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I Do, I Do

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Diana Walker/American Foundation for Equal Rights
Theodore Olson and David Boies, who led the victorious challenge to California’s ­Proposition 8, which had declared that only marriages between a man and a woman were legal

And then came the demand for gay marriage. At first many gay progressives (including me) frowned on this initiative, since it seemed only one more example of assimilation. But we began to see that it was a cause worth fighting for. If bigots oppose gay marriage so vehemently, it must be because marriage is a defining institution for them; gays will never be fully accepted until they can marry and adopt, like anyone else. It also seemed frivolous to object to same-sex marriage on any grounds, since permitting it would have a direct positive impact on countless ordinary families. As the lawyers David Boies and Theodore Olson put it in Redeeming the Dream:

We had said from the beginning that we intended to prove three things: first, that marriage was a fundamental right; second, that denying gay and lesbian citizens the right to marry seriously harmed them and the children they were raising; third, that same-sex marriage did not harm heterosexual marriage.

The culmination of a long struggle was 2013, which could clearly be labeled the Year of the Gay. State after state had legalized gay marriage, despite intense opposition from the religious right. The Defense of Marriage Act (DOMA) was struck down by the Supreme Court; as a result, legally married same-sex couples, no matter where they were living, could file federal taxes jointly, even retroactively. Don’t Ask Don’t Tell, the antigay policy of the armed forces, had been reversed in 2011. The Boy Scouts caved: gay boys can now become Scouts (though openly gay adults cannot become Scout leaders). In France (despite a surprisingly active opposition) marriage equality was legalized, as it was in many South American countries. The claims of conversion therapy, which had promised to turn gays straight, were renounced, even outlawed in some places.

Gays were never so visible—in politics, on television, on Facebook. It was no longer on to be discriminating against lesbians or gays. Comedians publicly apologized for using the f— word in a moment of anger. And gays were so prevalent they were becoming much more choosy about politicians; the openly lesbian New York City mayoral candidate Christine Quinn lost the gay vote to Bill de Blasio (whose black wife proudly announced that she had been a lesbian before her marriage).

AIDS had won gays sympathy; they no longer seemed the privileged brats that the general populace had resented in the 1970s. The disease had willy-nilly outed gays of all social classes and colors; whereas in the 1970s only young white men had, for the most part, dared to come out, now poor gays and rich gays and old gays and ghetto gays were all visible—and they were suffering from a terrible fatal disease. In 1996 triple retroviral therapies were introduced and the death rate from AIDS plummeted. Whereas in the 1980s hospitals were overflowing with terminal patients and the names of the AIDS deceased crowded the obit pages, now it seemed that few people were dying—in the first world where the life-saving drugs were affordable. This past May the dedicated HIV/AIDS ward in Vancouver closed due to a lack of patients. In the third world, however, the death rates—of men and women, straights and gays—were soaring. In 2012, over 35 million people were living with HIV/AIDS, 69 percent of them in Sub-Saharan Africa and most of them heterosexual.

If legislation in the US was mostly favoring gays, especially gay couples, in Russia, the Muslim world, and black Africa, opposition to gays was on the upswing. In every case bigotry could be attributed to religion, whether Russian Orthodoxy, shariah law, or African Christianity. American born-again right-wing federal legislators were feeding the religious frenzy in Africa (Uganda was even contemplating a kill-the-gays law); they must have recognized that their evil program had been defeated in America and that African religious conservatives provided them with the last chance to realize their fascist dreams. I say “fascist” advisedly since the Nazis were always banging on about the virtues of virility and the dangers of homosexual “decadence,” and they put gays in concentration camps.

Why did mainstream America come to accept marriage equality? Gay leaders had made a convincing case that gay families were like straight families and should have the same rights. The American spirit of fair play had been invoked. Gays had converted many people to the belief that they constituted a minority—like Jews or African-Americans or Asians. It was a strange sort of minority, truth be told, to which one’s parents didn’t belong and which was made up mostly of members who could “pass.” It was more an identity than a minority, an identity that one could assume at age six or sixty or never.

A large part of the acceptance of gays depended on the notion that they didn’t choose their sexual identity but that it was somehow genetically determined. Most out gays in the 1970s would have resented the genetic argument; we didn’t want to think our orientation was glandular but—what? Chosen? We didn’t like that option, either—we couldn’t pinpoint the moment we’d “chosen” to be gay. We decided back then that all theories about the origins of homosexuality were prejudicial. No one theorized about how children became heterosexual, we argued, which seemed equally mysterious. We said that if one got pulled into an argument about what caused homosexuality, nature or nurture, gays would always lose.

Defensible as that position seemed to us then, the genetic argument has in fact persuaded mainstream America to accept us. If the poor buggers can’t help being pansies, then why persecute them? You might as well persecute someone for the color of his skin.

At the same time gender boundaries became more and more porous. Transvestites and transsexuals became more common; in Germany a new law recognized that babies at birth can even be assigned to a third, intermediary gender. On the one hand our sexual orientation seemed to be determined while our gender seemed to be utterly fluid and arbitrary and porous.

I can remember in the 1960s I had a boyfriend who liked to take my hand in public, which made me intensely uncomfortable, even in Greenwich Village. Now it’s no big deal.

Of course there was a long history of lesbian and gay legal battles, well summarized in Law and the Gay Rights Story, a book that deals with many issues other than the right to marry: the workplace, freedom to serve in the armed forces, freedom from violence, freedom for open gays to teach in public schools. Between 2004 and 2013 the number of Americans who would be upset if they had a gay child fell from 60 percent to 40 percent—a remarkable transformation in less than a decade. The greater visibility of gay celebrities (such as Ellen Degeneres) and the higher profile of gay films (such as the Academy Award–winning Brokeback Mountain) and TV shows (such as Will and Grace and Modern Family and Glee) and plays (such as Angels in America and The Normal Heart) undoubtedly contributed to this change of heart.

The battle for gay marriage intensified after the passage of Proposition 8, a confusingly worded referendum in California declaring that only marriages between a man and a woman were valid. The case attracted the attention of Theodore Olson, the conservative lawyer who had won the Supreme Court battle of Bush v. Gore. He regarded the gay marriage issue as one of equal protection under the law, and he recognized that this was the civil rights struggle of our day. As Jo Becker writes in Forcing the Spring, he said he was honored to represent lesbians and gays and offered to do so at a discounted rate of $2.9 million plus expenses, even though he got considerable blowback from conservative friends, who objected on religious or constitutional grounds.

The people behind the legal battle were Chad Griffin, a gay political consultant and now head of the gay civil rights organization Human Rights Campaign, and his friend and business partner, Kristina Schake. They teamed up with two of their clients, the movie director Rob Reiner (When Harry Met Sally) and his wife Michele, both long-standing advocates of civil rights. The team was completed when they were joined by David Boies, who’d represented Gore in the Supreme Court. The “odd couple” aspect of the Boies-Olson partnership drew a lot of press attention.

The decision to challenge Prop 8 in the courts did not sit well with the established gay leadership, who felt that an adverse decision could set back gay rights by decades. Their motto was “Make Change, Not Lawsuits,” and their agenda was to fight for the passage of marriage equality laws state by state. Of the court fight over Prop 8, Jennifer Pizer of Lambda Legal told The New York Times, “We think it’s risky and premature.” When they realized that the Boies-Olson team was going to move ahead anyway, several gay rights groups wanted to join in, but the lawyers refused them, saying they did not want their cause to be “balkanized.” They knew about ferocious gay in-fighting. In the end only the City of San Francisco was permitted by the judge to file an amicus brief.

The judge on the District Court for the Northern District of California who heard the case was Vaughn R. Walker, a sixty-five-year-old Reagan appointee whose nomination had been violently opposed by the gay community. Somewhat surprisingly, he turned out to be gay, which those opposed to gay marriage said should have led him to recuse himself, though most people in the legal profession thought his orientation was irrelevant. (Would an African-American judge not be allowed to hear a case involving racial prejudice? Should a judge who has been raped never be permitted to hear a sexual assault case?)

Walker wanted to televise the proceedings, since they might be instructive to the public, but the Supreme Court forbade cameras to enter the courtroom, not wanting to subject its own deliberations by extension to the glare of publicity. This was not a jury trial; the judge alone would decide. Though television was banned, the whole team made sure that every stage of the trial was well publicized, since one of their main goals was education of the public.

Boies and Olson found as plaintiffs a model male couple and a model lesbian couple, Californians who, they correctly thought, would stay together and bear up under the strain of cross-examination over what turned out to be four years, and who sincerely wanted to be married, for the dignity of the institution and not just for the fiscal benefits. The two women were also raising children.

The lawyers lined up expert witnesses who would help them establish several points: that homosexuals had been severely mistreated throughout history and were even now a persecuted minority; that the people who had promoted Prop 8 were motivated partly by malice; that children raised by a loving same-sex couple could grow up normal and healthy; that homosexuality was not a lifestyle choice but an unchangeable orientation; that same-sex marriage would not discourage heterosexual couples from getting married; that marriage carried a dignity and societal prestige not conferred by domestic partnership.

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Jerome Sessini/Magnum Photos
A pro–gay marriage march, Paris, January 2013

Some of these points might seem self-evident or absurd or of minor importance, but the law, engaged as it is with precedents, must sometimes address bizarre questions. And the sponsors of Prop 8 had made some strange claims. The lawyer defending it, Chuck Cooper, could only produce two experts (whereas the plaintiffs called seventeen), and those turned out to be unsatisfactory. One, who claimed to have read a vast array of studies proving that gay marriage would be damaging, admitted under cross-examination that most of his bibliography had been assembled by his lawyers and he’d not consulted all the documents.

The second witness was David Blankenhorn, who lost steam when he had to admit that his degree from Warwick University was granted not for his study of marriage or families, but of nineteenth-century cabinetmakers. He ended up expressing ideas that helped the pro-marriage equality side:

I believe today that the principle of equal human dignity must apply to gay and lesbian persons. Insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were on the day before.

Blankenhorn also agreed that there was no scientific evidence that children suffer from being raised by people of the same sex.

Even Cooper made a damning admission. When Judge Walker asked him, with regard to gay marriage, “to tell me how it would harm opposite-sex marriages,” Cooper said the fatal words, “Your Honor, my answer is: I don’t know. I don’t know.” What he meant to argue was that we have insufficient evidence of the long-term effects of gay marriage, but his actual answer was seen as an admission of defeat.

The plaintiffs needed to prove that there had been malice toward gays behind the campaign for Prop 8, which was easily established by looking at its scare-tactic television spots and by requisitioning its internal e-mails. These documents showed that the Catholic Church and the Mormons, ancient foes of homosexuality, had raised $37 million to support Prop 8. One of the most prominent sponsors, Bill Tam, a Chinese-American evangelical minister, was highly evasive but finally admitted that he had made public statements to the effect that gay marriage would lead to pedophilia, incest, and polygamy. He even said in a pamphlet that if Prop 8 lost, “one by one, other states would fall into Satan’s hand. What will be next? On their agenda list is: legalize having sex with children.”

Eventually, Tam half-admitted that there was no scientific evidence substantiating his points. The examination of him was so aggressive that one of the lawyers defending Prop 8 became indignant: “For the first time ever in an initiative process, a supporter of an initiative has been put on the stand to be examined about his political and religious views.” It was certainly true (if impolitic to say) that the three great monotheistic religions had been the most intolerant institutions against homosexuality throughout history.

Boies and Olson were able to invoke some important Supreme Court decisions to bolster their case. Loving v. Virginia (1967) was the most relevant. It had ended the ban on miscegenation and had found that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” This decision was extremely helpful to the plaintiffs. In Romer v. Evans (1996), the Supreme Court had struck down a Colorado amendment to the state constitution, approved by voters in a referendum, that had stripped lesbians and gays of certain civil rights protections. In Lawrence v. Texas (2003) the Court had struck down a Texas law criminalizing sodomy since it violated the Constitution’s due process clause, which says that the government may not “deprive any person of life, liberty or property, without due process of law.”

One of the most damaging statements against same-sex marriage had been made by the Supreme Court Justice Ruth Bader Ginsburg, who had said that Roe v. Wade had been decided prematurely, before the country was ready for it. Perhaps, it could be argued, the country was similarly not prepared for gay marriage.

But the country was changing its mind at an astonishing pace. Ken Mehlman, a powerful gay figure in the Republican Party, joined the cause and staged an impressive fund-raiser. Obama’s opinions were “evolving.” Polls showed the rapid and widespread public change of heart. “This is the most significant, fastest shift in public opinion that we’ve seen in modern American politics,” an important Republican pundit said. At the same time there was a new wave of teenage gay suicides that proved that something needed to be done.

The closing argument in the Prop 8 case was heard on June 16, 2010. Two months later, Judge Walker handed down a decision that was a sweeping victory for the proponents of gay marriage. He wrote that “Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite sex couples…. This belief is not a proper basis on which to legislate.”

When the case appeared before the Supreme Court, it was joined by another on the Defense of Marriage Act. An elderly American woman, Edie Windsor, had legally married in Canada in 2007 another woman, Thea Spyer. Thea had died, Edie had been hospitalized with grief, and when she emerged she found that she owed the federal government $363,000 in estate taxes (had she married a man she would have owed nothing). Edie challenged DOMA on the basis that it treated married same-sex couples differently than heterosexual couples.

She won her case and toppled DOMA. There were some remarkable moments; for instance, when Cooper insisted that the purpose of marriage was procreation, Justice Kagan asked that if that were the case, would it be constitutional to deny marriage to straight couples over fifty-five? When Cooper had claimed such a couple might be fertile, Kagan assured him that “there are not a lot of children coming out of that marriage” if both partners are over fifty-five.

Uttering another memorable phrase, Justice Ginsburg observed that in the US there was “the full marriage and then this sort of skim milk kind.” In another discussion Justice Scalia demanded to be told at what precise moment denying marriage to homosexuals had become unconstitutional. As Boies and Olson argue in their amazingly lucid book,

The Court has never inquired, nor could it establish a precise moment in time, when it became unconstitutional to require students to recite the Pledge of Allegiance, or to pray in school, or to use different drinking fountains.

On June 26, 2013, Justice Kennedy, in his majority opinion, found that DOMA was invalid and noted that the law served to “disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Edith Windsor had the $363,000 she had paid in estate taxes restored plus interest. All legally married same-sex couples would be fully recognized by the federal government and would enjoy now some eleven hundred federal benefits they had previously been denied.

At the same time the Court, while clearing the way for same-sex marriage in California, left for another day the question of whether homosexual marriage must be legalized in all states where it was still banned. On the same day the Court had declared the Defense of Marriage Act unconstitutional but had ducked the larger question of national acceptance of same-sex marriage. A triumph for Boies-Olson, if a mitigated one.

The blowback to Jo Becker’s book has been considerable, especially from gay bloggers such as Dan Savage and Andrew Sullivan. As early as 1989 Sullivan had published an article in The New Republic giving the conservative case for gay marriage, formulating arguments about the value of family life that were later used by pro-gay theorists. Becker has been accused of the sin of “access journalism” by Sullivan (crediting all gay-marriage victories to Chad Griffin and the Boies-Olson team, because they gave her full access to their deliberations). She has clearly overlooked the major contributions of such pioneers as Evan Wolfson, who in 2004 published the groundbreaking Why Marriage Matters: America, Equality, and Gay People’s Right to Marry, and Mary Bonauto, a lawyer who won same-sex couples the right to civil unions in Vermont in 2000. That was a considerable first victory in a campaign that has led (at present) to same-sex marriage in seventeen states and the District of Columbia. And counting.

On the last page of Redeeming the Dream, we are told that Americans are accepting “gays and lesbians…as normal, loving, decent members of our lives and our communities.” I shouldn’t quibble, but as a gay man in his seventies I don’t quite recognize in that description most of the flamboyant, creative, edgy, promiscuous, deeply urban gays I have known. Kenji Yoshino, a law professor, wrote a book called Covering: The Hidden Assault on Our Civil Rights in which “covering” is seen as downplaying a discordant trait in order to blend into the mainstream. It seems to me that gays are in danger of “covering” in order to obtain the permission to marry. Perhaps that’s a small enough price. I can’t decide.


An earlier version of this article stated that Vaughn R. Walker was a judge on the Ninth Circuit. Walker was chief judge of the District Court for the Northern District of California. The text has been corrected.

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