Forcing the Spring: Inside the Fight for Marriage Equality (46 page)

But time was running out when Chad and Boies sat down in the West Wing with Valerie Jarrett, the president’s friend and adviser, and White House counsel Kathryn Ruemmler. The Supreme Court was set to hear arguments in the two marriage cases on March 26 and March 27, and the solicitor general had only a month left to make a decision.

Olson, in e-mail exchanges with Chad prior to the White House meeting, had advised him to stress the moral argument, the president’s legacy. Chad had forwarded the exchanges to Kristina, asking for her thoughts. Absolutely not, she said. The president and his people were perfectly capable of assessing his legacy on their own.
Stress the law, and why bringing in the solicitor general would legally make a difference.

Boies, following that advice, began by laying out those reasons, at one point becoming teary-eyed. He spoke about the inaugural speech in the context of the case. Now that the president had said what he said, Boies argued, “silence would not be considered neutral.” It would, in fact, be deeply harmful, sending a signal to the Court that even the Obama administration believed that the position that gays and lesbians have a fundamental right to marry was a bridge too far. It could cost them the case.

“
It’s already being used against us,” Boies said, citing Cooper’s briefs.

It had already been decided that Olson alone would be arguing before the Supreme Court. To have a conservative make the case for same-sex marriage to the justices had been the point from the outset, and Chad was insistent. But Boies did not know that. On press calls, Olson had said it was up in the air. (“
It’s awkward,” he explained in a private aside.)

If the solicitor general jumped in, Boies now told the two women, Olson would have to give him ten minutes of his time, which meant that he, Boies, would not have a chance to argue.

“
And there’s no case in my entire life I’d rather argue than this one.”

Both White House officials seemed impressed by their pleas. But further lobbying via the press, Boies recalled Jarrett saying before they took their leave, would not be helpful. This was a legal decision, not a political one.

The easiest course for Solicitor General Verrilli to take would have been to give the Proposition 8 case a pass. Arguing that state bans like California’s were unconstitutional complicated the administration’s case against DOMA.

It was possible to make a logical argument that Congress had intruded on an area traditionally left to the states in passing DOMA, while simultaneously
arguing in the Proposition 8 case that states cannot do whatever they want in the marriage arena: The Supreme Court had demonstrated that there was a constitutional floor when it struck down state laws banning interracial marriage in
Loving v. Virginia
.

The bigger hurdle was a strategic one. Verrilli’s view, expressed during robust internal debates, was that the department could not just go gliding down this path in order to reach a happy place without first understanding the risks.

DOMA was by far the easier lift of the two cases. The justices did not have to declare a nationwide right for same-sex couples to marry; they simply had to find that the law unconstitutionally undermined a democratic process that had led some states to recognize the marriages of same-sex couples by treating those marriages differently for no good reason. The remedy was relatively uncontroversial: Already married couples would simply start receiving benefits.

What happens, Verrilli had pressed Olson during their meeting, if you prevail on your broader argument? What is the remedy?

“
We said it wouldn’t be like
Brown v. Board of Education,
where you had to redesign entire school systems,” Terry Stewart recalled. “It would just be a matter of county clerks issuing licenses. And then Don said, ‘Yeah, but I’m thinking about county clerks in Mississippi.’”

It was clear he was concerned that a fifty-state ruling finding a constitutional right for same-sex couples to marry had the potential to create the kind of backlash that could give some justices pause. If Justice Kennedy became convinced that the only way he could strike down DOMA was to adopt a rule of law that would require striking down same-sex marriage bans across the country, the worry was that he might get cold feet. He might also see the administration’s entry into the case as political.
Either way, as Attorney General Eric Holder later put it, “we potentially run the risk of losing him.”

On the other hand, the justices were smart people. They understood that the position the Justice Department had already taken in the DOMA case, that laws targeting gays and lesbians deserved heightened scrutiny, made it difficult for bans like Proposition 8 to survive a constitutional challenge. There were ways for Verrilli to dance around that—deflecting questions as hypothetical and best left for another day—but the real question was, should he?

Olson had sent over a memo, prepared by Terry Stewart at Verrilli’s request, outlining the parallels between the arguments used to defend interracial marriage and same-sex marriage bans. They were, Verrilli told colleagues, striking.

The proponents of Proposition 8 argued that allowing gays and lesbians to marry could deinstitutionalize traditional marriages. The Alabama Supreme Court, in an 1877 case, opined that the state must “guard” against the “disturbances” interracial marriage would produce. The proponents of Proposition 8’s argument that the impact of allowing gays and lesbians to marry was unknown was also echoed in some of the interracial marriage ban cases: In
Loving v. Virginia
, for instance, the Commonwealth argued that the Court should defer to the wisdom of the states in determining the “desirability of a policy of permitting or preventing such alliances,” given the “conflicting scientific opinion upon the effects of interracial marriage.” It also referenced the state’s interest in promoting an optimal child-rearing environment, noting the burden “half-breed” children faced in being accepted by society.

Verrilli read Martin Luther King Jr.’s “Letter from Birmingham Jail,” responding to criticisms by fellow black clergymen that his demands were premature and ill timed. The oppression of African Americans was beyond compare, but the civil rights leader’s words, about how one can only fight a “degenerating sense of ‘nobodiness’” for so long before “the cup of endurance runs over,” resonated. He lingered over the lopsided suicide statistics that charted the despair felt by many gay, lesbian, bisexual, and transgendered teens. He followed his own heightened scrutiny argument to its logical conclusion. And then he shared his recommendation with Holder: The government should take a stand.

Holder and Chad went way back; Holder had served on the board of Rob Reiner’s foundation. He, like Verrilli, believed that there were “collateral consequences” to the department’s decision that could not be ignored. “I mean, Chad is right. The way a gay boy or young gay girl view themselves is similar, again, to the way African Americans in 1953, ’52, saw themselves when they had to deal with this notion of ‘separate but equal.’

“Staying out was just not consistent,” Holder said, “with where we wanted to be tactically, legally, or morally.”

Verrilli, he believed, had made the right decision.

President Eisenhower famously read and edited the solicitor general’s amicus brief in the
Brown v. Board of Education
case. That did not happen in
Hollingsworth v. Perry
. But at a meeting in the Oval Office to go over the Justice Department’s recommendation, President Obama did play an instrumental role in shaping the final product.

In addition to Holder and Verrilli, Ruemmler, his White House counsel, and Denis McDonough, his chief of staff, were also in attendance. The meeting lasted close to an hour, an extraordinary block of presidential time that spoke to the importance of what they were discussing. “This was not a briefing,” Holder recalled. “This was an interaction. This wasn’t where we were getting him up to speed for a decision. This was a meeting of equals in terms of knowledge of the facts, knowledge of the law. This was four lawyers and then Denis getting together to talk about what the appropriate position was.”

Anticipating what the justices might do, “the president was asking Don very hard questions,” Ruemmler recalled, including how the court should reconcile Obama’s own prior comments that definition of marriage was a matter that should be decided by the states.

“He was almost using us to question himself, to check his own—where he may have been himself,” Holder said.

At Chad’s request, Ben Jealous, the head of the NAACP, had joined him in coauthoring a private letter to the president, pleading the case for intervention. Chad had also lobbied Vice President Biden’s chief of staff. But the president did not need to be persuaded on the larger moral question; he too saw the marriage debate through the prism of civil rights, according to both Ruemmler and Holder.

Obama had seen firsthand just how much his endorsement of marriage equality meant when one of the first lady’s good friends told him afterward that it took the president’s words for his mother to finally really accept him.

With everyone in agreement on the threshold question of whether the government should take a position, much of the rest of the meeting was dedicated to what position it should take. The president had in the past spoken to Holder about the fragility of the Court’s power. Now, he talked about Justice Kennedy’s devotion to federalism and states’ rights. He made it clear that he wanted to
offer the justices an incremental way to decide the Proposition 8 case that would not force them to overturn bans across the country.

“By the time we leave,” Holder said, “we know what position we’re taking, what our strategy is, and it’s all decided at that point.”

On the afternoon of February 28, Ruemmler called Chad with a heads-up: When the plaintiffs stood before the justices, they would not be standing alone. Standing with them would be the U.S. government. “The next time I see you will be at the Supreme Court,” she said.

Jarrett called him next, excitedly talking about what a historic moment it would be when the solicitor general argued the case alongside Olson in just a few short weeks.

The administration’s brief, filed at 6:30
P.M.
that evening, argued that Proposition 8 violated the Constitution’s equal protection clause. And, as the president directed, it offered the Court a path to rule in favor of the Proposition 8 plaintiffs without going the full distance. In what became known as the “eight-state solution,” the solicitor general said that while heightened scrutiny should be applied to all same-sex marriage bans, those bans were particularly hard to justify in the states with domestic partnership laws that offered all the benefits of marriage but the name. Besides California, that argument would cover Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

Chad instantly sent out a press release: “The President has turned the inspirational words of his second inaugural address into concrete action.”

Then he and Adam, who had relocated to Washington, D.C., in advance of the arguments, headed off for a celebratory frozen custard at a nearby Shake Shack.