An angry and very public tug of war has broken out among various camps claiming credit for pushing gay marriage to the tipping point in America. Fame and glory, in the philosopher’s words, tempt even noble minds. Remember the disturbing Nobel Prize competition around the AIDS virus or the polio vaccine? It took a summit between President Ronald Reagan and Prime Minister Jacques Chirac to overcome efforts by an American scientist to claim HIV away from Dr. Luc Montagnier at the Institut Pasteur. Dr. Jonas Salk’s battle with Dr. Albert Sabin was even more pandemoniacal, and only harmed their campaigns in Stockholm: Despite saving millions from paralysis and death, neither won a Nobel. But such preening is especially unseemly when it’s happening among civil rights activists—it’s like watching Thurgood Marshall elbowing Rosa Parks at an awards show.
In marriage equality, there’s no question that victory is within reach. Today, gay marriage is on the books in 19 states plus the District of Columbia, covering 44 percent of the American population. A decade ago, widespread same-sex spousal rights were but a distant dream as constitutional amendments banning gay marriage sailed through with huge electoral majorities in 11 states.
How we got from there to here is, of course, as complex and busy as any story of young love, and twice as messy. It traverses the early days of Gay Lib, the dark recesses of Karl Rove’s mind, a law school student’s early-1980s thesis paper, a wrenching scene in a Larry Kramer play, some secretive priests, and six chubby Hawaiians. But you wouldn’t get that impression from the recent cultural offerings that promise to chronicle that history. Instead, they salute a single insular—and mostly straight—team that drove the recent legal battle to overturn Proposition 8, California’s statewide voter initiative that denied same-sex marriage and nullified thousands of legal unions there. Interesting as that clash may be, it is far from the galvanizing event that an apparently coordinated high-profile media campaign claims.
The misinformation first gained ground earlier this year with the publication of Forcing the Spring: Inside the Fight for Marriage Equality, a book by New York Times journalist Jo Becker, who had been granted extraordinary access to the legal battle by its spin-savvy sponsors, which she repaid in hagiography. A closely related HBO documentary, The Case Against 8, followed in June, made by a team of filmmakers who, being embedded alongside Becker, were kept equally blind to the great big world outside that bubble. Both serve up the courtroom drama, which came to a conclusion last year, as though it were Brown v. Board of Education for the gay rights movement, and the single most important (or only) triumph in the game.
This is plain wrong, and given that a more objective view has yet to reach Barnes & Noble or Netflix, most of the people who know anything about this history have been pretty peeved.
Still, the Prop 8 lawsuit is a juicy story worth telling. It joined two of the country’s most famous attorneys, the conservative Theodore B. Olson and the progressive David Boies, who last appeared together as adversaries in Bush v. Gore but found common ground in this civil rights battle. The stated aim of their suit, Perry v. Schwarzenegger, was to reach the Supreme Court and, as with the famous interracial marriage case Loving v. Virginia before it, strike down restrictive laws in every state in the country.
On that score, they failed, although their efforts did kill Prop 8—no small victory. Instead, it was a concurrent case out of New York that struck down the so-called Defense of Marriage Act (DOMA) and established federal recognition of gay marriage for the first time last year. That case, brought by a lesbian lawyer and a lesbian plaintiff, was United States v. Windsor. It is mostly ignored in these insider accounts, which inexplicably give most of the credit for their accomplishment to Boies and Olson by inference.
More egregious is how these histories ignore the entire army of activists and romantics on the ground for decades, dismissing them as footnotes at best and narrow-thinking obstacles at worst. Most of them don’t even merit mention by name. Andrew Sullivan, a leading advocate for gay marriage, has led the backlash, calling the film “a hijacking” and the Becker book “a troubling travesty of gay history.” Chief among the slighted heroes are Evan Wolfson, an affable and brilliant activist who joined the fight more than 30 years ago while still at Harvard Law School, where his thesis laid out the constitutional argument—and strategy—that produced today’s victories; the lawyer Roberta Kaplan, who brought the victorious Supreme Court case against DOMA; and her 85-year-old client, Edie Windsor, one of the most charming accidental activists ever to land on the national stage. (She doesn’t even have a Wikipedia page!)
Now comes the third installment of the cringe-making Battle of the Matchmakers: Redeeming the Dream: The Case for Marriage Equality, by none other than Olson and Boies themselves. Their account differs from the others’ only in its inferior organization and execution. And their book is doubly offensive to the historical record, which perhaps is more understandable given their lawyerly tendency for absolutism and rhetorical zingers. “We have changed the world,” they grandly declare, by giving “us, and the country, a victory that would echo throughout history.”
In their telling, it all began one tumultuous November morning in 2008, in the Brentwood bedroom that Hollywood director Rob Reiner shares with his wife, Michele, both progressive activists. Just hours earlier, the pair had rejoiced at Barack Obama’s historic election. But their joy turned to sorrow with surprising reports that California voters had simultaneously adopted an amendment to the state constitution taking away gay marriage. Only five months earlier, a state court had established the right. Some 18,000 gay couples were married in the interim.
Proposition 8 had been fiercely contested. “Yes on 8” proponents, armed with money and manpower from the Mormons, among other denominations, waged a divisive and frightening offensive, equating same-sex marriage with child sexual recruitment. Pro-gay “No on 8” forces launched a wall-to-wall advertising war of their own. Financed largely by Hollywood and Silicon Valley moguls, they outspent the anti-gay forces, but it didn’t make a difference. Proposition 8 passed, 52 percent to 48 percent. Protesters took to the streets in scores of cities across the country, dismayed by the stinging loss.
Reiner, for his part, could barely leave bed for days, until his wife lured him out to a favorite lunch spot, the clubby Polo Lounge at the Beverly Hills Hotel. He asked two old friends—principals in the PR firm behind the losing side—to join them. The painful setback dominated their conversation. In the way one does when craving revenge while sipping too many mimosas, they concocted an ambitious scheme to ride an anti-Proposition 8 lawsuit all the way to the Supreme Court. But what legal mastermind, they wondered, might be willing to take them on?
At precisely that moment, in a scene from a Hollywood script, Michele Reiner gave a yoo-hoo to an old friend she spotted across the room. Kate Moulene, an event planner to the stars, scurried over for air kisses and, once up to speed, offered a wacky suggestion: Ted Olson, the conservative powerhouse who represented George W. Bush in the battle of the hanging chads. “He’s brilliant. He’s approachable. And I think he’ll help you,” she told them. She knew this, she said, because he was her former brother-in-law and still a good friend.
Reiner, who in another amazing twist had been with the Gores at their Washington residence on the night the Supreme Court ended the recount, was initially aghast, but soon warmed to the idea. Meetings were taken. Common ground was forged.
If Olson knew any gay people at that time, he doesn’t say so in the book. His motivation was respect for the great power and joy of marriage itself, which is something he obviously relishes personally—he’s on his fourth (one ended in tragedy: Barbara Olson was killed as a passenger on one of the planes on September 11). He describes his current spouse, Lady, as his “partner, collaborator, and muse,” someone he involves in every aspect of his life and work.
Marriage for him is a fundamentally conservative value. So is the idea of equality for gays and lesbians, he writes. “Who are we to say that their love is inferior, unacceptable, and, worst of all, against the law? That seemed to me wrong, without rational purpose, harmful, exclusionary, demeaning, and un-American.”
With Lady’s encouragement and approval from his children, he signed up with the Reiner team, defying the opprobrium that soon came from fellow conservatives. It was his idea to recruit David Boies. In the years since their famous match, the two had become close friends, an “odd couple” who shared an interest in fine wine and domestic bliss. Their families even vacationed together.
Boies, the progressive, had once volunteered with the Lawyers’ Committee for Civil Rights in Mississippi and continued battling racial discrimination. But he had little or no professional experience in the gay rights world, only personal friendships. He writes of the many lesbians and gay men he knew from life and work, including at the New York firm Cravath, Swaine & Moore, where I briefly served as his legal secretary, fresh out of college. (He would have no reason to remember me, and I scarcely recall him.)
But he honestly admits to squeamishness about gay marriage. “I didn’t reject the idea; it simply didn’t seem to come up,” he writes. “Perhaps I retained a vestigial subconscious feeling that gay people were not really the same. Perhaps my gay friends did not mention it because it seemed at the time a bridge too far.”
Still, after conferring with his wife and kids, he heard the call to history.
What happened next fills the rest of this plodding and repetitive book with the machinations of a legal thriller that’s not very thrilling, along with numerous expressions of the jaw-dropping respect that Olson has for Boies and vice versa. We learn how they chose their two client couples—one was a friend of Reiner’s, so this affair was all in the family—and how they initially kept their work super-top-secret, for competitive reasons.
They write about the shock learning that “many in the gay community, including most of those who had long led the right for equality, were adamantly opposed to our proposed lawsuit.” This is a key point in this history, but they give it poor airing. The nine leading pro-LGBT organizations (including Freedom to Marry, the National Center for Lesbian Rights, and the American Civil Liberties Union) had been working arm-in-arm on strategy. They had actually signed a mutual pledge to move the fight to the voting booth after 2008, considering a federal litigation strategy “risky and premature” and “a temptation we should resist.”
But having given a moment’s consideration to their position, our narrators pressed onward, dismissing the cries of the movement leadership. How did they explain this? The suffering of the two unmarried gay couples was too great to turn heartlessly away from them.
“I did not know how to tell them this was not their time, that only future generations could enjoy that right,” Boies writes (their book alternates between personal chapters and those with a combined authorial voice). Evidently, the ACLU’s steel-hearted lawyers had no such qualms. “It was time to affirm that fundamental rights are not a matter to be determined by a popular vote. Gays and lesbians had lost election after election in various states. This was not a winning strategy,” they declared.
Their case went quickly to trial before a sympathetic federal judge in a sympathetic district (San Francisco), easily prevailed, was appealed, prevailed again, and then did reach the Supreme Court. The ACLU crowd feared the Court would rule in favor of a state’s right to define marriage, given its conservative majority. That could have set back the movement for decades.
Luckily, the Court instead got stuck on a technicality. The State of California, which would be expected to defend its own constitutional amendment, had refused to do so. Though Boies and Olson suggest that this was because of their fearsome legal juggernaut, it is reasonable to attribute the reticence of Governors Schwarzenegger and Brown to the inroads made by the allegedly timid national movement. Before our swashbuckling counselors had won a single verdict, polls showed Californians in full retreat from Prop 8: Not quite two years after approving it, just 20 percent of voters called it “a good thing.” Even ordinary Americans were suddenly in love with the idea of gay marriage, from 40 percent in favor when Prop 8 passed to 53 percent by the time it was overturned.
Absent official defense from Sacramento, the litigation was taken up by an advocacy group that opposed gay marriage. The Supremes ruled that they didn’t have standing, a move that allowed the previous ruling to stand. Though Prop 8 was overturned, the decision affected only California.
That doesn’t keep Boies and Olson from presenting themselves as our Thurgood Marshalls, suggesting their own responsibility, in part or in whole, for everything from the Windsor case to the near-unanimous approval of same-sex marriage by Scotland’s parliament to the quantum change in public opinion, which was the strategy pursued by the established organizations they demean. “We had established that marriage is a fundamental right,” they write. “We had demonstrated that depriving gays and lesbians of marriage harmed them and their children. And we had established that allowing ‘everyone to marry the person they love’ could not harm anyone.” The Prop 8 war, they confidently predict, “will be memorialized in books, videos, court decisions, and law school classes.” Hopefully, some of those will see its history from a more independent perspective, and place Boies and Olson’s efforts more appropriately in the larger movement.
The marriage movement is indeed at full throttle. The week I was writing these words, federal judges ordered Indiana and Kentucky to recognize same-sex marriages; wedding licenses were being handed out to gays in Boulder, Colorado; a legal challenge to the Florida ban was filed; and a suit against North Dakota’s constitutional amendment advanced in the courts. The history is only getting more complex and interesting, and more crowded with people like Olson and Boies who are playing a significant part, and doing so with less need for self-aggrandizement.
Meanwhile, one awaits a book that might analyze what all these chapel bells are doing to the LGBT community, which once made an asset out of being pushed to society’s extremes, building virtual ghettos and a unique culture of opposition and outsiderness. Many of us still remember when homosexuality was formally considered a psychiatric disorder, a cause for termination, a thing unspoken. It wasn’t until 2003 that our sexual expression became legal throughout America with the Supreme Court’s Lawrence v. Texas decision. For my generation, the journey from outlaw to in-law has been a disorienting one. We joined a movement born of a stone-throwing riot against the cops, after all. Our ideology called for a radical re-envisioning of love and sex in modern life. Not getting married was a good thing! (The only thing better was not going to war, and we know how that turned out.)
It was confusing to a lot of us when the first marriage equality cases hit the papers. That was back in 1990, when three same-sex couples in Hawaii—ordinary people who were not tied to the movement in any way—sued the state with their lawyer, the above-mentioned Evan Wolfson. We were in the middle of the plague years then, fighting for our lives. Church bells seemed almost frivolous, a rampart too far.
But times change. Marriage has been a welcome victory, eagerly embraced. Once it became possible, I married my lover of 20 years, with all the joy that entails. We eloped quietly, with no fuss or caterers. But others have been quite a bit more ostentatious about it, dragging family and friends to the marriage bureau as soon as their bans are lifted. We’ve lifted the economies of dozens of states and staged weekend-long spectaculars worthy of Broadway. The comic Kate Clinton laments that gays are suffering from “Mad Vow Disease.” It does sometimes seem like the “gay agenda” has been replaced by the bridal registry in the four decades since Stonewall. It’s going to take a less myopic bunch of books to put it all in perspective.