one side, a resigned look on his face.
Even if he could have convinced his withdrawn witnesses to take the stand, he’d made the determination that it likely would not have helped matters. In
the end, all he could do was turn on the experts, entering into evidence those portions of their depositions in which Boies had attacked them for their lack of expertise and knowledge.

Now Boutrous asked Segura for his thoughts on the deposition testimony.

Segura said it confirmed what he had previously believed: “That religion is the chief obstacle to the ability of gays and lesbians to make political progress.”

No other minority group has faced such unified opposition from religious organizations, Segura told the court. When African Americans were fighting for their civil rights, virtually every denomination but the Southern Baptist Convention supported them. Gays and lesbians faced the inverse, with most of the major denominations arrayed against them.

“Biblical condemnation of homosexuality and the teaching that gays are morally inferior on a regular basis to a huge percentage of the public makes the political ground, the political opportunity, very hostile to gay interests,” he said. “It’s very difficult to overcome that.”

David Thompson’s cross-examination of Segura crisscrossed the American political landscape, searching for signs of political progress that could be turned into a legal negative.

Wasn’t it true that the number of openly gay elected officials had risen dramatically in the last eight years, from 257 to 445? he asked. Didn’t the fact that California’s domestic partnership law had passed over the objections of “biblical literalists” suggest that the church was not as powerful a force as Segura had suggested? What about the fact that gays and lesbians were never disenfranchised in the way that blacks and women were? And how was it possible to conclude that the group had no power in places like New Hampshire and Vermont, where gays and lesbians had legislatively won the right to marry?

Segura was prepared for this line of questioning. Though the Supreme Court had not spelled out exactly how political power should be calculated, it was the legal team’s view that “the test under the Constitution was not whether you lack power in a particular state,” Boutrous had told him during one prep session. Segura had nodded, telling Boutrous that during the 1940s there were
towns run by blacks, but that did not mean that blacks had political power in the era of Jim Crow.

Now Segura told the court that he believed that the question of political power was a national one. Gays and lesbians might be able to marry in Vermont, but the federal government refused to recognize those marriages. Local electoral success needed to be judged in context, he said. The fact that a lesbian was elected mayor in Houston, for instance, was not a reflection of the power of lesbians but rather the racial politics of that city; Segura told Thompson that her sexuality was in fact an issue in the race but she won because she was white and her opponent was black. California might have domestic partnerships, but with the passage of Prop 8 voters had constitutionally established gays and lesbians as “second-class citizens.”

Afterward, Boies said he found Thompson’s style “perverse.” The opposing lawyer was making all the right points, good points like the fact that the Speaker of the California Assembly was an openly gay man, Boies said. But why not wait until he had his own friendly witness on the stand to dump all of that into the record? By raising these issues with the plaintiffs’ witness, Thompson was allowing Segura to put them in context and explain it all away.

Thompson had, for instance, found passages on the Web site of the Human Rights Campaign, in which the largest gay rights group in the country boasted of its political muscle. But when he asked Segura about them, the political scientist joked that “I’m beginning to think you are on their mailing list,” before adding that the explanation in his view was simple: HRC, as it is known, needs to raise money, and people historically don’t give to a group whose motto is, “Donate to us, we are unlikely to make a difference.” Thompson had gotten Segura to acknowledge that it was possible that some percentage of voters might have been motivated to pass Prop 8 out of a negative reaction to “activist judges,” but then given him the chance to explain why he did not think that was the primary driver.