“Forcing the Spring: Inside the Fight for Marriage Equality” by Jo Becker is a riveting account of how California’s Proposition 8, which outlawed same-sex marriage there, went from voter passage in 2008 to Supreme Court invalidation in 2013. The incredible access the New York Times investigative reporter had with the principals involved and others will satisfy that political-junky thirst for the backstory swirling around historical events.
Becker’s access got her eviscerated by Andrew Sullivan. He took exception to her likening the actions of Chad Griffin, now president of the Human Rights Campaign, to those of Rosa Parks. Sullivan also says Becker “sweeps . . . aside” key people in the history of the marriage-equality movement, including himself and Evan Wolfson, the founder of “Freedom to Marry.” As Sullivan correctly writes, Wolfson “had the courage to create this movement, and empower it with legal rigor and strategy, when it was far, far less popular than it is now.”
Sullivan raises a valid concern about how the history of the quest for marriage equality is being portrayed. But his characteristically harsh tone obscures the fact that Becker’s book is not an exhaustive look at that history. Instead, it is an exhaustive look at a moment in the overarching civil rights fight for lesbian, gay, bisexual and transgender (LGBT) Americans: what happened between Election Night 2008 and the 2013 Supreme Court decision that made same-sex marriage legal again in California.
After reading select chapters of the book to be released next week, I can say Becker gives readers an insider’s view of what they watched in real time over four and a half years. Her interviews and observations are presented in a riveting fashion that reminded me of Taylor Branch’s “Parting the Waters,” the first of three books on Martin Luther King and the Civil Rights movement.
There’s a lot in Becker’s book to chew on. So I’ll just focus on three things I found particularly interesting.
“What were we thinking putting that in the Constitution?”
David Boies, a Democrat, and Ted Olson, a conservative Republican, are the bipartisan political odd couple who teamed up to overturn Proposition 8. Odd because they battled each other on behalf of their respective clients before the Supreme Court in Bush v. Gore, which determined who won Florida’s electoral votes and thus the 2000 presidential election. Olson’s client, Bush, won and the legendary lawyer was made the solicitor general of the United States.
One of the surprising anecdotes in Becker’s book involved the push in 2004 to ban same-sex marriage through an amendment to the U.S. Constitution. Olson was dead-set against it.
When Olson was asked for his views on a proposal to amend the U.S. Constitution to define marriage as a union between a man and a woman, he was characteristically blunt, despite the fact that it had the president’s support. Not only was it bad, he told the White House, but “what were we thinking putting something like that in the Constitution?”
Olson was also vocal in his support for marriage equality. Well, within his conservative circle, at least.
One night early in Bush’s first term over dinner at the Caucus Room, a Capitol Hill hangout, Olson launched into an argument that marriage was an essential component of human happiness that same-sex couples should be able to enjoy, recalled his friend, conservative author and former Bush speechwriter David Frum. Most everyone else at the dinner table was opposed, but Olson wouldn’t be moved. Frum was struck by how passionately Olson seemed to feel.
“You have to make peace with this because it is sure to happen,” Olson told the other dinner attendees, “and you will see it in your lifetime.”
When Olson agreed to take the case, he did so in dramatic fashion at a meeting hosted in the home of liberal Hollywood icon Rob Reiner. Becker writes that Olson said, “I will not just be some hired gun. I would be honored to be the voice for this cause.”
“We don’t want to have some Scopes Monkey trial here, do we?”
The decision of Federal District Judge Vaughn Walker (now retired) to hold a trial complete with presentation of evidence and testimony on all aspects marriage and the role of same-sex couples in the revered institution should be remembered as one of the pivotal moments in marriage-equality history. Because everything that would come out of the trial would become the record used by subsequent courts in the inevitable appeals, Becker writes, it was believed that Walker “was giving Olson a chance to bulletproof his case before it got to the Supreme Court.” And ensure victory.
Appeals courts, which review the decisions of lower courts, do not hear from witnesses or relitigate evidence. They are supposed to defer to a trial judge’s factual findings and limit their review to whether the law was correctly applied, meaning that later courts would be forced to contend with whatever Judge Walker decided the evidence showed when it came to issues like whether sexuality is changeable or what motivated Proposition 8.
Among the other evidence Walker sought were the history of discrimination against gay men and lesbians, evidence that same-sex marriage destabilized heterosexual marriages and whether the right to marriage demanded by the plaintiffs was protected by the due process clause of the U.S. Constitution. But Olson was so eager for a fast route to the high court, Becker reports, that he “was not initially keen on the idea of trial.”
In Olson’s view, the case could be decided on an expedited basis simply by looking to the Constitution and applying Supreme Court precedent. Walker, however, had other ideas.
There were questions not just of law, but of fact that needed to be resolved, the judge said.
“This is a trial court, this is not the Supreme Court of the United States where we deal with these boxcar philosophical issues,” the judge said. “We deal with facts; we deal with evidence; we deal with the testimony of witnesses.”….
And when Walker wouldn’t budge, Becker reports that Charles Cooper, the lawyer for the proponents of Prop 8, told her that he and his longtime friend had a conversation about what to do.
Olson had pulled Cooper aside just before the start of the hearing to privately suggest that they jointly oppose Walker’s trial plan. “We don’t want to have some Scopes Monkey trial here, do we?” Cooper recalled Olson saying…..
When it became clear the judge would not be deterred, Olson had suggested in more diplomatic language that perhaps he and Cooper could stipulate to some of the facts at issue in order to move things along. “That might help to narrow the issues upon which there then might have to be expert testimony,” Olson told the judge.
According to Becker, this sequence of events so concerned Terry Stewart, San Francisco’s chief deputy city attorney, that she went to City Attorney Dennis Herrera to insist that the city file a motion to become a party to the case. “They need our help, even if they don’t know it,” Stewart said.
“The mood on board was subdued”
The nation cheered the Supreme Court’s invalidation of the so-called Defense of Marriage Act (DOMA) and the justices’ ruling to uphold Judge Walker’s ruling overturning Prop 8. Boies, Olson, Griffin and the four plaintiffs in the historic case — Kris Perry and Sandy Stier, Paul Katami and Jeffrey Zarrillo — basked in the victory on the courthouse steps. President Obama called Griffin while they were doing an interview on MSNBC. The celebration was just beginning as the plaintiffs and their legal team hopped a private jet to California within hours of the ruling.
But, as Becker reports, “[Overall], the mood on board was subdued.”
Not only had the Prop 8 proponents put out a press release saying they would try to limit the Supreme Court’s ruling by arguing that the Walker ruling only applied to the four litigants, but the high court’s ruling wouldn’t take effect for at least 25 days. That would give the losing side time to ask for a rehearing.
With no immediate wedding to plan, Kris and Sandy passed the time by sharing the e-mails flooding their in-box. Paul, looking emotionally exhausted, stared intensely out the window for several minutes, before laying his head on Jeff’s should and falling asleep. . . .
And in truth, it was hard not to feel a little ambivalent, when they had wanted so much more.
Olson and Boies pushed hard to get the Supreme Court to rule that denying the right to marry to same-sex couples was unconstitutional. The Justices didn’t do that. By deciding the proponents of Prop 8 didn’t have standing to bring the case, the court allowed same-sex marriages to resume in California without having to answer the broader constitutional question posed by the legal odd couple.
“It’s hard to respond,” Griffin told Boies. “I just cringe,” Boies said in response.
But Becker makes an important observation. “Kennedy had dissented from the majority’s standing opinion — written by Chief Justice Roberts — meaning he had been willing to rule on the constitutionality of Proposition 8. Denied that opportunity, he seemed to have grafted whole passages of the arguments that Olson had put forward in the Prop 8 case onto his opinion in the DOMA case,” she writes.
Oslon, Boies and Griffin traded theories about why the Justices ruled the way they did and the quirky vote combinations that made their victory possible. As Becker points out, “Kris and Sandy and Jeff and Paul had Justice Scalia to thank for the fact that they would soon be getting married.” Scalia and Roberts were joined by liberal Justices Ginsburg, Kagan and Breyer.
The pall cast over the flight would lift the moment they crossed into California airspace.
Adam [Umhoefer], who was watching the flight path on a wall-mounted screen, interrupted the what-if legal reverie.
“Hey, we just crossed into California, ” he called out from the back of the plane, “where we are now full and equal citizens.”
It took a moment to process the import of those words. Then, for the first time that day, everyone began to cheer.
Because of the actions taken by Perry, Stier, Katami, Zarrillo, Olson, Boies, Griffin and so many others, marriage-equality bans have been overturned (pending appeals) by federal judges in four states. Because of Becker, we have a clearer understanding of how it all happened.
Follow Jonathan on Twitter: @Capehartj