Victory: The Triumphant Gay Revolution - Linda Hirshman (2012)
Chapter 11. With Liberal Friends: Who Needs Enemies?
Senator Dianne Feinstein’s guest for the State of the Union address, San Francisco mayor Gavin Newsom, was fuming. He had just listened to George W. Bush call for a federal amendment to ban same-sex marriage in the 2004 State of the Union address. As he listened to the conservative audience members congratulating themselves that someone was finally going to “do something about the homosexuals,” he got even madder. How dare the president of the United States use his office to divide the country and instigate such a hateful idea? Newsom, the youngest-ever San Francisco mayor, read the opinion in Goodridge and decided that the California constitution, like the Massachusetts constitution, required marriage to be available to couples regardless of their sexual orientation. These were human beings the president was talking about. Newsom was going to order his clerk to start issuing marriage licenses. San Francisco would again be the gay refugee camp—from George Bush’s “Amerika.”
The Gathering Storm
The smart people who run UCLA’s LGBT think tank, the Williams Institute, had been afraid of this. As they had learned in Hawaii and Alaska, the remaining issues, like same-sex marriage, were not winners in the precincts of mass politics. In early 2003, they called a meeting of the heavy hitters in the California gay legal movement—the ACLU, local Lambda lawyers, San Francisco’s National Center for Lesbian Rights director Kate Kendell. After much debate, they took the pledge—not to pursue marriage litigation in California. They knew any victory would trigger an anti–gay marriage initiative, which they were confident they would lose. Everybody signed off on the agreement to wait.
Gavin Newsom hadn’t signed the pledge. When his aide called Kate Kendell, she immediately went into movement mode and started talking about how risky it was. “We’re not calling to ask permission,” the aide said. Even in hindsight, though, Kendell asserts, she would not have stopped him. “Having a straight, Catholic mainstream politician embrace the cause of same-sex marriage was a game changer, even if the city he was mayor of was San Francisco. In a single gesture,” she says, “it put the marriage movement light-years ahead. It was simply exhilarating.”
Once Newsom made his decision, the ultimate confrontation over the law was unavoidable. The only defense San Francisco had for violating California law excluding gay people from marriage was that the California law was unconstitutional. The city officials put forth that defense, their opponents asked the state court to declare the law to be constitutional, a bunch of gay groups like the establishment Equality California challenged the exclusionary law, and before you could say media scrum, Los Angeles celebrity lawyer Gloria Allred had jumped in with a suit of her own. The certainty of a hostile referendum if they won in the state court seems to have disappeared from the calculus. Even political consultant Chad Griffin, who would soon be called in to deal with the utterly foreseeable aftermath of Newsom’s decision, defends the mayor fiercely. After all, Kendell says, the victory in Massachusetts had not triggered a referendum. Maybe it would take long enough for the opponents to organize a referendum that people would get used to seeing same-sex marriages. Maybe people had come far enough so that they wouldn’t believe the things marriage opponents would say in a referendum campaign.
Maybe. But by the time the California Supreme Court ruled in favor of same-sex marriage by a bare majority of four to three on May 15, 2008, the anti–gay marriage forces were already preparing the campaign to undo the decision by amending the California constitution, with what would become Proposition 8 on California’s 2008 ballot. The forces behind Prop 8 were not new. For years before he died in 2004, California state senator William “Pete” Knight of Palmdale, outside of Los Angeles, had led the fight to limit California marriages to opposite-sex couples only. After Newsom’s step, Knight’s wife and his right-hand man, Andrew Pugno, joined forces with the California Family Council, a local associate of James Dobson’s Focus on the Family, to form ProtectMarriage.com in 2007. To run the campaign they hired Schubert Flint Public Affairs, which had played a key role in defeating tobacco taxes for children’s health and fighting for corporations against personal injury verdicts, or “tort reform.” Before the state supreme court even ruled, the coalition had hundreds of thousands more signatures for the referendum than they required.
It looked like an uphill fight for the gay marriage opponents and Schubert Flint. A Field poll in the spring of 2008 showed Prop 8 going down by three to five points. Like Massachusetts, California had long before passed the whole package of laws welcoming gays and lesbians to the secular state—hate-crimes acts, nondiscrimination, decriminalizing sodomy—that Justice Marshall had used to rebut the moral-repugnance argument in Goodridge. ProtectMarriage.com’s job was to sever the connection between marriage and the liberal state. Just because society had to live with gays and lesbians, Schubert said, did not mean they had to approve of them: “No longer would it be enough for Californians to tolerate gay relationships, they would have to accept gay marriage as being equivalent to traditional marriage. Tolerance is one thing; forced acceptance of something you personally oppose is a very different matter.”
The antigay consultants did an almost pitch perfect job. They quickly identified the handful of remaining areas of American life where the democratic values of the liberal state are weakest, and revulsion is still considered a legitimate political posture. According to Schubert, “We settled on three broad areas where this conflict of rights was most likely to occur: in the area of religious freedom, in the area of individual freedom of expression, and in how this new ‘fundamental right’ would be inculcated in young children through the public schools.” Maybe Californians couldn’t beat up gays or refuse to hire them, but, ProtectMarriage argued, they should still be entitled to hate them when observing their religion, when engaging in protected hate speech, and when teaching their children to hate what they hated. Two of the three areas Schubert Flint identified—church and family—are the areas of life furthest from the liberal state, and hate speech is an arena where freedom, however hateful, trumps equality in the American system.
Church and hate speech were relative whiffs. Pretty much everyone knew that gay people would not be trying to solemnize their unions in the cathedrals of the religions that hated them when so many appealing alternatives existed. And even Schubert Flint’s people could not produce a viable campaign ad extolling the rights of people like the Westboro Baptist Church, who carried a “Fags in Hell” sign at Matthew Shepard’s funeral.
But the schoolkids campaign sent the ball clear out of the park. When Schubert Flint laid down the kids card, the support for same-sex marriage dropped like a rock. The argument about the effect on children of legalizing same-sex marriage also had the virtue of being somewhat truthful. Public schools are in fact the place where the values of the liberal, secular state and values of the parochial, hierarchical family may come into direct conflict. This has been true at least since the “Monkey Trial” controversy over the teaching of the science of evolution in 1925. Despite a century of religiously driven resistance, by 2008 almost all American public schools taught biology in the form of ordinary falsifiable Enlightenment science. Like it or not, learning about evolution in public school, children learn a lesson about the reliability of the Bible. Similarly, in the rights revolution of the Sixties, families who believed in the superiority of white people had to send their children to school with people who were not white, a powerful implicit message of racial equality. And then they had to stop praying in school, a powerful message of skepticism. Next thing the parents knew, the schools were teaching the kids about sex, including how to have it without its natural justification of reproduction. In Massachusetts—and elsewhere—as part of the diversity curriculum in some public schools, books showing same-sex families were included in public school materials.
People who did not want their children to learn the lessons of the liberal state pulled their children out of public school to pray and teach them biblical science in racially controlled environments with abstinence curriculums. After the Internal Revenue Service briefly threatened the tax deductions for the private all-white “seg academies” in 1978, the option got less attractive. For families that did not believe in Lincoln, Darwin, or Margaret Sanger, rearing children who spent the day in the public schools was a constant Kulturkampf.
As a technical matter, allowing gays and lesbians to marry did not address how the marital household was to be presented in public school. But schoolbooks are full of representations of families—they are most children’s primary experience of the wider world. Even story problems in math class have families in them. So if the world was going to contain families formed by same-sex marriage, sooner or later a curriculum devoid of such examples would start to look like biology without Darwin.
The real agenda was not marriage per se, but that marriage is unavoidably linked with sex. No one ever thought to link the presence of opposite-sex families in the school readers and math problems to the message that men and women could have sex with one another, teaching six-year-olds about heterosexual sex. Heterosexual marriages have the prime advantage of being around for so long that no one really thinks about what they mean. But from its creation as a category—people who have sex with others of the same gender—in the mid-nineteenth century, “homosexuality” has always been about sex. All Schubert Flint had to do was light up the “sex” in same-sex marriage to put the issue on the table.
On October 8, ProtectMarriage went up on TV with an ad, “Princes.” In “Princes,” which aired first briefly on Spanish-language TV, a young Hispanic girl comes home and tells her mother, “Guess what I learned in school today. I learned how a prince married a prince, and I can marry a princess!” Studies of polling after the fact reveal that the support for same-sex marriage dropped a point every other day for two weeks following the ad. As a technical matter, at the time of Prop 8 California law allowed families to opt out of “health” (read, sex) lessons, but no matter. The polling showed parents of small children going over to support Prop 8 in droves.
That the No forces would have been caught unprepared for a save-the-children pitch reflects a mind-boggling level of historical illiteracy. The whole Anita Bryant–led campaign to roll back the civil rights initiatives three decades before had been called “Save Our Children”; one centerpiece of the campaign for Colorado’s Amendment 2 was a cartoon about gay workers at a day-care center.
When the polling started rolling in, the California gay organizations resisting Prop 8 ran to an actual gay political consultant, Los Angeles’s Chad Griffin, to film a response to “Princes.” Griffin, then thirty-one, the coolest guy in the class, had come to California after a stint as the youngest person in the Clinton White House to open a consulting firm. He never believed the polls that showed that the gay no on Proposition 8 position was polling so far ahead of the anti–gay marriage initiative. Now with the gay side polling at 38 or 39 percent, he knew that the only possible escape was “to crush them, utterly crush their message.” He and his partner in the ad business, Doug Armour, brought in the only person in California with the credibility to do that—the superintendent of Public Education, Jack O’Connell. Griffin and Armour tried to take the sex out. They made an ad with O’Connell saying that gay marriage had nothing to do with public schools. This is technically true, but cowardly, and Griffin knew it would make the gay community uncomfortable. The right answer is, as Griffin admits, that “maybe we should teach these things.” But at the time, he said, “We were trying to get a no vote and to me it doesn’t matter how you do it.” The no side got to 48 percent. And that’s where it stayed until Election Day, November 4, 2008. It was never going to be easy, Griffin reflects. “I’ve never seen a perfect campaign,” Griffin charitably says. “With a perfect campaign we might have gotten 51 percent.”
Or they might never have gotten to 51 percent. As the great movement thinkers since Harry Hay have known, you can’t take the sex out of homosexual, and certainly not in the context of marriage. The first right in the Constitution of the post-Stonewall Gay Activists Alliance was “the right to our own feelings,” including the right to feel attracted to the beauty of members of their own sex and “the right to express our feelings in action through making love.” In that regard, gay men and lesbian women are different. When they try to make themselves into carbon copies of the nongay population, they usually fail.
They had fierce adversaries. The Catholic archbishop of San Francisco had spent eleven years as bishop of Salt Lake City; when he reached out to the Mormon Church to help pass Prop 8, all the relationships were already in place. Mormons, Schubert says, gave the campaign a staggering 40 percent of the millions they raised in the last months of the campaign and provided a huge number of foot soldiers. Polling reveals that it was a last Sunday effort by the churches that raised the support needed to pass Prop 8.
Even in California, marriage is the hardest battle. People the gay community thought it could count on abandoned them in droves. Parents of young children voted against them. Majorities of Hispanic and African American populations, with their heavy churchgoing component, voted against them. Cleve Jones remembers union leaders coming to him time after time during the weeks before the November 4 election date and warning him. We are turning out voters for Obama, they told Jones, and our voters are going to vote yes on forbidding same-sex marriage.
Where Were You on November 4?
Chad Griffin was in a suite at the posh St. Francis Hotel in San Francisco, with his friend Mayor Gavin Newsom and Milk movie producer Bruce Cohen, when the election returns came in. Griffin had always thought Prop 8 was a losing proposition for the gay community, but he still felt “profoundly conflicted.” While the country had elected its first African American president, California, a state that had always symbolized the best of the American dream to Chad, had wrenchingly let its people down.
Lesbian community-college teacher Robin McGehee was standing in a little meeting room at the Holiday Inn in downtown Fresno with LGBT people watching the Prop 8 results. The Democratic party was in a large ballroom at the same Holiday Inn. She could hear the cheers for Obama: “I was sitting in a room the size of a hotel room and I could hear them celebrating, and I thought, ‘We’re separated.’ It wasn’t that the Democratic group was in there sharing our pain. My hands were in the air saying he’s won and I was sucker punched at the same time.”
Milk screenwriter Dustin Lance Black was not surprised. When the heroic biopic of slain gay leader Harvey Milk, Milk, had its preopening premiere at the Castro Theatre in San Francisco on October 28, 2008, everybody in the project wore their “No on 8” buttons on the red carpet. But Lance Black had been in his home state of Virginia working for Obama earlier that month. Returning home, he played his answering machine and heard a robo-call with Obama’s voice on it. The antigay forces were leaving messages playing candidate Obama’s statement that he was opposed to same-sex marriage.
Matt Foreman, the program director for gay and lesbian rights at the Haas, Jr. Fund, and Evan Wolfson’s first funder, saw the early returns and turned off the TV. He could not understand what the fuss was about. Prop 8 was like the twentieth or thirtieth defense of marriage amendment. The marriage plan never involved fighting in California so soon. Have a little patience, he thought. Those California gays, always thinking everything has to go their way.
What Was to Be Done?
Griffin had a power lunch.
McGehee planned a big rally not in West Hollywood but in the outback.
Black wrote himself an Academy Award acceptance speech making a plea for marriage.
Chad Griffin and his business partner Kristina Schake were commiserating over lunch with Rob Reiner and his wife, Michele, at the legendary Polo Lounge at the Beverly Hills Hotel. Griffin had met the liberal actor and producer in 1995, when his West Wing bosses assigned the nineteen-year-old aide the job of minding Reiner, who was touring the White House in preparation for making the film The American President. Reiner, the big, straight Jewish movie producer, and Griffin, the slender, gay Arkansas Baptist, became instant friends. Reiner says even their handwriting is identical. When, years later, Griffin was contemplating opening his own consulting firm, Reiner was one of his first clients. Reiner had long been involved in liberal politics in California, devoting years away from his lucrative filmmaking business to the cause of early-childhood education, and he used Griffin’s consulting firm to work on the ballot measures to get money for kids.
By the time Griffin and Reiner had lunch, lots of people had been talking about taking the marriage battle to federal court. The federal avenue would settle the question nationwide. And, unlike the decision from the California courts, if the Supreme Court interpreted the US Constitution to forbid laws against same-sex marriage, it would be almost impossible to reverse the decision. Even at the high-water mark of the conservative revival in 2004, President Bush’s call for a federal marriage amendment had gone absolutely nowhere. Reiner, for his part, felt burned by the ballot process and was looking for a more efficient avenue to political outcomes. Nothing beats a victory in the Supreme Court for getting the most bang for your movement bucks. As the Reiners lingered over lunch, a friend, Kate Molene, whose sister had once been married to the legendary conservative lawyer Ted Olson, came by. Later that day she called Michele and said, “You know, if you wanted to try a federal action, Ted Olson would be with you on this.”
Reiner and Michele looked at each other. If that’s true, if that’s really true, this is a political home run. Olson, who had represented candidate George W. Bush successfully in the Supreme Court case that decided the 2000 election, was an icon of conservative America. Did he really mean it? A few weeks after the power lunch, Olson visited the legendarily liberal Reiners in Los Angeles and persuaded them of his sincerity. Same-sex marriage was fundamentally conservative behavior and his libertarian commitments dictated leaving people’s sex lives up to them. He thought there were five justices who would vote their way. Olson suggested that they get a liberal to balance his presence so it wouldn’t look like a stunt. He proposed liberal lion David Boies, who had been his opponent in the presidential election case Bush v. Gore, as cocounsel, and the home run began to look to Reiner like nothing short of a grand slam.
Americans for Equal Rights: The Top-down Strategy
Another organization? Various institutions in the gay movement had been fighting for same-sex marriage since a local organizer filed a suit for Ninia Baehr in Hawaii in 1991. Starting with a prescient initial grant from the Haas, Jr. Fund, the father of the same-sex marriage movement, Evan Wolfson, had been running the Freedom to Marry initiative entirely on that one issue for more than five years. Up in Boston, Mary Bonauto’s Gay and Lesbian Advocates and Defenders were about to score their second victory, getting a promarriage ruling from the state supreme court in Connecticut. Lambda Legal had taken a stab at the heartland, bringing a winning suit in the state courts of Iowa. Wolfson funder Matt Foreman didn’t think long-term marriage advocates actually needed Ted Olson and David Boies to tell them what to do. One state at a time, the conventional gay movement was moving the ball forward over difficult terrain. When Boies and Olson filed the federal suit in spring 2009, the traditional groups claimed they were taken completely by surprise. The gay legal establishment had a long record of treating the federal option with kid gloves. Wolfson pretty well sums up their position when he says, “The choice is do we keep winning which is what we’re doing or do we trigger a premature, problematic, difficult, burdensome, and potentially troublesome result.”
Boies and Olson filed an unremarkable complaint to strike down Prop 8, pitting two couples, Kris Perry and Sandy Stier, and Jeff Zarillo and Paul Katami, against Governor Arnold Schwarzenegger and the other officials charged with enforcing California law. Like the lawsuits the establishment gay legal teams had been filing under the equal protection language of the state constitutions in Massachusetts and elsewhere, Perry v. Schwarzenegger told the story of their plaintiffs wanting to make a life together, invoking, instead of the state charters, the protections of equality and due process from the federal Constitution. It didn’t take Olson and Boies to figure out that they had to make their case look as much as possible like Larry Tribe’s successful argument in Romer v. Evans. The voters of California, the complaint says, just decided to cut gay and lesbian people off from all the rights and status that come along with marriage, to create a group uniquely disfavored in the law. The Supreme Court had forbidden the states to separate interracial couples forty years before in Loving v. Virginia. Turner v. Safley, a constitutional decision made in 1987, protected marriage rights, even for prisoners with life sentences. Once again, the voters, in referendum, had relegated gays and lesbians to a status lower than felons. Like Colorado’s Amendment 2, the repeal of California’s right to same-sex marriage can be explained only by a bare desire to hurt a historically disfavored group. It wasn’t a big theoretical stretch from Romer to Perry. The only question was whether the Supreme Court was ready.
Forget legal theory; when Boies and Olson stepped up to the podium at a press conference to announce their representation of the cause of same-sex marriage on May 27, 2009, the scene looked like nothing so much as their separate press conferences that surrounded the 2000 election contest Bush v. Gore. CNN was there and Fox News, the Los Angeles Times, and the New York Times. Like the memorable backdrops created for the warring sides in Bush v. Gore, Griffin had surrounded his champions with red, white, and blue.
But instead of representing the irreconcilable halves of an evenly divided nation, this time Olson and Boies together symbolized a unified nation, red and blue, liberal and conservative, Democratic and Republican, all agreed on the bedrock American principle of equal rights. It was the Christmas truce in the culture wars. Boies and Olson did a good imitation of Alphonse and Gaston, each deferring to the other, and admiring journalists uncovered stories of the two adversaries’ previously unreported joint bicycle trips and long, wine-soaked dinners in the years following their legendary confrontation.
Why does it matter that Boies and Olson took the case? At about the same time as the Perry filing, a private lawyer in California had brought a federal suit, Smelt v. United States, with much the same theory, challenging the constitutionality of the Defense of Marriage Act. Three months before Perry, Mary Bonauto, who had represented the successful plaintiffs in Massachusetts, filed a constitutional suit in Massachusetts to stop the United States from enforcing the part of the Defense of Marriage Act that withholds all federal benefits from married same-sex couples. If Massachusetts says you’re married, Bonauto asserted, the federal government has no business substituting its judgment for the state.
Bonauto’s DOMA case, Gill v. Office of Personnel Management, could have been decided on somewhat narrower grounds than the head-on confrontation in Perry, just holding that the federal government must defer to the states about what constitutes a valid marriage. However, Gill also raised the broader issue—that treating same-sex marriages differently is unconstitutional, period. The Gill complaint is just as skillfully drawn as Boies and Olson’s was. It was inherently just as newsworthy as Perry. Bonauto was in many ways a more appropriate symbol for same-sex marriage than the straight white men in California. She is married to a same-sex partner; the two are raising two children; she won the first victory in Goodridge. But when Bonauto filed Gill, there was no bunting, no CNN. Boies and Olson were rock stars. When they came on board, the movement changed.
In January 2010, the media gathered once again in San Francisco, this time to watch the first day of the trial in the case billed as the gay Brown v. Board of Education. The courtroom was filled to overflowing—media, showbiz celebs like Rob Reiner, and famous activists like Cleve Jones. The first witness to testify was Kris Perry, lesbian mother of four, who had been trying for years, as marriage went in and out under California law, to marry her longtime partner, Sandra Stier. Questioned by Olson, Kris told the story of how she tried to just be a mom in the stands at her sons’ ball games. Every day she faced the question of whether to come out, sometimes to perfect strangers like the clerk holding a charge card form with a box to check: marital status. The effort that this very private woman made to tell her story publicly, while her adorable young sons sat in the courtroom, left not a dry eye in the house. When she stepped down, the godfather of the conservative legal establishment, Ted Olson, wrapped his arms around her. For twelve days of trial, in the courtroom and live blogged, the media and the community witnessed the gay and lesbian couples and the two most famous lawyers in America, every day, all day, including at lunch. At the rally after the judge ruled in their favor a few months later, plaintiff Paul Katami hugged Ted Olson back. The picture was all over the Internet.
Ya gotta have friends in high places. As a matter of pure constitutional logic, once the US Supreme Court categorized marriage as a fundamental civil right in Loving and all the cases that followed, the state should have to show some convincing reason beyond pure distaste to limit membership in the club. The idea that stories with opposite-sex marriages are chaste, while tales of same-sex marriages will turn the children into little satyrs, so effective in the TV ads, should not survive the rational fact-finding process of the legal system. But even the courts are not immune to social politics. In the real world, before the courts will act, there is almost always some shift in social legitimacy. Nowhere is this more the case than those areas like marriage that feel distant from the purely political world. Civil rights litigation often speeds up the process of social legitimation, because it forces people to take sides in public, but it is almost never the first step.
David Boies and Ted Olson hugging their clients, 2011. Paul Katami (far left), Jeffrey Zarillo (second from right), Ted Olson (second from left), and David Boies, (right). (AP Photo/Eric Risberg)
When Boies and Olson filed their suit, the gay movement had been hammering on the marriage establishment with claims of formal equality brought by their own movement lawyers since 1991, with limited success. The sexual-privacy cases they relied on only reinforced the idea of sexual relationships as outside the structure of civil society; they were about the right to be left alone, not the right to be approved. Although the Supreme Court clearly categorized marriage as fundamental in the race-marriage case, Loving, the law in that case was intrusive; it made it criminal for a white person and another “to cohabit as man and wife” in Virginia, especially pursuant to an interracial marriage from a more permissive state. Loving also smelled to high heaven of Hitler-era eugenics, with all the talk of mongrel races and pure blood.
The revolution’s demand for gay marriage, however, went far beyond the tolerance-based arguments in Loving. The gay revolution affirmatively demands that the states bless gays’ unions—to admit them to the state-run social club called “marriage.” In the fight over Prop 8, Schubert Flint cannily figured this out, adopting as their goal separating respect for gay and lesbian rights from approval of their application to join the club. On Election Day, millions of citizens of the state of California had voted their RSVPs, regretfully declining to attend same-sex weddings.
Perry started the process of gathering sponsors for gay candidates for the marriage club almost immediately after the suit was filed. Attorney General Jerry Brown, and, later, Governor Arnold Schwarzenegger, weighed in, refusing to defend Prop 8. They thought it was unconstitutional, too. The extremely antigay Pugno Protect Marriage coalition had to move to intervene, a costly move. Politically, instead of a neutral, high government official defending the well-established voting process that just happened to turn up an antigay result, the new defendant, the offspring of State Senator Pete Knight’s long-standing antigay campaign, graphically symbolized the record of antigay prejudice that fueled Prop 8.
Moreover, a shrewd public official might have tried to pull off a defense of Prop 8 as distasteful, but within the broad constitutional tolerance for democratic self-governance, a position for which there is a lot of support regardless of the content of the decision. ProtectMarriage.com, however, actually tried to show that gay marriage would hurt society. The ProtectMarriage lawyer even tried the “Princes” move (“would you want school children to learn about gay marriages?”) in cross-examining legendary gay historian George Chauncey. Chauncey, however, had learned his history lessons. “Why not?” he asked. “Shouldn’t children be allowed to read books in which interracial couples marry and live happily ever after?” After legendary cross-examiner David Boies had his way with the defense’s so-called “expert” witnesses to the gay marriage threat during pretrial proceedings, most of them refused to come to court. The one witness brave enough to face Boies in the courtroom was rewarded by having his testimony dismantled by Boies’s cross-examination and then failing to qualify as an expert anyway. During the two years of litigation, ProtectMarriage spent almost as much time keeping the trial from being broadcast to the public as they did defending Prop 8. Even ProtectMarriage must have realized that watching them replay their political campaign in the reason-driven precincts of the courtroom would not help their cause.
On the gay side, what with all the hugging and the toasting and the handsome men in their business suits, the rally after the judge ruled for the plaintiffs looked for all the world like a wedding reception. Speaking everywhere and being on the news every time something happened in the case, Boies and Olson put their social capital in the bank for marriage equality. Probably no one else in the country could have done more. On August 8, 2011, the American Bar Association awarded Boies and Olson their highest honor, a medal won in previous years by lawyers like justices Oliver Wendell Holmes and Thurgood Marshall.
The Fierce Advocate
Unlike the happy postpartisan Boies-Olson twins, six months into his first term the newly elected Democratic president of the United States, Barack Obama, found himself in the same illiberal camp as the usually liberal California electorate. His Justice Department filed a brief defending the Defense of Marriage Act (DOMA) in the first of many challenges to come, Smelt v. United States. Someone sent the brief to blogger John Aravosis. The government had made arguments, common in the litigation over same-sex marriage, that gays and lesbians have no special constitutional rights, that DOMA was rational, which is all that’s required if gays aren’t a protected class. If all you’re looking for is a rational basis for a law, the United States argued, the government has ample power to restrict marriage, as it does in cases, for example, of incest or underage children. The brief seemed, to an official at the ex-gay group Exodus International, to be pleasingly “repeating social conservative arguments.” Gay marriage = Incest! Pedophilia!!
The Democratic administration may be excused for not realizing the price it was going to pay for the brief in Smelt. After all, scores of Democrats in Congress had voted for DOMA in the first place, with no apparent electoral or other cost to them. The state and local Democratic parties had done nothing to stave off the anti–gay marriage amendment tsunami in 2004.
And they had reason to want to stay away from the issue. In the fifteen years since Bill Clinton took office in 1993, the deep structure of the American electoral map had changed very little. Any national candidate would need to peel off some of the consistently Republican states in order to win the White House. The core Republican-base states map almost perfectly onto the strongholds of the religious right, and gay marriage raised the Sinful horseman of the gay apocalypse like no other issue had since the AIDS epidemic.
Doubtless mindful of the electoral reality it faced, the Obama campaign had repeatedly insulted or ignored the gay movement. Early in the 2008 primary season, the Obama campaign had put together a gospel tour, targeted at the African American voters of South Carolina. For their headliner, the Obama campaign chose Donny McClurkin, who all the locals knew was the poster boy for being cured of gayness through finding God. Activists would never know whether the Obama campaign had just gratuitously insulted them because it did not care about the gay constituency or because the campaign was too ignorant of gay issues to know who they had hired. Exactly as the activists feared, the campaign gave McClurkin the stage, and he told the audience that God had delivered him from homosexuality. After the McClurkin episode blew up at them, the Obama campaign suddenly acceded to repeated requests from gay magazine the Advocate for an interview with the candidate, and their political reporter Kerry Eleveld got fifteen minutes to listen to Obama recite his record on support for LGBT issues while a state senator. It was the first time a presidential candidate had ever given an interview to an official gay publication.
A month after the campaign ended, Obama’s team picked California evangelical minister Rick Warren to give the invocation at the game-changing president’s inauguration. Warren’s positions on poverty and AIDS had given him some distance from the hard-right profile of the ordinary evangelical, but he had e-mailed his thirty thousand followers just before the election, urging them to pass Prop 8 and “preserve the Biblical definition of marriage.” Gay activists were incensed at the inclusion of an antigay preacher to open the presidential inauguration. Again, Obama turned to the media to emphasize the good heart that underlay his offensive actions. At a press conference shortly after the Warren explosion, Obama described himself as “a fierce advocate for gay and lesbian Americans.” The establishment gay organization Human Rights Campaign invited the president to address their big dinner. It looked like nothing had changed since the A-gays failed to buy their way in to the Democratic Party in 1993. An electoral minority, concentrated in states already safe for the liberal-leaning party, their options looked pretty bleak.
But by the time the Justice Department compared same-sex marriage to incest in federal court, the movement had changed. The gay blogosphere, now five years old, was made for this. John Aravosis’s version of the Smelt brief went viral faster than the Spanish flu and instantly crossed into the mainstream media, which also now included a number of out gay journalists and opinion writers. No one needed to remind Aravosis or the fourth estate that Gay Was Good. Presidential press secretary Robert Gibbs found himself defending the brief under heavy fire from ABC’s Jake Tapper, and the Washington Post’s Jonathan Capehart wrote a column about how donors were bailing out on an upcoming Obama fund-raiser. As Rick Jacobs, head of the liberal and progay California Courage Campaign, astutely observed, gay people were already furious about the loss on Prop 8. Now some of that anger was turning on the president. The Obama administration hurried up its new executive order extending partnership benefits to the same-sex couples employed by the federal government, in a transparent effort to calm the waters.
Clinton’s old gay adviser Richard Socarides, who would become one of the “fierce advocate” ’s fiercest critics, dates his radicalization to the day he heard about the Rick Warren invocation. Because Socarides was a lawyer and an insider during the Clinton years, he was also relentless on the Justice Department’s persistent claim that when it came to DOMA, it had no choice but to defend the federal law. Socarides knew that almost every modern president had refused to defend some law on grounds that it’s unconstitutional. Socarides went public on MSNBC and in the Wall Street Journal, reaming the president in the indignant tones of someone who knows he’s being lied to.
When an old Nixon appointee, Judge Joseph Tauro, struck down DOMA as unconstitutional in the broadest terms in Mary Bonauto’s case, Gill, in 2010, the stakes for the Obama administration rose sharply. The Justice Department had been defending DOMA in the proliferating challenges. Would it now appeal a federal ruling of unconstitutionality, arguing that it must defend a law because it’s constitutional in order to argue that the law is constitutional?
Get Equal: The Bottom-up Strategy
Democratic National Committee critic and partner of former DNC employee Donald Hitchcock, Paul Yandura, was loving this. When Fresno rally organizer Robin McGehee turned up in Washington in 2009, Yandura was ready for some insurgency. Like Yandura, McGehee had had a Cinderella rise. During the Prop 8 battle, lesbian mother McGehee had been an increasingly visible voice of the gay and lesbian community in her little California town. After Prop 8 passed, the priest at her son’s private Catholic school asked her to step down as president of the PTA. As McGehee was organizing a rally in the Central Valley, where she felt the California gay establishment had done little to support the local activists, she also had to find a new school for little Sebastian. The cost to her family enriched the fuel of her indignation as little else could have done. When she heard Cleve Jones speak at a conference right after Prop 8, she asked him if he would come to her little rally. An unheard-of five thousand people showed up.
Jones figured he had found a natural. When David Mixner put out a call on his blog in May 2009 for a national march—the first in decades—on Washington, Jones asked McGehee if she would help organize it. “Be the mom,” he said. “So I can be just Uncle Cleve.” When McGehee needed some money to pay for scholarships to come to the march, someone put her in touch with Yandura, who had long had the ear of the gay heir to the Progressive Insurance fortune, Jonathan Lewis. Lewis, “the only lone wolf,” as McGehee says, in gay philanthropy, started funding the insurgency.
Around a quarter of a million people showed up at the march. Not by chance, the insurgents arrived at the National Mall on October 11, 2009, the day after Barack Obama’s appearance at the Human Rights Campaign (HRC) dinner. The local production of Hair closed its doors and sent the cast to sing for the new rebels: “Let the Sunshine In.” A few months later, Jonathan Lewis pledged to pay for a meeting of all the new factions at the legendary Highlander civil rights center in Tennessee. They would learn to do direct action and civil disobedience all over again. The Highlander meeting gave birth to a new group, GetEqual, led by McGehee and another California youngster, Kip Williams, and dedicated to direct action for LGBT rights.
But even as the new insurgents marched in October 2009, ten months into Barack Obama’s presidency, the administration was still defending DOMA. Despite a clear and unequivocal commitment to repeal don’t ask/don’t tell in the Democratic platform and during the campaign, the Democrats had let the Defense Authorization Act go through Congress in May without a murmur about DADT. Less than a month after the March for Equality, that November, the people of the state of Maine did exactly what California did and passed a referendum reversing the law authorizing same-sex marriage, which the Maine legislature had just passed the year before. This time, the loss came after a campaign that presented the real faces of same-sex couples, as the critics of the California campaign had suggested. No help. Schubert Flint put up the schoolchildren and the thing went down like déjà vu all over again.
It was a watershed moment in the movement. All the pieces were in place. Activists in the blogosphere and beyond were clear on the fact of their difference. A critical number of movement players were unambivalent about their moral rectitude. They were disabused of the reliability of their so-called progressive allies. They were acting up. But nothing changed. The old folks from ACT UP and the insurgent youngsters were singing songs from Hair and the establishment gays from HRC were dining with the president. All social movements come to an end eventually and all end short of their goals. Was this the end?