Victory: The Triumphant Gay Revolution - Linda Hirshman (2012)
Chapter 12. Victory: The Civil Rights March of Our Generation
On March 20, 2009, infantry lieutenant Dan Choi, fresh from his tour of duty in the Iraq War, appeared on MSNBC’s Rachel Maddow Show.
“I’m gay,” he announced. And I’m not lying anymore.
Not more than a week later, New York’s young, newly appointed senator, Kirsten Gillibrand, heard from one of her girlfriends from her law practice days.
“I want you to meet one of my clients. Dan Choi.”
The Soldier and the Girl (Senator)
West Point graduate, Iraq War veteran, trained Arabic linguist, Dan Choi was a movement dream. Trying, again, to move the least liberal institutions in Western society, marriage and the military, the movement task was to claim the goods of sacrifice and heroism for the historically denigrated gay population. Who better suited to do the job for the movement than a tall, handsome young soldier?
“I want nothing but to serve my country and even die for my country,” Choi told the senator. “I believe in its values. Everything about the military is about honor,” he said, “except if you’re gay.”
“What a horrible way to live your life,” thought Gillibrand, a young wife and mother herself. “I cannot imagine being in any job without being able to tell my coworkers and my colleagues about my husband or my children or what I do on the weekend or the other things that are most important to me.”
A couple of months after Choi’s appearance, California’s online progressive organization, the Courage Campaign, scooped up the articulate Lieutenant Choi and organized a demonstration at an Obama fund-raiser in Los Angeles. The Courage Campaign, which sprang from founder Rick Jacobs’s experience with the new-media Howard Dean campaign in 2004, gathered a hundred thousand signatures online asking Obama not to discharge Choi. At that first demonstration, Choi debuted his signature move—he stepped beyond the protesters who had been obediently observing the police no-protest zone and stood saluting the commander in chief as the cameras snapped. When safely inside the event, President Obama worked the friendly crowd, musing aloud about what the protesters could possibly be demanding, but the next morning Choi was all over the news.
Gillibrand’s office launched an online-story project. The senator from the memoir generation understood how to present the movement’s romantic, moralistic issue: “Dan Choi’s story had an overwhelming impact on me, inspiring me and infuriating me,” she explains. “We had about a dozen stories from people who were the victims of DADT and thousands more signed petitions to repeal it.” (Gillibrand also realized that she could pitch repeal as a straight story of military readiness. Losing all those good soldiers could not be good for the country’s defense.)
When she started, Gillibrand assumed that one of the ninety-nine senators senior to her was already actively working on the issue. After all, there had been bills to repeal don’t ask/don’t tell hanging around Congress for years. Turns out, Senator Ted Kennedy, who had been point man on repealing DADT, was dying, and Gillibrand knew that in the time he had left, he would not be diverted from his role in health-care reform. So this newest senator wrote a bill designed to be complementary to existing bills, in this case to have an eighteen-month moratorium on discharges.
Gillibrand was not surprised that she was leading an eminently winnable fight. “Gay rights is a generational issue,” she believes. “It is the civil rights march of our generation. We have lived very different lives than our older colleagues; we have friends who are gay throughout our entire educational life. We have friends of my generation who are now raising children, making a very different profile of gay families today.” And the personal is still the political. “I also had a number of friends in my law firm,” Gillibrand says. “Gay friends who I spent my vacations with when I lived in New York. They were my family away from home so their lives and their loved ones are very important to me.”
The path for the new civil rights march had been well laid. Maybe the supposedly liberal California electorate and the supposedly liberal politicos at the White House wouldn’t help them, but the tide was turning anyway. In the early nineties, the incendiary controversy around marriage and the military had cost the gay revolution dearly. While the “morality politics” defeats outside the liberal state were piling up, however, the civil rights victories of the 1990s and early 2000s moved gays and lesbians into the sphere of normal citizenship in the liberal state. By 2009, the polls were overwhelmingly in favor of allowing gays to serve.
And so, as Gillibrand met with more and more senators, she realized there was more support than people thought. This included Carl Levin, powerful chairman of the Senate Armed Services Committee, which would eventually have to hear the matter. “I’m with you,” Levin said. “Just keep me posted.” She even got encouraging words from her gal pals across the aisle, senators Susan Collins and Olympia Snowe. She submitted her legislation. Thanks in part to Rachel Maddow and Lieutenant Dan Choi, the media were actually paying some attention to the issue, and a reporter cornered Majority Leader Harry Reid.
The Nevada senator, who had met Dan Choi at a Human Rights Campaign (HRC) black-tie dinner in Las Vegas, didn’t think the army should kick out an Arabic linguist, or anyone else the country needed, for that matter. He said he supported full repeal and wrote a letter to President Obama asking him to help. In January 2010, Obama put the repeal of DADT in his State of the Union address.
Gillibrand asked Levin, chairman of the Senate Armed Services Committee, to hold a hearing on DADT, and, to her delight, he agreed. The February hearing was the first such meeting in sixteen years. Aubrey Sarvis, the deceptively mild-mannered former army sharpshooter and telecommunications lobbyist who had been running the Servicemembers Legal Defense Network (SLDN) for four or five years at that point, says the hearing was the turning point. When the chairman of the Senate Armed Services Committee calls, the Pentagon listens. Secretary of Defense Robert Gates and Chairman of the Joint Chiefs Admiral Mike Mullen had to appear and they had to take a position on DADT. The days of quizzical or genial rhetoric from the commander in chief were numbered.
The hearing was the tip, but SLDN was the iceberg. In its decade and a half of compelling the military to recognize the personhood of its members, gay or not, SLDN had won the respect of the military establishment. Leaders like Michelle Benecke had even been invited to lecture at the military training colleges. In 2009, SLDN had arranged a meeting between Admiral Mullen and straight movement allies Admiral Jamie Barnett and General John Adams. Sarvis, well aware of the role of romantic stories in the fight for acceptance in a premodern institution, sent an SLDN board member, retired Navy captain Joan Darrah.
Like so many of the pivotal people in the battles, Darrah, a naval intelligence officer, had a great story. In her third decade of closeted service, she went to a meeting at the Pentagon. Minutes after she left the building on 9/11, the third terrorist airplane slammed into the room where she had been meeting, killing seven of her colleagues. Having concealed her relationship, Darrah realized that had she died there, her long-term partner would have found out about her death on CNN. A few months later she retired. “Joan led the discussion at the meeting with Admiral Mullen, and talked a lot about integrity,” Sarvis reports. At the committee hearing a year later, Mullen told Congress, “For me personally it comes down to integrity—theirs as individuals and ours as an institution.” “When Admiral Mullen said, ‘This policy undermines the integrity and effectiveness of the service,’ ” Senator Gillibrand thought, “Omigod, we’re going to repeal don’t ask/don’t tell.”
But no. First, the White House told the junior senator it wanted Connecticut independent senator Joe Lieberman, a moderate and a senior person on the Armed Services Committee, to be the leader on this. So, Gillibrand recalls, she just asked Senator Lieberman almost daily for about two months to cosponsor the bill with her. “Having Senator Lieberman really made a difference,” she graciously concedes. Maybe. But the bill just sat there. The military asked for ten months to do a study before the administration would get behind a repeal bill. That would put the repeal squarely at the end of the crowded congressional session in December 2010. The establishment gay organizations, including SLDN with reluctance, agreed to all the military demands in order to get a bill passed even conditioned on the outcome of the study. Still the Senate stalled.
Since the crucial last senators would not sign on until the Pentagon was satisfied, the military held all the cards. Sarvis got wind of Pentagon lobbyists telling senators not to move on the bill. There were rumors that the president leaned on Gates to speed things up, and that he threatened to quit. Led by the indefatigable Speaker Nancy Pelosi and the House Majority Leader Steny Hoyer, the House of Representatives actually did include provisions repealing DADT as part of the 2010 National Defense Authorization Act (NDAA). Pelosi, it is reported, said no one had asked her to make a deal with the Pentagon. Activists remained hopeful that when the NDAA reached the Senate the repeal would pass with it.
But then the polling data that showed a Republican takeover of the House of Representatives in November 2010 began to roll in, and the Republicans decided they wouldn’t join with the Democrats to pass anything, not even, for the first time, the National Defense Authorization Act. Dan Choi announced he was going on a hunger strike, but no one paid him any mind. It was summer 2010. A conservative political train was coming, and the beautiful young senator and the courageous young soldier were tied to the tracks.
Just when it seemed that all might be lost, the movement’s federal-litigation initiative suddenly bore fruit. In 2004, inspired by the Supreme Court’s decision protecting homosexual sodomy, an organization of gay conservatives, Log Cabin Republicans, had sued to challenge the constitutionality of DADT. In July 2010, Judge Virginia Phillips, a bespectacled Jane Austen–loving widow and Democratic appointee to the federal bench in California, struck down the law as unconstitutional and issued a nationwide injunction against its enforcement. Coincidentally, eighty-year-old Nixon appointee Joseph Tauro, of the US District Court for the District of Massachusetts, struck down the Defense of Marriage Act in Gill v. OPM. And California federal trial judge Vaughn Walker, the seventysomething, long-closeted homosexual protégé of the first George Bush, handed Boies and Olson the predictable constitutional victory on Prop 8.
The decision-laden summer of 2010 dealt a serious blow to the conservative strategy of excluding gay and lesbian citizens from the sacred precincts of love and war. As the decisions protecting gays’ political rights in Romer and privacy in Lawrence reflected, the courts are important guardians of the liberal bargain. For reasons nowhere set forth in the document, however, the courts have long had a hands-off policy toward enforcing the constitutional principles of the liberal state to marriage or the military. When deciding challenges to military decisions, the courts extend a level of deference toward the military to control its own affairs unequaled in the rest of the constitutional scheme. On matters of the heart, it took thirteen full years after the Supreme Court struck down segregated schools for the court to forbid racial segregation of marriage. Even after they belatedly defined marriage as a fundamental right, the federal courts for years refused to become involved in domestic-relations cases otherwise within their jurisdiction; the policy was simply called the “domestic-relations exception.” No authority required. Feminists speculate that the domestic-relations exception survives because federal judges do not consider women, otherwise citizens, to be citizens within marriage. With the courts forgoing their role as constitutional cops, the government-regulated realms of marriage and the military survived as relics of an unfree, unequal illiberal past long after the courts had played a role in imposing basic liberal values in the rest of the state.
But as the summer of 2010 revealed, it could not last. Citizenship in the liberal state confers a powerful dose of dignity on the people included. They are not animals, to be attacked or killed for sport: their lives are valuable. They are not crazies: they are entitled to rational pursuit of their self-interest in the democratic process. And they are not felons: their human intimacy is of constitutional status. Marriage and the military are different, but they are not completely disconnected from the rest of society, and ultimately they are answerable to the principles of the Constitution. The court did finally strike down the remaining laws against interracial marriage. The more gay and lesbian Americans took on the aspects of normal citizenship in the liberal state, the more incoherent their exclusion from even these remote precincts of modernity seemed.
So far had the gay revolution come that the lawyer for Log Cabin Republicans, a straight white Republican partner in the huge corporate law firm White and Case, had no qualms at all about leading the challenge to DADT. Dan Woods denies that he’s in a category with heroes of social change like Thurgood Marshall. He says he finds his advocacy perfectly consistent with his conservative principle that every man should be treated strictly on his own merit. Anyway, the plaintiffs were Republicans: the gay political group, Log Cabin Republicans.
In the perfect logic of the constitutional system, Woods could have rested his case on the thirty or more years of studies all concluding that openly gay participants would not harm the military. But Woods had digested the lesson from the failed past efforts to extend the constitutional norms into areas of love and war. Like Senator Gillibrand in Congress and the activists from SLDN, Woods believed he needed the romance of their gallantry.
Luckily, among the many victims of DADT eager to tell their stories to the federal judge, Woods had the gallant Major Michael Almy to put on the stand. Major Almy, whose father and two uncles were career military, joined up in 1993 with a valuable skill in information technology. A decade later, when Almy finished his third deployment to Iraq, he left his government computer behind. The next person to use it decided to open his private e-mail file. (As an information specialist, Almy knew no one was ever supposed to read his e-mail.) There, amid hundreds of e-mails to his mother, were a handful of e-mails reflecting a same-sex relationship. Major Almy, festooned with awards and medals and trailing the unstinting praise of superiors and inferiors, was discharged from the service. His next major public appearance was as the first example in Judge Phillips’s sweeping opinion striking down DADT.
The government got a reprieve in the military arena when the United States Court of Appeals for the Ninth Circuit stayed Judge Phillips’s injunction by a two-to-one vote of the three-judge panel and the Supreme Court affirmed the stay. The stay only applied, however, until the appeals court ruled on the government’s appeal of the underlying ruling that DADT is unconstitutional. Since the Obama administration was firmly on record as opposing DADT, the administration held a trump card—it could stop defending the law and Judge Phillips’s order would become final.
The possibility that some court might actually just order the military to stop DADT on a dime sent a chill down the back of the Defense Department. As the lame-duck Congress reconvened after the Republicans won a majority of the House in November 2010, Secretary Gates, who had resisted the provisional bill the previous spring, and Admiral Mullen held a press conference, fretting publicly about the dangers in a court-ordered repeal. In early December they leaked the favorable report and then released it publicly before the lame-duck Congress could go home, taking with them the last chance for a legislative repeal.
Aubrey Sarvis puts it baldly, “I don’t care what anyone says, no one had a secret plan to have two votes in the lame-duck session after the Democrats have lost control of the House.”
In the years since the 2008 election, the gay revolution has often seemed more like a silent movie serial than a well-planned political campaign. This is actually not surprising. As Senator Gillibrand found out when she took up repealing DADT, a critical portion of elite decision makers were on the gay side. But the racial and feminist movements have deep roots in American history, high visibility in a racially diverse world, and a substantial presence in the electorate. The people involved in the gay revolution, a tiny minority of voters and with comparatively small resources, struggle constantly to make a majority of legislators, however sympathetic, consider them a priority. This tension produces one cliff-hanger after another. Sarvis thinks, for example, that there were people around the president who would have been okay with DADT going over into the next Congress, which was tantamount to complete failure.
In repealing DADT, then, the movement benefited, as it often had, from a relatively small handful of committed allies. As the clock of the lame-duck session ticked toward recess, the core DADT-repeal activists, Gillibrand, Collins, and Lieberman, along with the scion of the legendary progressive Udall clan, Colorado senator Mark Udall, were meeting every day. At one point they even threatened to hold the Senate over Christmas.
After several near misses, on December 9, Joe Lieberman and Republican Susan Collins introduced the repeal as a stand-alone bill, stripped from the larger NDAA. The change in format meant that the House would have to pass another bill. All day, every day of the weekend of December 10, House Majority Leader Steny Hoyer worked the phones of the senators, to be sure that there really were enough votes to break a filibuster and repeal DADT. Despite the sky-high approval numbers in the polls, gay rights were toxic for so long it seems that he worried about his surviving House Democrats taking what was seen as a politically risky vote for nothing. But, on Wednesday, December 15, former Army captain and Bronze Star–winner Democratic representative Patrick Murphy introduced and the House passed the bill repealing don’t ask/don’t tell. Early on the cold Saturday morning of December 18, Orthodox Jewish senator Joe Lieberman, whose religion forbids riding on the Sabbath, left his house in Georgetown to walk to the Capitol to vote. Reflecting the support that had long been there, the bill passed the Senate by sixty-five votes, five more than needed to break a filibuster.
It feels like a victory, but it pays to remember that it’s hardly D-day. This is what passes for a civil rights victory in the “civil rights march of this generation”—undoing the discriminatory law the government inflicted on itself in its orgy of revulsion in 1993. And even then the repeal probably would not have happened but for the lucky break that the parties couldn’t agree on some other issue, opening up enough time to pass the first federal gay equality measure in the history of the Republic.
And a Thousand Fathers
As the votes reflected, Congress, looking at a 67 percent approval rate for gay service, did not expect a negative response to repealing DADT. But everyone was surprised at the intensity of the praise. Newspaper editorials called it the only good thing to come out of the lame-duck session. Lawmakers returned to their districts to find their progressive allies showering them with kudos for their record-breaking action.
In the seventeen years since Sam Nunn led his camera crew into the shower room of the submarine, America had changed. Heck, even Sam Nunn had changed his mind about gays in the military, coming out for it (after he was against it in 1993).
And the military had changed. The youngsters who make up most of the armed services had, like Kirsten Gillibrand, grown up with openly gay people all around them. In the army a person can become a major while still in his or her thirties and even occasionally a full-bird colonel, one rank below brigadier general. By 2010, even the officer corps, which so totally commanded the loyalty of then Chief of Staff Colin Powell in 1993, was of a different generation. The officers were running an institution that had come to resemble the liberal state. Members of an all-volunteer force fighting two wars in 2010, they had experienced firsthand the difficulty of meeting their recruitment goals, competing with the market economy for the best and the brightest. They cringed every time they saw a great candidate turn away because they did not want to run the gauntlet of DADT.
Ironically, as the military became more modern, the gay revolution looked more traditional. Their second assault on the military citadel was not motivated primarily by a desire for a springboard to equality in civil society. Since 1993, the gay revolution had made great strides in the liberal state. Most of the gay and lesbian linguists and nurses and information technologists discharged from the military for violating DADT were perfectly capable of living openly and earning a living in the civilian society to which they were consigned. Serving openly in the military was their primary end, not the means to a more familiar civil rights goal. In this, the gay campaign for military service was a piece of the morally ambitious gay movement agenda. Not satisfied with rights alone, the end gays sought was honor, the honor of serving their country’s military. Congressional liberals lobbied their colleagues with conservative arguments that gay soldiers were good for national security. The moral self-confidence that has characterized the successful parts of the gay revolution from the beginning won the day. World War II veteran and movement founder Franklin Kameny, tossed out of the Army Mapping Service as a security risk half a century before, said it: Gay Is Good.
In the quest for honor, it was the soldiers who made the last push. Whether it was Dan Choi, who chained himself to the White House fence that spring, or less well-known representatives like Michael Almy or Joan Darrah, someone coming forward with a desire to serve was the most powerful motivator for the change. Choi stood in a line of people stretching all the way back to that moment in 1993 when veterans Michelle Benecke and Dixon Osburn pulled up chairs to borrowed desks and turned on their castoff computers to tell the stories of the gay men and lesbian women who only wanted to serve their country.
Ironically, the Pentagon actually triggered what it most feared, a court order to repeal. The repeal law allowed the Pentagon an open-ended amount of time to prepare their troops and certify to the president that DADT could be lifted. Seven months after Congress voted, the military still had not given the president the requisite green light. On July 6, 2011, the Ninth Circuit Court of Appeals, which was sitting on the appeal in the Log Cabin Republicans case, finally lost patience with the military and ordered it to stop enforcing DADT. The government was reduced to agreeing not to discharge anyone while it crept toward certification in order to stop the court from forcing it to immediately accept gay enlistees. The administration’s failure to close the deal even after repeal passed did not surprise one well-placed Senate staffer who had been watching the whole shebang. “The White House staff had to be dragged kicking and screaming the whole way toward repeal,” he says.
DOMA Is a Legal Orphan
A week or two after the Senate vote, HRC president Joe Solmonese went to a liberal fund-raiser in Los Angeles for Ohio Democratic senator Sherrod Brown. What were the straight progressive funders talking about? The senator’s role in repealing don’t ask/don’t tell. Best thing he’d ever done, they said.
New activists up against the fence, 2010 (Photograph by Talk About Equality, courtesy of GetEQUAL)
The progressives’ pleasure in what Congress had done put real pressure on Democratic president Barack Obama. The government was still defending the Defense of Marriage Act, and the time for appealing Judge Joseph Tauro’s ruling was approaching fast. Then in February, legal cupid Mary Bonauto filed the same lawsuit she had tried in Massachusetts, this time in the federal court in Connecticut. The funders were high-fiving and the blogosphere was waiting for Obama’s next move. Obama, who kept saying things like he was “evolving” in his position on gay marriage, would clearly have preferred to remain above the fray and just let ProtectMarriage.com and the rest suggest that marriage was a constitution-free zone. Polling in favor of same-sex marriage had not yet crossed the 50 percent mark and there was little electoral will in Congress to repeal DOMA.
But litigation, whether ultimately successful or not, plays a crucial role in a social movement. The minute the gay activists started forcing the government to articulate why gays and lesbians should be excluded from marriage in the secular and reason-driven precincts of the courthouse, the Defense of Marriage Act became a hot potato. It’s one thing to be silent in face of bigotry and another thing to express bigoted positions yourself. There was no neutral ground. The Obama administration had to figure out a way to drop it. And dropping it was a political act.
Gay activist and Obama critic Richard Socarides was watching with great interest. A few months before, he’d gotten a call to a meeting from some midlevel lawyers at the White House Office of Legal Counsel. He’d been such a big mouth about how Bill Clinton hadn’t defended a law he thought was unconstitutional, maybe he could help the current White House. WWCD? they wanted to know: What Would Clinton Do? Clinton, Socarides said, would have asked what the best outcome was—politically or policy-wise—and then whether it was legal.
On February 23, 2011, Attorney General Eric Holder sent a letter to Congress: the Justice Department will not be defending your law anymore. The administration tried its best to make the decision look like a neutral application of legal principles rather than a Clintonesque pursuit of the best political option the law allowed. It settled on the difference between Connecticut, where the new case was filed, and all the other cases. The federal court of appeals in the jurisdiction including Connecticut had not yet issued an opinion about how to treat discrimination based on sexual orientation. Believing that antigay discrimination was suspect, and absent binding precedent to the contrary from the court of appeals in Connecticut, Justice would have to ask the Connecticut federal courts to scrutinize the act closely. Justice did not believe the law could survive heightened scrutiny. The United States would stay in the case, the letter said, but the Justice Department was going to tell the court the law was unconstitutional. Congress would have to defend its own legislation.
Even the people—Socarides, blogger John Aravosis—who had been screaming the loudest for the administration to stop defending DOMA, were flabbergasted. Could it be that the president was a fierce advocate after all? On the right, Bush Justice Department alum and conservative legal blogger Edward Whelan wrote, “The Obama administration has been sabotaging DOMA litigation from the outset. Today’s action at least has the modest virtue of bringing that sabotage out into the open.” In the end, it looked like the political potato of defending DOMA had finally gotten too hot, even for cool hand Barack.
Although the movement had gotten no traction at all in getting the administration to work for repeal of DOMA, by forcing it to drop the defense of marriage in court, gay activists extracted a big deposit to the movement’s social capital. Whelan, who had been a Supreme Court clerk and official in the very political Office of Legal Counsel in the Bush administration, recognized exactly what was at stake in what may look like a somewhat technical matter: “The optics matter an awful lot politically and I think to the court, too.” It’s one thing to have the orderly, institutionally legitimate defenders (the “Justice” Department) of the presumptively legitimate law of Congress blessing the law when it’s challenged, and another to have defense of the law relegated to the arms of private hired guns.
Then, in a brilliant stroke, the movement took the fight to the next level—the legal profession. The Obama administration had waited until the election of a Republican Congress to decide to bail on the DOMA cases, and, not surprisingly, the House Republicans voted to have Congress take the case over from the Department of Justice. New speaker John Boehner went off to hire them a lawyer.
On March 23, Joe Solmonese, the president of Human Rights Campaign, sent a letter to the law firms that made the American Lawyer magazine’s biggest and richest list, the AmLaw 200. The House Republicans would be looking for a lawyer, he heard. “On behalf of the Human Rights Campaign (HRC),” he wrote, “I . . . urge your firm, if it is even considering taking that case, not to do so.” Don’t volunteer to be the next institution comparing same-sex marriage to bestiality. Reflecting the transformation of the legal culture, law firms had become among the best places in America for gay and lesbian employees, Solmonese pointed out. “The legal sector has the largest number of top-scoring companies in HRC’s Corporate Equality Index,” an annual measure of how equitably large private businesses in the United States treat their lesbian, gay, bisexual, and transgender employees, consumers, and investors. Don’t screw it up.
On April 18, Bush administration solicitor general Paul Clement, now a partner at behemoth firm King & Spalding, agreed to represent the House. Within hours, the firm, which had scored 95 percent on the HRC Index, heard from HRC: “The firm of King & Spalding has brought a shameful stain on its reputation in arguing for discrimination against loving, married couples.” The next day, HRC announced that it would take ads in mainstream and legal publications and send informational letters to the firm’s clients, organizations to which they had made charitable contributions, and the nation’s top law schools informing them of K&S’s decision to promote discrimination. E-mail and Twitter would start among HRC’s more than one million members and supporters. The blogosphere lit up.
On April 25, just as GetEqual was gathering its demonstrators outside King & Spalding’s Washington offices (SHAME ON YOU KING & SPALDING), King & Spalding announced it was withdrawing from its defense of DOMA and Paul Clement would be leaving the firm. Clement would go to Bancroft PLLC, a firm of eight mostly Bush-administration alums, and take his client with him. GetEqual demonstrators were marking up their placards with felt tip pens, SHAME ON YOU, ER, BANCROFT.
It was not clear at first whether Solmonese’s bold stroke had paid off. Quick as you could say, “To Kill a Mockingbird,” the political establishment, which had largely been silent on the matter, turned Paul Clement, the defender of the punitive and discriminatory Defense of Marriage Act, into Atticus Finch. Editorial writers compared Congress’s desire to defend DOMA in a civil suit to the right of a criminal defendant, presumed innocent, to counsel. TheNew York Times said that Thurgood Marshall, the legal architect of desegregation, was no different from his opponent John W. Davis, who defended the segregationist school boards. The Obama administration, obviously sensing an opportunity to demonstrate fealty to the rule of law after the transparently strategic decision to bail on DOMA, piled on. Attorney General Eric Holder lauded “great lawyer” Paul Clement for “doing what lawyers do when we’re at our best,” a sentiment reiterated by President Obama’s press secretary, and, astonishingly, by newly appointed Supreme Court justice Elena Kagan, in a marked departure from the discretion that normally governs the justices’ public pronouncements.
The legal arguments about why he shouldn’t ask law firms to turn down the DOMA case made no sense to Solmonese. “Even in the midst of the storm,” he says, “none of these process people was willing to argue that it was lawyering ‘at its best’ to defend racial segregation or that a firm should defend a statute forbidding women to practice law.” The way Solmonese saw it, the controversy had nothing to do with legal ethics. Everyone knows a law firm can turn cases away. They do it every day. For a half century, the gay movement had been asserting that mistreating and discriminating against them was not only illegal, it was immoral. Solmonese had just tested the limits of that core principle. The establishment wasn’t sure exactly whether gays had come far enough.
But sometimes just acting like you’re rich makes you rich. Like the new military, law firms needed to compete in the market economy for employees and for clients. Indignant King & Spalding lawyers leaked to the press that the superstar partner had neglected to take the obligatory step of submitting the contract to the firm’s business-review committee, which first learned of the controversial commitment from the media and when K&S’s furious gay and gay-sympathetic employees poured into their offices. Word was, signature-firm client Coca-Cola was not happy. Regardless of what the Times thought, it turns out, very few law students dream of being the man who defendedsegregation.
Solmonese ran into a prominent Washington lawyer at a cocktail party: “I hope,” the advocate told him, “you appreciate that from this day forward, the top two hundred law firms in America will never again go near anything that even remotely smells antigay.”
Rainbow Empire State
Still it looked like the classes versus the masses: life-tenured federal judges for same-sex marriage, the people of the state of California and the voters spooking the Obama political machine against. Marriage equality lost in heavily Democratic state legislatures in Maryland and Rhode Island. Then, popular New York governor Andrew Cuomo announced in May 2011 that he was going to lead the charge in the Empire State, something he had promised in his campaign. It’s hard to imagine that Cuomo was unaware of the hosannas that greeted the repeal of don’t ask/don’t tell. But same-sex marriage had just gone down to defeat in New York two years before and the state senate was again controlled by Republicans; it seemed like a long shot. Three months later, he signed the bill into law. The lights on the Empire State Building blazed red, yellow, green, blue, a rainbow of celebration.
Victory in New York involved every strength the movement possessed. By fiat of nature, everyone has a gay friend or relative. Cuomo’s girlfriend Sandra Lee’s brother was an out gay man. By all accounts, Cuomo ran a pitch-perfect operation. He pulled all the fractious gay organizations into one coalition, New Yorkers United for Marriage. The libertarian New York mayor, Michael Bloomberg, and the Republicans from Wall Street had all come to see gay and lesbian people as citizens and, as citizens, entitled to access to marriage, just as if it were a garden-variety institution of the liberal state. Gently coaxed by the governor, they put their clout and money behind the effort. Unlike the failed effort in the Democratic-controlled legislature in 2009, Cuomo controlled his own party, delivering every Democrat except the intransigently homophobic Reverend Ruben Diaz of the Bronx.
The legal profession helped. As Republican marriage supporter Mark Grisanti said on the night of the vote, “I am not here only as a Catholic. I am here with a background as an attorney through which I look at things and I apply reason.” Bill Smith, from the ubiquitous Gill Action, which, in 2010, had brought down three of the four vulnerable state senators who had voted against marriage equality in 2009, was just occasionally seen hanging out with the governor while the action went on. But even a glimpse of Gill’s Smith was probably a bracing experience for a vulnerable legislator. Four Republicans joined the Democrats to pass the bill.
Of course, New York is not Kansas, but the New York vote may be the turning point for this last, hardest-fought issue. It is still the media capital of the country. In one act, the New York legislature doubled the number of people eligible for same-sex marriages in America and pulled ahead of California for one of the first times since the gay revolution began. The vote revealed a dent in the previously unbroken Republican opposition to marriage. Polling consistently shows the members of the public have crossed the 50 percent mark in supporting the unions. The positive numbers in New York at the time of the vote were trending much higher.
And in a society ultimately committed to self-government, the masses matter. It completely violates the concept of the independent life-tenured judicial branch, but as Mr. Dooley said, the Supreme Court does sort of follow the election returns. When Justice Kennedy puts on his robes some morning in the 2012–2013 Supreme Court term, or whenever Gill or Perry or whatever case makes the inevitable appearance before that evenly divided court, he won’t be thinking he’s about to address an issue that could pass only in Massachusetts.
The Third Weekend in July
The New York law set the date for weddings to begin four weeks from passage: Sunday, July 24. Late that Friday, the media black hole for unpopular announcements, President Obama announced that the Defense Department had finally okayed the lifting of don’t ask/don’t tell. Open gay military service would begin in September.
Later that same night, Lieutenant Dan Choi lifted his saber over DADT-victim former drill sergeant Jeanette Coleman, and her bride-to-be, Kawane Harris, as they shared a kiss at their prenuptial celebration in his new apartment in New York. On Sunday, he was their bridesmaid.