Forcing the Spring: Inside the Fight for Marriage Equality (6 page)

“
We’ve got the right district in the right circuit with the right opponents at the right time,” Olson would later say. “You gotta be willing to take chances. You can’t be afraid to swing for the fences.”

Smith hoped Olson was right. But he wasn’t sure enough to sign on. It’s just too risky, he told Olson, wishing him luck.

Another potential co-counsel whom Olson considered was Kathleen Sullivan, a constitutional law professor and litigator named by the
National Law Journal
as one of the most influential lawyers in the nation. She was a lesbian,
and she had served as co-counsel on the losing side of the first, unsuccessful challenge to laws criminalizing sodomy,
Bowers v. Hardwick
.

Bringing her on board could help with the gay community in the short term, but Olson had to consider the long game. Justice David Souter was planning to retire at the end of the Court’s term, and Sullivan was thought to be on President Obama’s short list to replace him. If she joined the team and then was nominated and confirmed, she would have to recuse herself in the event the case reached the Supreme Court, which would make the odds of winning much steeper. So after an initial outreach, Olson reluctantly concluded he had to resume his search.

By May, he too was running out of time. Kristina and Chad had the plaintiffs, but he had yet to find co-counsel.

It was then that he hit on the idea to call Boies. In addition to representing Gore in the recount, Boies had successfully taken on goliaths such as Microsoft, was the go-to legal shark for some of Wall Street’s most powerful players, and had represented everyone from Yankees owner George Steinbrenner to radio talk show host Don Imus.

Since the deadlocked election, the two men had formed a surprising friendship. As Boies put it, in all-consuming cases like that one, “there are only a few people you can really talk to—a few reporters, maybe your spouse, and the lawyers on the other side. They are the only ones who are as obsessed as you are.”

They made for an odd pair, and not just because of their politics. Boies, lanky and balding, with a beaked nose that stopped just short of looking predatory, eschewed the type of bespoke suits and Prada shoes Olson favored, instead religiously wearing to court rumpled blue Lands’ End suits, black Merrell sneakers, and a twenty-dollar Casio watch he strapped over his shirtsleeve. It was a cultivated everyman image that belied a lifestyle that afforded him private jets, a Manhattan pied-à-terre, and homes in places like the Turks and Caicos.

But the two lawyers soon found they had much in common, starting with a love of very expensive wine; Boies owned a vineyard in Lake County, California, while Olson’s cellar was considered among the finest in the D.C. area. Both men were in their late sixties but had the energy of much younger men and, despite their wealth, showed no sign of slowing down.

Together with their wives and friends like former NBC anchor Tom Brokaw, they had begun taking annual bicycling trips through Europe. And while they generally avoided talking politics, their discussion of the legal issues of the day had convinced each that neither was the partisan they were made out to be. So when Democrats had held up Olson’s appointment to become President Bush’s solicitor general because of his role in the 2000 recount, Boies had called several senators he knew to personally vouch for his friend and lobby for his confirmation.

Boies had long admired Olson’s ability to anticipate the questions that the justices were going to throw his way and strip the vulnerable points out of his argument before they pointed to them. Olson, for his part, was impressed with Boies’s quick-footedness in a courtroom. His ability to rapidly digest complex subject matter was remarkable, especially given that he suffered from dyslexia. And, unlike Olson, he was a virtuoso at deposing and cross-examining hostile witnesses, a skill that could prove helpful in what Olson considered the unlikely event of a full-blown trial.

After securing Chad’s and the Reiners’ enthusiastic go-ahead—“Katie, bar the door!” Rob Reiner recalled saying of the marquee idea of having “both the winner and the loser of
Bush v. Gore
on my team”—
Olson called Boies’s firm on May 10, and the two connected a few days later.

The Democratic lawyer hadn’t given much thought to the issue of gay marriage until he saw the long lines of same-sex couples waiting for hours to get married after San Francisco’s mayor directed the city clerk to issue marriage licenses in 2004. He recalled gazing at the televised images and thinking, “Why shouldn’t they get married?”

The case was perfect for Boies. Not only was it challenging legally, but its history-making potential and odd-couple story line was sure to garner a huge amount of press interest, and Boies “liked his column inches,” as one person at his firm put it, almost as much as he liked to win.

“
Let’s do it,” he told Olson, even agreeing to a deeply discounted fee that, at $250,000 plus expenses,
represented a fraction of what Olson would be paid.

E
nrique Monagas, an associate at Olson’s firm, could barely swallow as he nervously glanced over every few seconds at the clerk’s window in San Francisco’s federal courthouse, a stack of papers clutched in his hand.

It was May 22, 2009, the Friday before Memorial Day weekend. The team of lawyers that Olson had begun assembling to work on the Proposition 8 case had just gotten word that the California Supreme Court was going to issue its ruling on the last-ditch challenge to Proposition 8 following the long weekend.

Timing is everything, and Olson and Chad had put a lot of thought into when they should file their lawsuit. Olson, still worried about the prospect of other federal challenges to Proposition 8 jumping out ahead of theirs, did not want to wait to file until after the California Supreme Court had ruled. But Chad, the expert on messaging and news cycles, knew it would not look good to announce a federal lawsuit on behalf of same-sex couples before the state’s high court had even ruled against them. The plan was to announce it with maximum fanfare directly after the ruling; it would be ruined if it dribbled out.

So they had sent Monagas, the youngest and least-known lawyer on the team, to the courthouse that day. He was under orders to slip the paperwork in just under the court’s 3:30
P.M.
filing deadline, with the hope that the court would close before the lawsuit could attract any media attention.

As he sat on a bench biding his time, Monagas thought about all that had brought him to this point. Born in Puerto Rico, he had pursued a career in theater design before deciding to study law. As a thirty-three-year-old fourth-year associate, he had never imagined he would be involved in a case of this import, much less one so personal.

That morning, in the San Francisco apartment he shared with his husband, Jason, Monagas had looked in on their eighteen-month-old daughter, Elisa, as she slept in her crib, blond curly hair damp and tousled. The two men had wed before Proposition 8 had passed and had been blessed to be able to quickly adopt. But they worried that Elisa would grow up in a world where their family was not universally accepted. If gays and lesbians were able to marry, Monagas thought, it would go a long way toward dispelling their concern.

As the 3:30
P.M.
deadline for filing complaints drew closer, he grew increasingly antsy. The clerk seemed puzzled by his presence in the empty room, asking him several times if he needed help. “No, no, just waiting on an edit,” he said, by way of an excuse. But when a few people sauntered into the room, threatening to form a line ahead of him just as the court was about to close, he leaped up and, scurrying around them, thrust the paperwork at the clerk.

“This must be an important filing,” she said, bemused at his apparent agitation.

“I don’t know—I haven’t even read it,” he quickly dissembled.

The clerk entered the case into her computer system, which randomly assigns cases to judges with the aim of ensuring equal caseloads. As she began stamping the paperwork, Monagas noticed the initials VRW and, grabbing his BlackBerry, e-mailed the rest of the team.

The case, he wrote, had been assigned to the chief judge of the U.S. district court, Vaughn R. Walker. The team had worried that it would go to someone whom critics could easily label a San Francisco liberal, which would diminish a victory at the trial level. But Judge Walker was a Republican appointee, first nominated to the bench by President Ronald Reagan.

Walker’s nomination had been fiercely opposed by gay groups because of his representation of the U.S. Olympic Committee in a trademark suit that prevented a Bay Area group from calling its athletic competition the Gay Olympic Games. Walker, then in private practice, had managed to slap a lien
on the home of the group’s founder, who was at the time dying of AIDS, sparking outrage in the community. The groups had held up his nomination for so long that George H. W. Bush had become president by the time he won confirmation.

The Olympics case did not trouble Olson. Intellectual property was a complex area of the law, one that had nothing to do with where the judge might come down in a civil rights case. And on the bench, Walker had compiled a record as a bit of a maverick. While in some ways a law-and-order man, he had allowed reporters to watch all stages of the state’s lethal injection executions. His record suggested that he did not think voters should always have the final say: He had overturned a San Francisco voter-approved limit on ATM fees.

He was tough and blunt, suggesting to one struggling lawyer in open court that acting lessons might help her performance, and in another case calling the city’s attorney, chief of police, and district attorney on the carpet for failing to do enough to stop drug dealing and panhandling around his courthouse. He also had a libertarian streak that Olson particularly liked, having publicly called for the legalization of drugs.

“Very good draw—an independent thinker but widely respected,” Matt McGill, a thirty-five-year-old new partner at Gibson Dunn, wrote back.

The team’s stealth strategy worked: Word of the high-profile lawsuit did not leak before the California Supreme Court issued its decision on May 26. As expected, the court ruled that voters had properly amended the constitution to prohibit same-sex marriage. While the court let stand the eighteen thousand same-sex marriages that had already occurred, the window was now officially slammed shut to others. Protesters took to the streets, and within the gay community there was a sense of anguish that the end of the line had been reached.

But on the following day, there came a reed of hope.

On May 27, standing in front of an array of American flags at the Biltmore Hotel in Los Angeles, Olson and Boies went public with their effort, announcing at a press conference that they had filed a federal lawsuit challenging the
constitutionality of Proposition 8 on behalf of two same-sex couples. Flanking the lawyers were Chad and the freshly minted plaintiffs, Paul and Jeff and Kris and Sandy.

The week before the press conference, Monagas and another Gibson Dunn lawyer had escorted both couples to their local courthouses to file for a license. As expected, they were denied, giving them standing to sue. “
Unfortunately, gentlemen, at this time I can’t do that,” the clerk at the teller window in Beverly Hills told Paul and Jeff. “But should circumstances change, come back to us.”

Both had seized on her words, looking at one another. That’s just what they were there to do: Change the circumstances. “
We are going to plan your wedding in a couple of years—this is going to happen,” Olson promised them just before the start of the press conference.

Now, introducing the two couples, Olson declared that California voters, in amending the state constitution, had discriminated against gay men and lesbians simply because they had “the temerity to wish to express their love and commitment to one another by getting married.”

Boies, whom Olson had introduced to the plaintiffs just before the start of the press conference, had nearly missed the event altogether. Chad had gotten word from his office the day before that he would not be there but might be able to appear via satellite. Chad was furious. The whole point, he had argued, was for the two lawyers to stand side by side, the very picture of bipartisanship.

Somehow Boies had managed to get himself to California, and now he played up the odd-couple story line that had, as predicted, packed the room with reporters and would land the press conference on the front page of the
New York Times
the following day. “Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution,” he said.

But it was Olson whose raw emotion stole the show. “
These are our neighbors, coworkers, teachers, friends, and family,” he thundered. “Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.”

Watching the press conference from his computer at home in Brentwood, Rob Reiner turned to his wife. “I started crying,” he recalled. “We were saying, ‘Can you believe we’ve done this?’”

That afternoon, the clerk in San Francisco federal court, as was her habit, dropped the pile of complaints that had been assigned to Judge Walker over the last week on his desk. As he leisurely leafed through them, the name
Perry v. Schwarzenegger
jumped out.

The judge had not seen the press conference with Kris Perry and the other plaintiffs. Who was suing the governor of California? he wondered, plucking the case out of the pile.

It didn’t take more that a few paragraphs for him to grasp the significance.

“
Oh shit,” he thought.

The legal team’s initial quick scrub of Judge Walker’s record had, the lawyers believed, given them a pretty good handle on Walker’s judicial philosophy. But by now they knew it had overlooked a salient fact about his private life: The judge who was to preside over their case was himself gay.

But that was not what was giving the judge pause. He had hoped to retire by the end of the year, after the resolution of a slew of complicated national security cases involving the government’s counterterrorism surveillance policies currently pending before him. Unless he could find a way to get rid of
Perry v. Schwarzenegger,
that plan was about to blow up. The only legitimate way he could duck the case was to tell the court he had a conflict of interest, and that, Judge Walker quickly determined, wasn’t warranted in this case.

The sixty-five-year-old judge had long struggled with the question of when and how to come out. He had grown up in a rock-ribbed Republican town in rural Illinois, and graduated at the top of his class at Stanford Law School. He did not believe he could reach the pinnacle of his career if it were widely known that he was gay.

“You think that you can’t be yourself and live the life you want to live,” he said.

So, much like Chad, he had for years sublimated his sexuality to the rest of his life. He was handsome in a patrician way, with luminous green eyes, a dry wit, and a gentleman’s manners. Women liked him, and over the years he had some faux romances. He was not unhappy, but the pretending took a toll; not only was his own existence bound up in a lie, but he was stringing along decent women, whom he liked.

“When you are not able to be yourself and have the kind of relationship you consider fulfilling,” he said, “there’s this element of dishonesty and deception.”

It wasn’t until he was in his late thirties that he had his first relationship with a man. It had felt so different, so right, that he began considering coming out, to hell with the consequences. But then, in 1982, along came the Gay Olympics case. If he had said he was gay at that point, he felt he would have been vouching for his client, something he believed good lawyers should not do.

Soon after that came his nomination to the bench. Some of his friends told him that the FBI had asked them about his sexuality as part of his background check, but no one at the Reagan Justice Department ever confronted him directly. Given that there wasn’t a single “out” federal judge at the time, who knew how such a disclosure might complicate his nomination?

And so he had stayed mum, even having one more faux romance with a woman. They had fun, rode horses together. But when she broke things off after he kept putting off the question of marriage, he knew that she would be his last girlfriend. By his own, somewhat rueful admission, “I was no gay rights pioneer.”

Over the years, though, as he grew more comfortable on the bench, he began to live a little more openly. He stopped worrying about waking up to a newspaper article outing him. He could occasionally be found at the Lone Star Saloon, a gay bar. Then he fell in love. While he never made any big public announcement about his sexual orientation, he and his partner of many years, a physician, were often spotted together at social events and even court conferences.

Judges are required to disqualify themselves in cases where they have a nonfinancial but “substantial” interest in the outcome, or in cases where their “impartiality might reasonably be questioned.” Walker did not think he met that test for several reasons.