Forcing the Spring: Inside the Fight for Marriage Equality (23 page)

Now, over drinks, with the second week of trial in the rearview mirror, everyone opened up.

“The first time I heard a friend call his partner ‘husband,’ I cringed,” Piepmeier said. “It sounded—”

“Pretentious?” Herek offered.

“Yes. But then I thought, ‘Why am I, of all people, having a problem with this?’” she said. “I know I’m the victim of internalized homophobia.”

Herek nodded. Like Meyer, Herek was an expert in stigma, but unlike him he was gay. He confided that he too had trouble calling his husband ‘husband,’ and for the same reason: It seemed like a word reserved for other people.

Piepmeier and her wife, Emily, had been together for ten years. They had married during the window when it was legal and had made a beautiful home together in Oakland, looking after their five adopted cats and each other. But it was only recently, after becoming involved in the case, that Piepmeier had begun referring to Emily as her wife. She had started with close friends and worked her way up to the lawyers on the team.

She worried that it was not the panacea that the plaintiffs hoped it would be: Restaurant hostesses still raised their eyebrows, she said, when she told them she was expecting her wife to join her. But she forced herself to move beyond her discomfort.

“I know that if we don’t claim this language,” she told Herek, “it will never be ours.”

With the plaintiffs planning to rest their case on Monday, everyone would soon return to the mundane duties of workaday life. Dettmer said he had an actuarial malpractice case. Stewart had a case involving Hare Krishnas at the airport. Piepmeier, who had a patent dispute, kept telling herself to savor these moments.

“Will we ever do anything as important again?” she wondered aloud.

Maybe not, Dettmer said. “But did you imagine a few years ago that you’d be working on a case like this one?”

T
hat weekend, Cooper finished delivering the last of the discovery documents that the plaintiffs were entitled to see. The “web of evil,” as Matt McGill liked to call the evidence of animus that the team was compiling from the campaign’s internal communications and public sources, was sorted at all hours of the day and night by a team of young associates who divided it into three piles.

Incendiary political messaging went into one pile, to be used as evidence that the procreative argument now being offered in court was not what was used to persuade voters. Documents that helped show the connections between the official ProtectMarriage.com campaign and the groups that acted as its foot soldiers went into a second pile. Evidence that showed that ProtectMarriage.com promoted, funded, and participated in the dissemination of antigay sentiments expressed by those groups went into a third.

The team planned to end their case on Monday morning with a best-of-the-hate video compilation. The idea was to show that whatever the justifications for Proposition 8 now being offered in court by ProtectMarriage.com, an animating feature of the campaign to sell voters on the initiative was a direct appeal to people’s discriminatory impulses.

As Chris Dusseault put it, “Don’t tell me, Chuck Cooper, that this campaign was all about love and granola, when your campaign paid for this stuff.”

The job of refining it all into a concise video reel that Dusseault could
present to the court had fallen to Piepmeier and Ted Uno, a forty-one-year-old attorney from Boies’s firm. It was intense work, against a suboptimum deadline; under normal circumstances this would have been done months before trial.

“I spent yesterday looking through material of people who are antigay on the Internet,” Piepmeier said on Sunday. “By the end of the day, I was in a horrible mood, and it wasn’t until later that I realized why. I’m reading all this stuff, and it’s different from reading material about semiconductors. They are saying it about me. That I am a sinner, that I am depraved.”

Both Dusseault and Terry Stewart were looking forward to seeing the fruits of the two younger lawyers’ labor. By now, sleepless nights and shared takeout had given them all a better understanding of one another, and preconceptions had fallen by the wayside.

Piepmeier had been surprised by how passionately Olson felt about this cause. Until the Proposition 8 case, she had assumed she knew everything there was to know about the conservative star at her law firm. “It’s reminded me not to judge a book by its cover,” she said.

And Stewart now knew that she had been wrong to think that as a straight white guy, Dusseault had no skin in the game. The two had bonded when he shared with her how offended he was by the argument that Prop 8 was rational because children do best when raised by their biological parents. His wife had lupus, which can flare up and cause complications in pregnancy, so their children were adopted.

Still, this was a diverse group, conservative and liberal, gay and straight, and they did not always see things the same way, a fact that became readily apparent after Piepmeier and Uno screened the reel for Dusseault.

“You don’t like it,” Terry Stewart said afterward.

“There are parts of it I like,” Dusseault protested.

The presentation mixed official campaign ads circulated to mass audiences with material from what the team had taken to calling the unofficial campaign, where more pointedly antigay messages were disseminated to targeted groups of voters. Dusseault liked the footage taken from religious rallies in the weeks leading up to the election that had been broadcast by satellite to congregations around the state. The simulcasts featured pastors from some of the biggest evangelical churches in the country. One speaker claimed that same-sex marriage was a tragedy on par with the 9/11 terrorist attacks. Another said that
allowing children to be raised by same-sex couples turned “nature on its head.” A third wondered how a child with two moms would learn to “change the oil,” and a fourth charged that permitting gay couples to wed would result in pedophiles being allowed to marry seven-year-olds, mothers their sons, and even legalized bestiality in which men would be permitted to marry horses.

Other excerpts featured prominent black ministers attacking gays and lesbians for equating their fight with the civil rights battle waged by African Americans. Internal e-mails showed that religious leaders within the Prop 8 campaign understood that, as one article they circulated among themselves put it, “one of the most effective morality-based arguments for same-sex marriage, the one that persuades more people than any other argument, is the one that equates opposition to same-sex marriage with the old opposition to interracial marriage.”

In a confidential memo dated one month after the passage of Prop 8, the National Organization for Marriage spelled out its pushback strategy. Religious black voters might vote Democrat, but they tended to be socially conservative, and the organization described its goal in clear terms: “Drive a wedge between gays and blacks—two key Democratic constituencies. Find, equip, energize and connect African American spokespeople for marriage, develop a media campaign around their objections to gay marriage as a civil right; provoke the gay marriage base into responding by denouncing these spokesmen and women as bigots.”

The legal team did not have the benefit of that explosive document; it would not emerge for another three years, when it was unsealed as part of a campaign finance investigation into the organization. But the simulcast vividly demonstrated how it worked on the ground in California.

Bishop Harry Jackson, a senior African American pastor of a three-thousand-member Pentecostal church in Maryland, told Tony Perkins of the Family Research Council that it offended him that homosexuals were claiming an affinity with blacks forced to sit on the back of a bus, since “I didn’t choose to come into the world and live a deviant lifestyle.” Don’t compare “my skin with their sin,” seconded the Reverend Dwight McKissic, a prominent African American Southern Baptist minister from Arkansas.

It was good stuff, Dusseault thought, but he wanted it cut down. Keep the religious material to the “most crass stuff,” he told the other lawyers. “I’m
wrestling with this because our position is that the other side can believe whatever they want.”

“You can’t put discrimination on trial without showing the roots of it,” Stewart argued. “I understand that at the beginning we were like, ‘We don’t want to touch religion—it’s the third rail.’ But—”

“How do we take it out of the context of religion when a lot of the impetus was religious beliefs?” Piepmeier finished.

Dusseault thought it over and came around. People are entitled to believe what they want, but when they attempt to legislate their beliefs, the courts could certainly scrutinize what motivated them. “Included within animus is moral disapproval based on religious belief,” he agreed.

But he was more concerned about some of the official ProtectMarriage.com ads that the group wanted to use as evidence of animus. One featured a pigtailed little girl telling her actress mother, “Guess what I learned in school today? That a prince can marry a prince, and I can marry a princess!” Another warned that “opponents of Proposition 8 said gay marriage had nothing to do with schools. Then a public school took first graders to a lesbian wedding, calling it a teachable moment.”

They all understood Dusseault’s hesitation. The danger was that some judge or justice down the line might be convinced by the ads. Prentice himself had boasted of the power of the argument that they now proposed to use against the proponents in remarks to the conservative California Family Council that the team had unearthed. “
All it took when we asked someone, do you plan to vote yes, plan to vote no, or are you somewhere in the mushy middle, if they weren’t a solid yes, 80 percent of the time all it took was to tell them did you know that every public school child will be taught this?” he said. “Oh, and they would flip.”

“
We bet the campaign on education,” Frank Schubert had told the
New York Times
.

It was Dusseault’s job to ensure that the evidence they introduced benefited only the plaintiffs, and the gay lawyers knew that it was harder for them than it was for him to be objective about what met that test. “I’m so personally invested in this case that I take things personally,” Piepmeier said. “That’s why I think it’s great that our team is so diverse.”

Uno, like Piepmeier, was gay. He and his partner had been together for
fifteen years and were raising five children. He was a Japanese American, a man of faith who said he knew that his grandmother feared for his soul. He had tried to take those varying viewpoints into account when putting together the reel.

Now he told Dusseault how important it was to demonstrate to the court and the public that the very argument that the campaign had found so effective and that Cooper and his team clearly believed could pass the animus smell test—they had played similar ads himself for the court—was in fact discriminatory. “If you get rid of the more moderate messages, you don’t understand how insidious the discrimination is,” he said.

Stewart tried to put herself in Dusseault’s shoes. “Chris is, well, he’s not queer.”

“Not yet!” Uno said with a laugh.

So the three of them stepped back and tried to explain to him what seemed so obviously hostile to them.

“Maybe this comes from my being a homosexual,” Uno said, “but if I were to say to you that it offends my sensibilities for you to teach children that it’s okay for blacks to marry whites, you’d think that I was the most racist person in the world.”

Dusseault also found the ads offensive. But he worried that not everyone would. Children that age aren’t taught about straight marriage, he said.

That set the gay attorneys off. They all began talking at once about how marriage is ubiquitous in the cultural lives of children, in the fairy tales that they read, in the roles they play as ring bearers and flower girls. No one would think twice about bringing a five-year-old to a wedding, Stewart said. What’s different here, Uno chimed in, is that otherwise reasonable people don’t want children to know about one specific type of marriage.

“Some of our own family members,” said Piepmeier.

“And if you are in mine, many,” Uno said.

Suddenly, it clicked for Dusseault in a way that it had not before. What explanation could there be for the fact that people treated two similar events, the wedding of a straight couple and the wedding of a gay couple, so disparately? As Uno put it, “People may not see it as bigotry, but that is prejudice.”

Framed correctly, the ads offered powerful evidence of animus,
Dusseault realized. He would recommend to Olson that the ads could—and should—stay.

The following morning in court, Cooper’s team focused on distancing Prentice and the rest of the proponents from the religious simulcasts, which clearly worried them more than the official ads that Dusseault played. The campaign had not “produced” the simulcast events, and Ron Prentice had not attended them and did not know what was said there, protested Nicole Moss, the lawyer from Cooper’s firm who had been tasked with distancing Tam from the campaign.

“The campaign does not dispute that these simulcasts were paid for with money that was raised by ProtectMarriage.com,” she said. “But there is no evidence that they had control over the content.”

Dusseault had anticipated this line of attack, and had a slew of documents at the ready. In his deposition, Prentice had acknowledged that the simulcasts had been organized by the “Pastors’ Rapid Response Team,” which the plaintiffs had already established was a crucial component of the campaign’s grassroots apparatus. ProtectMarriage.com had paid close attention even to small details involving the simulcasts: In one e-mail that Cooper had been forced to turn over, Andy Pugno complained that another group was incorrectly being given credit for the simulcast in advance promotional material. “All of the CWA references needed to be taken out,” Pugno wrote. “‘CWA presents’ should read ‘ProtectMarriage.com presents.’”

Another e-mail exchange showed that Prentice had been given an advance four-page outline of the agenda of one of the simulcasts by its chief organizer, an evangelical megachurch located just outside of San Diego headed by Pastor Jim Garlow. Garlow had acted as the master of ceremonies, charging that if same-sex marriage passed, polygamists would be “waiting in the wings.”

But it was a postelection e-mail, between Prentice and Garlow, that was perhaps most damaging. Moss, jumping up to object, protested that the document was irrelevant given that it was dated on November 16, 2008, days after the election.

“Yes,” Judge Walker said. “I noticed that.”

“Your Honor, if I may, I think I can explain the relevance,” Dusseault said. “It
is
a postelection document. And it’s a postelection document in which the head of ProtectMarriage.com is trying very hard to make sure that these simulcasts don’t get out to the public.

“And this is about a
Dr. Phil
show, and what’s going to happen on a
Dr. Phil
show,” Dusseault continued. “And what Mr. Prentice says is, ‘We must control the message from the simulcast, Jim. I don’t see how using any portion of it will not permit the show to
direct the message to the religious bias.’