Forcing the conclusion: review of a new book about the Prop 8 case

May 7

Ten years after the first same-sex marriages began in the United States, controversy is simmering over who should get credit for the success of the movement. Much of that controversy involves how and by whom history will be told. And following the famous maxim, victory in the cause–which is still incomplete–has a thousand fathers claiming parentage. The latest bid to add to that history is Forcing the Spring: Inside the Fight for Marriage Equality (Penguin 2014), written by New York Times investigative reporter Jo Becker.  I recently reviewed the book in the San Francisco Chronicle.

If one were going to write the history of the struggle for gay marriage, one might start with the story of the early generations of gay-rights advocates going back at least to the 1920s who faced public shaming and violence, rejection by families, criminal prosecution, forced “conversion” to heterosexuality, and loss of employment.

If one were going to tell just the story of litigation for same-sex marriage, one might begin with Jack Baker and Mike McConnell, who challenged Minnesota’s exclusion of same-sex couples from marriage in the early 1970s. If, on the other hand, one were going to concentrate on successful litigation the story would surely include a discussion of the Hawaii case from the early 1990s, the Vermont case from the late 1990s, and of course the first actual victory in Massachusetts in 2003.

But suppose one were to focus solely on the cases decided by the Supreme Court in the summer of 2013.  Of the two, one would prefer to cover United States v. Windsor, the successful litigation that’s generating fortnightly wins for gay marriage in district courts across the country.

But in her new book, Becker tells the tale of the other gay-marriage decision from last summer (quick: what was the name of the case?).  The litigation, started by a collaboration of political consultants and Hollywood celebrities under the rubric of the American Foundation for Equal Rights (AFER), challenged California’s Proposition 8, the state constitutional amendment banning same-sex marriage that was passed by voters in 2008.

Here’s an excerpt from my Chronicle review of the book:

Becker likens the AFER lawsuit to “a revolution.” She compares the political consultant who started the group, Chad Griffin, to the renowned black civil rights activist Rosa Parks. Later she depicts him brooding over a memorial to the Rev. Martin Luther King Jr.

As Becker knows, the gay marriage movement was not the brainchild of Griffin as he watched the 2008 election returns in his “spacious suite at the Westin St. Francis hotel.” Despite nods to visionary legal strategists like Mary Bonauto and Evan Wolfson, who are mostly lumped together as part of a stodgy and self-important old guard, “Forcing the Spring” provides little historical context for the Prop. 8 litigation. Worse, Becker claims that the cause of gay marriage “languished in obscurity” until AFER rescued it.

Detractors have focused on risible assertions like these. Becker has responded that her book is not an all-encompassing history of the struggle; it only recounts an important chapter. Fair enough, but a book that credits a single lawsuit for a dramatic breakthrough bears a heavy burden of persuasion.

“Forcing the Spring” is an impressive accomplishment on many levels. Becker was granted unparalleled access for almost four years to the AFER team. Based on scores of interviews with participants, she details a comprehensive public-relations and fundraising strategy, lays out in plain language the legal doctrine, and tells the human stories that gave it life.

There are advantages and pitfalls to such insider journalism. Becker knows more about the Prop. 8 case than almost anyone else. But she too uncritically accepts her main sources’ conclusions about how important their work was. One senses she thought she had bet on a historic winner and then forces the narrative into that mold.

The sequel to Windsor and the Prop 8 case (by the way, that’s Hollingsworth v. Perry) is itself still being written, with a variety of attorneys and advocacy groups jockeying to be its primary author.  Ted Olson and David Boies, the famous duo who headed the Perry litigation, are leading a case out of Virginia. Windsor attorney Roberta Kaplan is trying to intervene in an Ohio case, and is being opposed by the ACLU, which wants to keep the litigation under its own control.

But there is no doubt that, of the two cases decided last summer in the Supreme Court, the successful challenge to the Defense of Marriage Act is the more important contribution to the movement.  Returning to my review of Forcing the Spring:

In the closing pages of her book, Becker tries to resuscitate the Perry legacy by claiming that Justice Kennedy‘s expansive Windsor opinion “seemed to have grafted whole passages” from Olson’s argument. But that speculation, too, seems forced. Kennedy’s observations about dignity and second-class status echoed many arguments by lawyers in both cases. The laurels belong to Windsor’s pro bono attorneys, among them Bonauto, who had no embedded journalist shadowing them.

The Perry case did bring same-sex marriage back to California, no mean feat. The cost was $6 million in fees paid to Olson’s law firm – still a bargain compared with the expense of another statewide campaign on the issue. The worst fears of the gay legal establishment about a precedent-setting defeat did not materialize.

Like the litigation it chronicles, “Forcing the Spring” delivers a lot but ultimately falls short of its promise. It is less the tale of a revolution than the definitive account of one memorable sally in an unfinished crusade.

You can read the whole review here.

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.
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