A Risky Proposal: Is it too soon to petition the Supreme Court on gay marriage?
by Margaret Talbot

18 January 2010

On January 11th, a remarkable legal case opens in a San Francisco courtroom—on its way, it seems almost certain, to the Supreme Court. Perry v. Schwarzenegger challenges the constitutionality of Proposition 8, the California referendum that, in November, 2008, overturned a state Supreme Court decision allowing same-sex couples to marry. Its lead lawyers are unlikely allies: Theodore B. Olson, the former solicitor general under President George W. Bush, and a prominent conservative; and David Boies, the Democratic trial lawyer who was his opposing counsel in Bush v. Gore. The two are mounting an ambitious case that pointedly circumvents the incremental, narrowly crafted legal gambits and the careful state-by-state strategy that leading gay-rights organizations have championed in the fight for marriage equality. The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.

Olson’s interest in this case has puzzled quite a few people. What’s in it for him? Is he sincere? Does he really think he can sway the current Court? But when I spoke with Olson, who is sixty-nine, in early December, he sounded confident and impassioned; the case clearly fascinated him both as an intellectual challenge and as a way to make history. “The Loving case was forty-two years ago,” he said, perched on the edge of his chair in the law offices of Gibson, Dunn & Crutcher, in Washington, D.C., where he is a partner. “It’s inconceivable to us these days to say that a couple of a different racial background can’t get married.” Olson wore a brightly striped shirt and a paisley tie, without a jacket; there was something folksy in his speech, which reminded me that he’s a Westerner, who grew up and was educated in Northern California. He said, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been involving a man and a woman,’ when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The Justices of the Supreme Court, Olson said, “are individuals who will consider this seriously, and give it good attention,” and he was optimistic that he could persuade them. (The losing side in San Francisco will likely appeal to the Ninth Circuit, and from there the case could proceed to the Supreme Court.) Olson’s self-assurance has a sound basis: he has argued fifty-six cases before the high court—he was one of the busiest lawyers before the Supreme Court bench last year—and prevailed in forty-four of them. Justices Sandra Day O’Connor and Anthony Kennedy attended his wedding three years ago, in Napa. Olson said that he wanted the gay-marriage case to be a “teaching opportunity, so people will listen to us talk about the importance of treating people with dignity and respect and equality and affection and love and to stop discriminating against people on the basis of sexual orientation.”

If the Perry case succeeds before the Supreme Court, it could mean that gay marriage would be permitted not only in California but in every state. And, if the Court recognized homosexuals as indistinguishable from heterosexuals for the purposes of marriage law, it would be hard, if not impossible, to uphold any other laws that discriminated against people on the basis of sexual orientation. However, a loss for Olson and Boies could be a major setback to the movement for marriage equality. Soon after Olson and Boies filed the case, last May, some leading gay-rights organizations—among them the A.C.L.U., Human Rights Campaign, Lambda Legal, and the National Center for Lesbian Rights—issued a statement condemning such efforts. The odds of success for a suit weren’t good, the groups said, because the “Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states.” The legal precedent that these groups were focussed on wasn’t Loving v. Virginia but, rather, Bowers v. Hardwick, the 1986 Supreme Court decision that stunned gay-rights advocates by upholding Georgia’s antiquated law against sodomy. It was seventeen years before the Court was willing to revisit the issue, in Lawrence v. Texas, though by then only thirteen states still had anti-sodomy statutes; this time, the Court overturned the laws, with a 6–3 vote and an acerbic dissent from Justice Antonin Scalia, who declared that the Court had aligned itself with the “homosexual agenda,” adding, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Seventeen years was a long time to wait. “A loss now may make it harder to go to court later,” the activists’ statement read. “It will take us a lot longer to get a good Supreme Court decision if the Court has to overrule itself.” Besides, the groups argued, “We lost the right to marry in California at the ballot box. That’s where we need to win it back.” Plenty of gay-marriage supporters agreed that it was smarter to wait until the movement had been successful in more states—and, possibly, the composition of the Supreme Court had shifted. (During the last year of a second Obama term, Scalia would be eighty-one.)

By August, the inevitability of the Olson-Boies suit had become clear, and several of the groups decided, grudgingly, to support the effort. But, when they petitioned to be intervenors in the suit, Olson and Boies opposed the move. Olson told me that their inclusion would have made the case too fragmented, and he wanted a “unified, controlled, consistent, on-message approach.” The presiding judge in the case, Vaughn Walker, sided with Olson and Boies, though he did allow the City of San Francisco to join their suit.

Nobody seems to be saying anymore, as some skeptics did initially, that Olson was deliberately setting up the gay-marriage movement for a fall. But doubts remain. William Eskridge, a professor of constitutional law at Yale University, and a prominent advocate of same-sex marriage, says that he is now “even more pessimistic” about the lawsuit’s chances, given that, in recent months, voters in Maine approved a referendum overturning a same-sex-marriage law, and the state senates of New York and New Jersey opted not to allow gay marriages. “A question that so evenly but intensely divides the country is not one that should be decided by the courts nationwide,” Eskridge said. “It’s the mirror image of the mistake the Bush Administration made by trying to introduce a constitutional amendment to define marriage as between a man and a woman.” He added, “It is just not something that this Supreme Court is going to deliver on at this point.” It’s a peculiar situation: while gay-rights activists advocate judicial restraint, solicitude for the popular will, and a gradual, state-centric approach, Ted Olson argues, in the urgent language of civil rights, for a sweeping, federal solution on their behalf.

At present, only five states—Massachusetts, Vermont, New Hampshire, Connecticut, and Iowa—permit gay couples to marry. (Five others, including California, have civil-union or domestic-partnership laws, which confer benefits and some official recognition without the title, and freighted significance, of marriage.) Since 1993, when the Supreme Court of Hawaii surprised just about everybody by finding that a state ban on gay marriage was discriminatory, twenty-nine states have passed amendments prohibiting gay marriage. (Most states had seen no need to be explicit on that point before.) And in 1996 Congress passed, and President Bill Clinton signed, the Defense of Marriage Act, which defined marriage as between a man and a woman. Seen from this angle, an incipient movement has been countered by a formidable backlash.

Yet there is a countervailing story, one that points to an inevitable shift toward acceptance of same-sex marriage. In 1993, few Americans had heard of same-sex marriage. Now some forty per cent of Americans support marriage for gay couples, and more than fifty per cent support civil unions. Many more people condone gay marriage today than condoned interracial marriage at the time of Loving v. Virginia, when only twenty per cent of Americans told Gallup that they approved of it.

Younger Americans endorse gay marriage at strikingly higher rates than older ones. According to a 2009 study underwritten by the Pew Charitable Trusts, fifty-eight per cent of Americans between the ages of eighteen and twenty-nine support gay marriage, compared to twenty-two per cent of Americans sixty-five and older. And the age divide cuts across some ideological lines as well. In a 2008 study, twenty-six per cent of white evangelicals under the age of thirty supported full marriage rights for same-sex couples, while only nine per cent of older evangelicals did.

Patrick Egan, a political scientist at New York University, and Nathaniel Persily, a law professor at Columbia University, who together have studied public opinion on gay rights, believe that in five years a majority of Americans will favor same-sex marriage—the result of generational replacement and what Persily calls “attitude adjustment.” When people change their mind on this issue, they tend to change it toward marriage equality. The more striking conversion stories of the past couple of years conform to this pattern: Bill Clinton saying that he was “wrong” in opposing gay marriage; Dick Cheney, whose daughter Mary is a lesbian with a partner and two children, declaring that “people ought to be free to enter into any kind of union they wish”; Jerry Sanders, the Republican mayor of San Diego, explaining tearfully at a press conference that he couldn’t look his lesbian daughter and others “in the face and tell them that their relationships . . . were any less meaningful than the marriage I share with my wife.”

The generational divide does not produce such results for all social issues. On abortion, for instance, younger Americans tend to be less supportive of unfettered rights. Nor does gay marriage seem to be a life-cycle issue—one that people become more conservative about as they age. People who went to high schools where there were gay-straight alliances, had friends who shared their coming-out stories, and grew up in a culture populated with gay celebrities simply feel more comfortable with the idea of same-sex couples marrying.

In some ways, though, this trend makes the Olson-Boies suit more complicated. Why push the Court far ahead of public opinion if public opinion is moving in that direction anyway? Even a victory for Olson and Boies could cut one of two ways. It could be like Brown v. Board of Education, which accelerated a gradual shift in public opinion. Or it could be like Roe v. Wade, in 1973, which interrupted a move toward abortion rights, and froze public opinion in two polarized camps. Olson is undaunted. “I have spent a fair amount of time reading Dr. King’s response to people who said, ‘People aren’t ready for this,’ ” he said. “His ‘Letter from a Birmingham Jail,’ one of the more moving documents in history, addresses this. If people are suffering and being hurt by discrimination, and their children and their families are . . . then who are we as lawyers to say, ‘Wait ten years’? ”

The case that became Perry v. Schwarzenegger would probably never have materialized had it not been for a young political strategist in Hollywood named Chad Griffin. On Election Night in November, 2008, Griffin was watching the returns at a San Francisco hotel with Gavin Newsom, the city’s mayor, who, in a short-lived experiment in 2004, had presided over same-sex marriages at City Hall; Newsom’s wife, Jennifer; Bruce Cohen, a filmmaker who produced “Milk” and “American Beauty” and is a high-profile gay activist in Hollywood; and Kristina Schake, Griffin’s business partner and best friend. Like many gay Democrats that night, Griffin was exultant about Barack Obama winning the Presidency but despondent that Proposition 8 had passed. Griffin recalls “going into a forty-eight-hour spiral of depression. All I could think about was the message this sent to the kid I used to be, growing up in Arkansas.”

But Griffin is not a guy who stays depressed—or at least merely depressed—for long. A week after the election, he was having lunch at the Polo Lounge, in the Beverly Hills Hotel, with Schake, discussing strategy with the actor and director Rob Reiner, for whom Griffin had formerly run a foundation, and Reiner’s wife, Michele. This was no idle exercise: Griffin had played a big role in the “No on 8” campaign, enlisting donations and support from prominent Californians, including the actor Brad Pitt, the real-estate heir and film producer Steve Bing, and the supermarket mogul Ron Burkle, who hosted a fund-raiser at his Los Angeles mansion. Griffin has orchestrated successful statewide ballot initiatives promoting clean energy and early-childhood education, and his clients include Maria Shriver, the First Lady of California. Still, nobody at the Polo Lounge lunch had alighted on what seemed like a winning plan until an acquaintance of Michele Reiner’s, Kate Moulene, stopped by the table, and heard what they were talking about. Later, Moulene told the Reiners that they should get in touch with her former brother-in-law, Ted Olson. You’d be surprised, Moulene told them—he’s with you on this.

Griffin related this story when we met in the restaurant at the Chateau Marmont hotel, one of those Hollywood landmarks fetishized by the young. Griffin is a slim thirty-six-year-old, and has close-cropped hair and nerdy-chic glasses. In the ostentatiously dim restaurant, the bright-white tennis shoes that he wore with his jeans and blue blazer were like runway lights guiding me to our table.

Griffin came out in his late twenties, and he is dating, but he does not have a partner. Laws like Proposition 8 repel him primarily because they are a form of licensed hostility. Ask him why “marriage equality”—the term he always uses—is so important, and the first thing he’s likely to tell you is how much higher the suicide and homelessness rates are for gay teen-agers than they are for their straight peers. “I’ll be fine if I can’t marry the person I love,” he told me. “I have a good life. I’m lucky. But there are consequences to inequality.”

The idea of a federal lawsuit had appealed to him immediately. He felt that it had been a strategic and moral mistake for the marriage-equality movement to count on ballot initiatives. “One’s fundamental constitutional rights should never be subject to a majority vote,” he said. “That’s what the Constitution is for. That’s what the courts are for.” He hadn’t given up on politics: it was important to elect people who supported gay marriage and to vote out politicians who didn’t. The movement, he said, had to “create more fear of the consequences” for Democratic and Republican politicians alike. But he was through with ballot initiatives: they were the strategy of the anti-gay lobby, and fighting them “forces us to play on the opposition’s turf.” Griffin’s side had spent some sixty million dollars campaigning against Proposition 8. “What we need is to aggressively execute our own strategy,” he said. “The only way you win a battle of this size is always playing on the offensive.”

Griffin is fond of saying, “I was born in a war room,” by which he means that his first job, at the age of nineteen, was working on Bill Clinton’s 1992 Presidential campaign. He was raised in Hope, Arkansas, and later in Arkadelphia, by a family of schoolteachers, principals, and counsellors. For a while, an aunt was married to a state representative, and Griffin loved travelling around with him, handing out matchbooks to prospective voters. He had earned less than a year’s worth of credits at Ouachita Baptist University when Clinton’s campaign took off, and he became a full-time volunteer. “If my governor hadn’t been running for President at that moment, I might be a manager at Wal-Mart today,” Griffin said. “I was Employee of the Month there once.” Instead, he took a job as a staff assistant in the White House press office, under Dee Dee Myers. He was one of the youngest staffers ever to work in the West Wing.

Griffin met Rob Reiner when he was assigned to show him around the White House; Reiner was getting ready to direct “The American President” at the time. After finishing college, at Georgetown, Griffin moved West to work for Reiner, running an organization devoted to health care and preschool for all children under five. But the Clinton “war room” remained Griffin’s model of how to make noise in the world. “Every single hour was strategic,” he recalled. “I was this little freakin’ kid hanging around watching Paul Begala and James Carville and George Stephanopoulos. They did not let the opposition gain an inch, and if it did they knocked it down with firepower.” As Griffin saw it, “Our movement has been satisfied with small steps, but we can no longer be afraid of big steps.”

He spoke with Olson on the phone, and after that they met in Washington. “At first, I was in a bit of shock that I was talking to this person I’d loved to hate from a distance,” Griffin said of Olson. “This, after all, was the man who had given us eight years of Bush.” Still, he found a receptive listener in Olson, who had demurred when he was approached about defending Proposition 8 in the California Supreme Court. (Kenneth Starr took the job.) “I wouldn’t want to be on that side,” Olson told me. He had some history of opposing discrimination against gays—while working in the Reagan Justice Department, he wrote a legal opinion arguing that an openly gay prosecutor could not be denied a promotion on the basis of his sexual orientation—but he had never litigated anything related to the subject. Indeed, several of the cases he’d argued before the Supreme Court would have put him at odds with some of the civil-rights advocates he was now loosely allied with: on behalf of the State of Virginia, he argued against allowing women into the Virginia Military Institute; during the Reagan Administration, he led an assault against affirmative-action “set-aside” programs.

In deciding whether to take the case, Olson talked with his wife, a tax lawyer—and a Democrat—named Lady Booth Olson. (Olson’s third wife, the conservative commentator Barbara Olson, was killed on September 11, 2001, in the plane that struck the Pentagon.) He also consulted with his mother, and with his son and daughter, who are both in their forties. The more he considered the idea, the more he thought that “this was the right side to be on”; besides, it would be “an intellectually challenging venture.”

Griffin and Olson agreed that federal lawsuits were inevitably going to be filed on this issue, and that gave them a sense of urgency. As Olson told me, “There are millions of people in this country who would like to be married—in California, in Arkansas, wherever. Some couple is going to go to some lawyer and that lawyer is going to bring the case. And that case could be the case that goes to the Supreme Court. So, if there’s going to be a case, let it be us. Because we will staff it—we’ve got fifteen, twenty lawyers working on this case and we have the resources to do it, and we have the experience in the Supreme Court.” Olson went on, “We’ve all seen people bringing cases in the Supreme Court who don’t know what they’re doing.” Proposition 8 was the basis for a shrewd lawsuit, he reasoned, because it had created three unequal classes of people in California: “The eighteen thousand or so gay couples who were already married got to remain married. But if they get divorced they can’t get remarried! Is that irrational, or what? Then you have heterosexual couples who can get married, and gays and lesbians who didn’t get married before Prop. 8 and now can’t.”

For the case, Griffin wanted, as he put it, “the lawyers Microsoft is going to want, not the lawyers who are going to do it pro bono.” And for that he needed to raise money. He formed a foundation, the American Foundation for Equal Rights, whose logo evokes the American flag, not a rainbow. He and Schake sit on the board, along with the Reiners, Bruce Cohen, and Dustin Lance Black, the screenwriter of “Milk,” the 2008 bio-pic about Harvey Milk. In four weeks last spring, Griffin told me, he raised “millions of dollars”—“all from individual donors who have a history of caring about this issue. Less than a dozen. Gay and straight.”

Olson believed, as he recalled, “that it would be very important to balance my reputation as a conservative . . . with someone who had a reputation as being on the other side of the political spectrum.” It would send a powerful message of bipartisanship, Olson felt, and “allay people’s suspicions of ‘What in the world is Ted Olson doing?’ ” During a conference call with Griffin, Reiner, and others, Olson suggested David Boies. Though Boies had lost to Olson in Bush v. Gore, his track record as a litigator is formidable—he is known as a fierce cross-examiner. In the last few years, he has successfully defended Nascar against antitrust charges, won for American Express a record four-billion-dollar settlement from other credit-card companies, and represented the filmmaker Michael Moore when the Treasury Department opened an investigation of a trip that Moore had taken to Cuba. Olson had become friends with Boies, and thought he was “fun to work with.” Griffin and the others were enthusiastic about Boies, and Olson recalls that when he approached him “there wasn’t a moment’s hesitation.”

Boies told me that the issue had been on his mind ever since 2004, when San Francisco had its brief experiment with gay marriage: “I remember being struck by all those powerful images of people from all over the country flying to San Francisco and lining up to get marriage licenses. If it was something that was really so important to people, it was really something that needed to be addressed.”

Meanwhile, Griffin had begun discreetly looking around for potential plaintiffs—same-sex couples who wanted to get married in California but hadn’t done so in the six-month window between the state Supreme Court decision and the passing of Proposition 8. The plaintiffs needed to be willing to be the public faces for a court case that could take years to resolve, and that many gay activists considered unwise. It isn’t easy to find the right plaintiffs for a high-profile constitutional case. There have been plaintiffs before the Supreme Court who made moving and stalwart examples of the principle they were upholding, and plaintiffs who faltered on the job. Mildred and Richard Loving, the interracial couple, were close to ideal. They were blessed with a name so perfectly suited to their case that, had they been fictional characters, you would never have believed it. And they were not professional activists. He was a white bricklayer and she was a homemaker of African-American and Native American descent, and all they wanted was to be married and to live in Virginia, near their families. “Tell the Court I love my wife,” Richard Loving said to one of his lawyers. “It is just unfair that I can’t live with her in Virginia.”

Though it doesn’t matter from a legal point of view what happens to plaintiffs after their case is resolved, their post-Supreme Court life can affect how people view their cause. The Lovings, who had three children, remained married until Richard Loving died, in a car accident, in 1975. They seldom gave interviews, though on the fortieth anniversary of the decision Mildred Loving issued a statement: “Not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.”

Norma McCorvey, who later revealed herself as the Jane Roe in Roe v. Wade, was a more problematic plaintiff. A former carnival worker who’d had an unusually rough life, McCorvey was twenty-one and pregnant with her third unplanned child when she became a plaintiff for Roe. She never had the abortion she’d been seeking—her case was decided too late—and she gave the baby up for adoption. In the nineties, she renounced her role in Roe, saying she’d been led astray by her crusading young lawyers, and began to work for the anti-abortion group Operation Rescue. In 2003, she even petitioned a federal district court to overturn Roe. McCorvey was the sort of plaintiff who should have been better vetted, and whose unhappy trajectory became a metaphor for ambivalence about abortion itself.

In a case about marriage rights, lawyers want to find couples who are likely to stay together—not always an easy prediction to make, especially given the stresses of the case. As Mary Bonauto, the lawyer who brought the 2003 suit that legalized same-sex marriage in Massachusetts, told me, “You want people who can withstand the rigors of a multiyear process.” You don’t need “picture-perfect people,” Bonauto said, but you do need the “kind of people you wouldn’t mind sitting in a room and chatting with, no matter who you are. We are always concerned about people who are overeager to be plaintiffs, and people who are huge activists.” Ideally, you want people who are just “living their lives” but are running up against a clearly defined problem because of a misguided law. You don’t want glib types who are too fluent in movement jargon, but you do want people who can talk easily in a courtroom or to reporters, without stumbling into reality-TV-style oversharing about their romantic life.

One doesn’t advertise for plaintiffs in a case like this. Instead, Griffin got in touch with people he knew, or knew of. As he put it, “I’m gay. I live in California. I know a lot of gay couples.” One day, he was speaking on the phone with Kris Perry, a woman he and Reiner had known for years, because she was active in children’s-policy debates and was now the executive director of First 5, a state agency that promotes health and education for young kids. Perry and her partner, Sandy Stier, a tech-support manager who works for Alameda County, live in Berkeley, and are raising four boys, ranging in age from fifteen to twenty-one. Griffin asked Perry if she might be interested in working on a big project to restore marriage equality. As Perry recently recalled to me, she wasn’t sure until he explained that it was a federal lawsuit. “Oh,” she recalls thinking. “You mean there might be a permanent solution? We get to talk about this in a nonpolitical way? Now I’m really interested.” As Perry sees it, “A lot of people out there have gay-marriage fatigue. Sandy and I even have gay-marriage fatigue! With every political defeat, there is a certain level of humiliation.” Perry and Stier arranged to come home early from work one day to discuss the prospect with each other, and with each of their children. One of the boys asked if their case was kind of like Brown v. Board of Education, which he was studying in school. Yes, they told him. Perry and Stier figured that they were in a better position than a lot of other committed couples to do something like this. “We’re in stable parts of our careers,” Perry said. “Our children aren’t really young, we live in a really liberal place, and we weren’t worried about a lot of rejection from neighbors and friends.”

Griffin also approached Paul Katami and Jeff Zarrillo, a couple in the San Fernando Valley, whom he knew through mutual friends. Katami, who is a fitness expert and a consultant, and Zarrillo, who works for a chain of movie theatres, are both in their late thirties, have been together for almost nine years, and are good-looking, polished, and articulate. They were the kind of obviously well-suited couple whom friends and family felt comfortable nudging to just get married already, and they were both severely disappointed when Proposition 8 foreclosed the possibility. The idea that marriage equality “could take a generation if we continue to go state by state,” as Zarrillo said, frustrated them. When Griffin told them about the lawsuit, they liked the idea of being involved in something that “put a respectable face to the fight,” Katami said. “I didn’t want to just come out with my arms swinging.”

In San Francisco, Olson and Boies will be arguing that marriage—and, by extension, the right to marry the person you choose—is a fundamental right. The first part isn’t so difficult. Marriage is one of the rights—along with, for instance, the right to vote, to travel from state to state, and to bear children—that the Court has repeatedly elaborated on and endorsed, though they are not stipulated in the Constitution. In 1974, for example, the Court declared that “the freedom of personal choice in matters of marriage and family is one of the liberties protected by the Due Process clause,” and in 1987 it affirmed the rights of prison inmates to the emotional support, “spiritual significance,” public commitment, and expectation of consummation that come with marriage. Whether these decisions necessarily entail the right to marry a person of the same sex is another matter. Certainly, it could be construed that way, and needn’t mean, as opponents of same-sex marriage sometimes claim, that the Court would then have to allow a person to marry a child, or his sister, or his dog. Constitutional rights are not absolute—free speech does not extend to obscenity, for instance—and since marriage is a contractual relationship both parties must be in a legal and mental position to agree to it. And one could argue that legitimate interests allow the state to ban incestuous and polygamous marriages, for example. (Then again, opponents of same-sex marriage argue that legitimate moral interests justify banning gay unions.)

Olson and Boies must also convince the Court that Proposition 8 violates the Constitution’s Equal Protection clause by assigning gay or lesbian citizens a different, lesser status with regard to marriage rights. When the Supreme Court decides if a law violates the Equal Protection clause, it engages in one of three levels of scrutiny: “rational basis,” intermediate, or strict. If the court uses strict scrutiny, the law in question will be struck down unless it can be shown to have been “narrowly tailored to further a compelling interest” of the state. (It was by subjecting laws against interracial marriage to strict scrutiny that the Court ruled, unanimously, in Loving v. Virginia.) Strict scrutiny is applied only when a law either interferes with a fundamental right or deals with a so-called “suspect” classification: religion, race, ethnicity, or national origin.

If Olson and Boies can convince the Court that the fundamental right of marriage includes the right to marry someone of the same sex, that will get them a long way toward victory. They will also try to convince the Court that sexual orientation is a suspect classification, and that gays and lesbians have been subject to a history of discrimination, are defined by an immutable characteristic that “bears no relation to their ability to perform or contribute to society,” and are “politically powerless,” in this case, to win marriage equality. This argument is trickier. Though gays and lesbians lost at the polls in California, can they really be said to be politically powerless? Just how immutable homosexuality is remains a hotly contested question. And the Court has never before defined sexual orientation as a suspect classification.

Even if the Court declined to apply strict scrutiny, Boies told me, he could still argue that Proposition 8 fails the much more commonly applied “rational basis” scrutiny. Under that test, a law is considered valid as long as it is logically related to a plausible state interest. But, Boies says, “There is overwhelming evidence of damage to gay and lesbian couples who cannot marry—and to their children—and no evidence that permitting gays to marry damages heterosexual couples. The idea that heterosexual couples won’t get married because their gay neighbors can is ridiculous. If you’re going to deprive citizens of basic rights, even under a rational-basis test, you have to show that it’s of benefit to somebody.” Olson and Boies will aim to show that the motivation for Proposition 8 could only have been animus—a rationale that the Court does not look kindly on. In the 1996 case Romer v. Evans, for instance, it ruled that a Colorado amendment that excluded gays and lesbians from anti-discrimination laws was motivated by anti-gay feeling, and was therefore unconstitutional.

So far, Judge Walker, who was appointed to the federal bench in 1989, by George H. W. Bush, has made it clear that he has an eye toward both the high court and history. He has allowed the trial to be videotaped, and plans to let the proceedings be uploaded to YouTube each evening. (Boies and Olson supported the arrangement; their opposing counsel argued vigorously against it.) Walker could have relied primarily on legal filings to make his decision, but instead has opted to admit oral testimony on everything from the history of marriage to the history of anti-gay discrimination, from the fitness of gays and lesbians as parents to the definition of homosexuality. Boies and Olson are happy with this expansive approach. They are eager to cross-examine witnesses. And to help establish animus they plan to introduce as evidence material from the “Yes on 8” campaign that lawyers for the opposing side consider confidential. Among other documents, they have obtained a fund-raising letter from a pro-8 activist named Bill Tam, which warned that if Proposition 8 lost “other states would fall into Satan’s hand,” and “every child, when growing up, would fantasize marrying someone of the same sex.”

The legal team on the other side will be led by Charles Cooper, a Washington lawyer who succeeded Olson as assistant attorney general under Reagan, and by the Alliance Defense Fund, a sort of Christian-conservative counterpart of the A.C.L.U. (The State of California, in the person of Governor Arnold Schwarzenegger, declined to defend Proposition 8, leaving it to private lawyers to fill in.) Cooper will argue that California indeed has a rational interest in upholding “procreative marriage.” As Cooper told the Judge at a pretrial hearing, in October, the traditional definition of marriage has “prevailed in every civilized society throughout the ages” and “still prevails everywhere in the world, with the exception of five American states, and seven foreign countries.” (Since then, Portugal has become the eighth country to legalize gay marriage.) With Proposition 8, Cooper said, California voters merely defended that tradition. A court, therefore, “should not lightly conclude that everyone who held this belief was irrational, ignorant, or bigoted.” At the heart of the case “are two competing conceptions of the institution of marriage, and of its central purpose,” Cooper declared. “We say that the central and the defining purpose of marriage is to channel naturally procreative sexual activity between men and women into stable, enduring unions for the sake of begetting, nurturing, and raising the next generation. Plaintiffs say that the central and constitutionally mandated purpose of marriage is simply to provide formal government recognition to loving, committed relationships.”

Already, this procreative definition of marriage has led to some puzzled questioning by Judge Walker, and some peculiar exchanges, like this one, at the pretrial hearing:



THE COURT: The last marriage that I performed, Mr. Cooper, involved a groom who was ninety-five, and the bride was eighty-three. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?
MR. COOPER: No, your Honor, you weren’t. Of course, you didn’t.
THE COURT: And I might say it was a very happy relationship.
MR. COOPER: I rejoice to hear that.


Same-sex couples “do not naturally procreate,” Cooper persisted. “That is the natural outcome of sexual activity between opposite-sex couples.”

“Fair enough, but procreation doesn’t require marriage,” replied Judge Walker, who noted that he’d heard on the radio that morning that forty per cent—“can this be right?”—of pregnancies occur in unwed females. Yes, Cooper allowed, that was a sad statistic, but the state still discouraged sexual activity among people who are not married, as it should, because it had a “vital interest” in “promoting responsible procreation.” The “body politic ultimately has to take responsibility or shoulder some of the burden”—often through public assistance—of raising children when their parents didn’t “take that responsibility properly.” (He did not address whether gays and lesbians were any more likely to shirk their responsibility, perhaps because many gay and lesbian parents go to great lengths to have children in the first place.)

The case has involved some unexpected staking out of positions—as though both sides had been reading up on the work of postmodern academics and come to opposite conclusions. Olson’s team will argue that marriage is a malleable institution, shaped by shifting notions of gender, race, and property, while sexual orientation is innate. And the defendants will likely argue that marriage is immutable, and sexual orientation is a performative act, a chosen identity.

Nan Hunter, a law professor at Georgetown University, is skeptical about Olson and Boies’s chances. “As a purely formal matter, one could argue that Olson and Boies are correct,” Hunter said. “But invalidating roughly forty state laws that define marriage as between a man and a woman is an awfully heavy lift for the Supreme Court, and especially for Justices who take a limited role of the scope for the judiciary.” She added, “I fear that their strategy is: Ted Olson will speak, Anthony Kennedy will listen, and the earth will move. I hope I’m wrong about this—they’re excellent lawyers—but I fear, frankly, that there’s more ego than analysis in that.”

Proposition 8 won by only four percentage points, and some believe that if the opposing side had waged a better campaign California might still have gay marriage. Three statewide organizations—Restore Equality 2010, the Courage Campaign, and Equality California—are now leading efforts to bring Proposition 8 back onto the ballot and repeal it. (The latter two groups are aiming for 2012, because their leadership thinks that 2010 is premature, and that more young people will vote in a Presidential-election year.) Whatever happens with the Perry lawsuit, these groups are waging a campaign to persuade reluctant Californians to embrace gay marriage, and they are basing their approach on the power of personal stories.

After Proposition 8 passed, many gays and lesbians complained that the ads that political consultants had come up with for their side did not show any couples. They did not counter the other side’s claim that gay marriage would now be taught in schools with their own images of gay families who would be hurt by the denial of marriage rights. The ads were not visceral or urgent. They didn’t show enough love. Instead, they were abstract and a little arid, if sometimes wry. One, based on the “Mac vs. P.C.” ads, featured a portly, middle-aged guy in a brown suit, who represented “Yes on 8”; a young hipster in skinny jeans was “No on 8.” Another showed a woman talking to her friend about attending her lesbian niece’s wedding, but never showed the wedding pictures (or the niece).

Eugene Hedlund, a media consultant in Southern California who runs a political-action committee called TruthAndHope.org, and who is working on new ads for the gay-marriage side, says of the last media campaign, “It was too intellectual. And though that might have worked for some people, it wasn’t a strong enough argument against ‘They want our children.’ I remember thinking, Where are the ads with the couples? . . . How can you have a campaign based on equality and then hide what it would look like? Can you send a clearer message that there is something to hide? This time around, we’d better be serious about getting emotional.”

Many gay-rights activists seem determined to be more emotional and direct this time. Recent polling suggests that people who know someone who is gay are more likely to support same-sex marriage, and one of the goals of the new campaign is to simulate the experience of knowing someone who is gay. Equality California has produced new ads, one of which ran during the Miss California U.S.A. pageant, in late November, showing gay families talking about the homely details of their lives. In one, a teen-age girl and her two moms sit in a sunlit back yard, laughing about the daughter’s quest for the perfect prom dress. At one point, the girl recalls telling her moms, “If you can’t get legally married, I don’t want to be married.” She adds, “It’s just not fair. It’s love either way.”

TruthAndHope is working on a series of ads that will be similar to “Local Voices for Obama,” which it produced during the Presidential campaign. Those ads, which aired in “red” areas of swing states, were microtargeted, featuring local people—an auto-repair shop owner in Joplin, Missouri; a marine veteran in Columbus, Ohio—explaining why they were supporting Obama. The ads had high production values, but they were unscripted and had a warm, conversational feel. The “Local Voices” campaign won a Pollie—the Oscar of political advertising.

Hedlund now plans to make ads in support of gay marriage that are similarly microtargeted: one might be aimed at Latinos in San Diego, and another at churchgoing African-Americans in South L.A. One ad that he’s put together, titled “Family Values,” features a man named Frank Reifsnyder, who is a retired naval submarine commander and a devout Catholic. The ad begins with him speaking of his and his wife’s long-held dream of grandchildren, and of their happiness when twins came along. “Watching our son become a wonderful father has been an amazing gift,” he says. Reifsnyder then explains that his son is gay and has a husband, and that the two of them are raising their children with “strong morals, compassion, and love.” The ad, which has the intimacy of a home movie, shows the babies being baptized; their two fathers walking down a tree-lined street, with the kids on their shoulders; and the whole family, including the grandparents, saying grace before dinner. The montage ends with Reifsnyder saying, “It may not be the family we had imagined, but it is the family we have—and love.” For Hedlund, that’s a seductive sentiment, because “nobody gets quite the family they imagine.”

This fall, the spot was tested by H.C.D., a New Jersey-based advertising-research firm, and Republicans were surprisingly receptive: fifty-five per cent of them called the ad “effective,” even though only twenty-nine per cent of them supported gay marriage. Glenn Kessler, the head of research for H.C.D., told me, “That suggests a useful dissonance.” The ad didn’t change many minds after one viewing, he noted, but the reaction “suggests that if you tell that kind of story over and over you could get some movement.” Hedlund said, “TV allows us to have a silent conversation with people who may be having a conversation within themselves already. Maybe they have family in the room that they can’t even share their doubts with. And what we’re doing is giving them permission to have those doubts.”

In door-to-door canvassing, same-sex-marriage advocates are having those conversations out loud. Marc Solomon, who directs the marriage initiative for Equality California, told me, “It’s important for more people to see that we’re not some abstraction. We’re not necessarily the gays in West Hollywood or the Castro but the gays around the corner in Bakersfield or Fresno—maybe the couple you’ve seen walking their dog or watering their lawn. People change their minds on this issue with personal conversation, especially with people who are local.”

Since June, Equality California has been sending canvassers to communities that voted for Proposition 8, and reports that it is persuading nearly a quarter of the people its volunteers meet. The weekend before Thanksgiving, I went out with a team of canvassers in Orange County, an area that, with its history as a headquarters for the aerospace industry and as a destination for whites fleeing Los Angeles, tends to be conservative. Fifteen people, most of them in their twenties, met at a park in Huntington Beach. Younger gays and lesbians tend to be the most motivated on the marriage issue. As Patrick Egan, the N.Y.U. political scientist, says, they are “not as concerned about freedom from discrimination as they are about freedom to be like everyone else.” Egan calls their stance “assimilationist.”

A picnic table was piled with clipboards, bottled water, and doughnut boxes. Two young field organizers, Elizabeth Aversa and Daniel Shad, stood in front of an easel draped with big sheets of paper, each marked to resemble smaller sheets that canvassers had on their clipboards. One big sheet said, in Magic Marker, “Rank ’em: Supportive, Undecided, or Opposed.” Another showed the rankings you were supposed to make after conversing with someone: “Volunteer/donor,” “Supportive,” “Undecided,” “Opposed,” or “Unpersuadable.” Canvassers were instructed to share personal stories—to either come out as gay or talk about someone they cared for who was hurt by Proposition 8. “Tell details, names, years together,” another sheet instructed. “Be emotional and memorable.”

Aversa was an energetic twenty-seven-year-old who had short auburn hair, and who wore gray eyeshadow, jeans, and a hoodie. “The emotional part is really important,” she said. “A year from now, we want people to remember they had this conversation with you, and how sad you were not to be able to marry.” Aversa pointed to a young woman in the group. “Jamie here is engaged to her girlfriend.” The group clapped. “She could talk to people about her hopes for her marriage.” Aversa said to look for “people’s faces softening” as you spoke to them: some would really listen to you, and you’d have a sense of “peeling back layers.”

Aversa and Shad reminded the canvassers to remove their sunglasses when approaching people’s doors—“eye contact is key.” And they told them to ask a lot of questions, because sometimes when people were asked to explain why they believed, for example, that gay marriage would hurt children they discovered that they hadn’t rigorously examined their views. As the crowd dispersed, she called out, “When in doubt, come out! Tell those stories!”

I was assigned to a team with Shad, a low-key guy who wore sandals and baggy shorts. We drove to a neighborhood of neatly kept ranch-style houses, where cactuses and birds-of-paradise grew on freshly mowed lawns. Nearly everybody had set out some sort of harvest-themed decoration, and a lot of the houses displayed American flags.

Only one person was supposed to go to the door at a time—two people on your doorstep talking about their sexuality and the meaning of marriage was thought to be a little overbearing—so I waited on the sidewalk while Shad knocked on the first door. A woman who looked to be in her sixties, with a patchwork apron tied around her waist, and a voice that suggested origins in Brooklyn or Queens, appeared on her porch. When Shad told her why he was there, she said, “I’m very opposed—and I’m very passionate about it.”

“I’m gay,” Shad started in, but the woman cut him off.

“That’s fine that you’re doin’ what you’re doin’, but that’s your choice.”

Shad replied, “It was never a choice for me.”

The woman wiped her hands on her apron, and said, “I have grandchildren, and I’ve told them, ‘None of you are going to be gay, and if any of you are I’m going to do everything I can to ungay you.’ ”

Back on the sidewalk, Shad said, “I’m going to mark her ‘Unpersuadable.’ ”

Next, we knocked on the door of a man named Peter, who also looked to be in his sixties. After Shad mentioned the words “gay” and “marriage,” we heard Peter’s wife hiss, “Don’t talk to those people!” Peter rolled his eyes slightly, stepped out onto the porch, and shut the door behind him. A wiry guy in a blue turtleneck and suède moccasins, he was equable but stubborn. Shad made his overture: “I’m gay, and when Prop. 8 passed, last year, it was a huge slap in the face for me. I felt that my friends and neighbors were saying that my love is not the same as theirs.”

Peter was silent, then said, “I don’t believe it is.”

Shad asked him if he had any gay friends. Peter said that he did. When Shad asked him to name one of them, however, Peter declined—it was none of his business.

If the law changed, Peter said, he’d accept it, but the idea that marriage was between one man and one woman was “a foundation of civilization.” We could hear Peter’s wife grumbling behind the kitchen window. “They’re not leaving,” he called to her. Then, to us: “A hundred years from now, people will probably accept it.”

Shad smiled: “It’s going to be sooner than that.”

“Yes,” Peter said. “You bring it up again and again and again, and in a few generations you’ll probably get it.”

Shad tried a different tack: “The marriage you share with your wife, I’m sure a lot of great things have come out of that—”

Peter’s wife slammed the kitchen window, and Peter sighed.

At another house, an Asian woman in a Berkeley sweatshirt opened the door a crack. She turned to say something to a small child inside the house and then spoke to Shad as though he were a small child himself. “Of course I voted for Prop. 8!” she said. “Marriage is between a man and a woman.”

“You’re married, I assume,” Shad said. “Why did you marry?”

The point of asking that question, Shad told me, is to get people to acknowledge that most people don’t marry for the benefits, and that domestic partnerships are therefore insufficient. The word “marriage” matters because it seems to exalt love, whereas “domestic partnership” does not. The institution of marriage, shorn of its utility for the inheritance of property and the assurance of legitimate children, now seems more important for the ratification it bestows on our relationships, for its sacralization of love. Shad’s provocation did not engage this woman, however: she slammed the door. I almost sympathized with her. Who really wants to answer such a personal question, posed by a stranger on your doorstep?

A few conversations went more smoothly. Shad met a seventy-four-year-old man who was “ambivalent” about same-sex marriage—but he had a gay son, and after they spoke amiably for several minutes the man promised to think more about the subject. The personal connection was the key, Shad told me: “I wouldn’t have reached him if he didn’t have a gay son.”

Perry v. Schwarzenegger is not the only federal lawsuit for gay marriage. Another one, Gill v. Office of Personnel Management, is thought by some scholars to stand a better chance of success, though it has been overshadowed by Olson and Boies’s effort. Gill was filed last March, by a public-interest law firm, Gay & Lesbian Advocates & Defenders (GLAD), in Boston. One of the GLAD lawyers on the case is Mary Bonauto—the attorney who successfully argued the case that legalized same-sex marriage in Massachusetts. (That case is heralded by many gay activists but is seen by others as a cautionary tale: the ruling, announced in the run-up to the 2004 Presidential election, served as a rallying cry for evangelical voters, and may have helped Bush win a second term.) Gill is not the damn-the-torpedoes case that Perry is. It challenges a section of the Defense Against Marriage Act which prevents same-sex couples from receiving the many benefits accorded to married couples at the federal level—from joint tax filing to health insurance for federal employees’ families—even though in the state of Massachusetts those couples are lawfully married. Gill insists not on the constitutionality of same-sex marriage but on the unconstitutionality of denying federal benefits to a class of citizens whose marriages are recognized by the state.

“This is not going to be a case that results in more people getting married if we win,” Bonauto told me when I met with her at her offices, across from the Boston Common. A conservative dresser, she has the low, soothingly intelligent voice of a National Public Radio announcer. “But it very clearly presses on the federal government’s double standard,” she added. “Americans don’t like double standards. The federal government recognizes all kinds of marriages once they’re licensed by the state except the ones for gay people. We’re in the legal mainstream here, when you look at cases like Romer and Lawrence, where the federal courts have condemned gay exceptionalism. And that’s what this is.” GLAD could have brought the suit that Olson and Boies did but feared “pushing the ball too far and potentially having a setback.” She added, “We are wishing the Perry folks the absolute best. That said, we can’t help but have concerns about the timing.”

As in the Perry case, the plaintiffs in Gill make for an all-American picture. Bonauto’s co-counsel, Gary Buseck, told me, “We want people the American public can identify with.” From the beginning, Buseck had a vision. “I thought it would be great to have a postal worker,” he said. “Everybody knows a postal worker.” In fact, the lead plaintiff is Nancy Gill, who has been a postal clerk in Massachusetts for twenty-two years. Among the other plaintiffs are Mary Ritchie, a state police sergeant, whose wife, Kathy Bush, left her job at The New England Journal of Medicine to stay at home with their eight- and ten-year-old boys; Bush spends a lot of time volunteering at their school, in a pleasant suburb of Boston. When I visited the family in early December, the living room was Rockwellian: a twinkling Christmas tree, poinsettias on the hearth, and a copy of Martha Stewart Living on the coffee table, along with plates of little cookies.

If Ritchie were to be killed in the line of duty, they explained to me, Bush would not be entitled to the federal benefits for spouses of public-safety officers. Bush said, “It’s just so odd that one marriage can be treated one way, and another another way.”

Two other plaintiffs are Al Koski, a retired Social Security claims representative, and his husband, Jim Fitzgerald, who works at a rehab clinic. They’ve been together for thirty-four years, but the federal government does not allow Fitzgerald to be the beneficiary of Koski’s pension or to be covered by his health-insurance plan. Koski is a hearty guy with a broad Massachusetts accent, who plays bridge with other retired folks on the Cape, where he and Fitzgerald live. When I met them, they told me the story of how they had informed Fitzgerald’s Irish-Catholic mother about their participation in the lawsuit. They hadn’t revealed to her that they were married, and now they had to tell her they’d be in the news as a married couple. She’s virtually deaf, so they typed up a letter and gave it to her to read. Her response will surely be quoted in the courtroom: “I can’t believe you didn’t tell me before you’d gone before the justice of the peace. Congratulations!”

As seemingly modest as the Gill case is, it could help create a favorable climate for more ambitious challenges, including the Perry case. Thomas Keck, a political-science professor at Syracuse University who is an expert on the Supreme Court, told me, “I don’t think any of us can predict how it’s all going to turn out. But Gill is a very well-designed case, a well-targeted challenge that has a good chance of winning, and that broader challenges could be built on. If it wins, in a practical sense we would have federally recognized same-sex marriage. At that point, it would be much harder to defend the federal government’s refusal to recognize same-sex marriage in other parts of the country.” Gill could also go to the Supreme Court, and if it makes it there first, and succeeds, it could help Olson and Boies. As Gary Buseck told me, “I haven’t said this out loud even to myself before, but, to the extent that either of these cases is going to get to the Supreme Court, I think it would be better if our case got there first.” (Predicting the trajectory of court cases is, of course, a futile endeavor.) He added, “You have to approach the Supreme Court in an incremental way.” For Buseck, this, and not the “Letter from a Birmingham Jail,” was the relevant lesson from the civil-rights movement. He recalled that the N.A.A.C.P. Legal Defense and Educational Fund had recognized it would be a stretch to try to desegregate the public schools first—it would be too sweeping and provocative an effort. “So they first won cases about a law school and a university, to make it inevitable that when they brought the case that became Brown the chances of winning would be so much better.”

Maybe the Perry case stands a better chance than skeptics are willing to admit, given that public opinion is more in favor of gay marriage than it was of interracial marriage when the Court ruled in Loving. But Bonauto notes that in 1967 only sixteen states, most of them in the South, had anti-miscegenation laws, whereas thirty-nine states now have laws against gay marriage. A more aggressive strategist like Chad Griffin would counter that state laws are often anachronistic: South Carolina and Alabama didn’t overturn anti-miscegenation laws until 1998 and 2000, respectively. And who would make a serious argument that the Court should have postponed a decision on Loving until the Southern states were in line with it?

To win before the Supreme Court, Olson and Boies need only five votes. Assume that they could count on the four liberal Justices: Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and John Paul Stevens. One might read Justice Kennedy’s sympathetic opinions in Romer v. Evans, the discrimination-laws case, and Lawrence v. Texas, the sodomy-law case, as an indication that he would be more open to recognizing gay marriage than his otherwise conservative leanings would suggest. (In his Lawrence opinion, Kennedy argued, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”) And though Kennedy’s votes with the conservative bloc include one, in 1989, upholding the death penalty for juveniles, he has changed his mind in response to evolving views on a controversial subject: in 2005, Kennedy wrote the opinion that overturned the death penalty for juveniles, arguing that a reversal was called for because “standards of decency” had changed.

It may be that evolving “standards of decency” regarding homosexuality have given the Olson and Boies team a key advantage over its opposing counsel. Public opinion has changed enough so that many anti-gay claims can no longer be made in public. “In the early nineties, lawyers defending traditional marriage were willing to make these very broad anti-gay arguments,” Thomas Keck said, but that has become more difficult, and sometimes seems to leave advocates of traditional marriage rhetorically disarmed—especially, perhaps, in a courtroom in San Francisco.

For example, one of the arguments that the anti-gay-marriage side has increasingly turned to outside the courtroom is that allowing same-sex marriage would hurt heterosexual marriage. At the pretrial hearing, Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. “I’m asking you to tell me,” he said at last, “how it would harm opposite-sex marriages.”

“All right,” Cooper said.

“All right,” Walker said. “Let’s play on the same playing field for once.”

There was a pause—it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, “Your Honor, my answer is: I don’t know. I don’t know.”



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