Eyes on the Prize

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4/27/2014 Eyes on the Prize - NYTimes.com
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Eyes on the Prize
By LINDA HIRSHMAN
April 24, 2014
Big Supreme Court cases produce big books: “Gideon’s Trumpet,” “Simple Justice.” On
June 26, 2013, the Supreme Court decided two big  cases. In United States v. Windsor, it
struck down a part of the federal Defense of Marriage Act as unconstitutional, while in
Hollingsworth v. Perry it sidestepped the challenge to California’s anti-gay-marriage
Proposition 8 on a technicality, leaving the trial court’s original ruling — that Prop 8
was unconstitutional — in effect.
The Perry and Windsor cases have generated not one book but a cottage industry.
“Forcing the Spring,” by the Pulitzer Prize-winning Jo Becker, now an investigative
reporter for The New York Times, comes out alongside Jason Pierceson’s “Same-Sex
Marriage in the United States,” and follows a Kindle single, “To Have and Uphold,” by
The Times’s Supreme Court correspondent, Adam Liptak. The Perry superlawyers
Theodore B. Olson and David Boies will publish their own book in June.
The outpouring is understandable. Supreme Court civil rights landmarks have an
irresistible narrative arc. First, the protagonists are oppressed; in the marriage equality
story, the protagonist who started the revolution was “a handsome, bespectacled 35-
year old political consultant named Chad Griffin,” and he had spent most of his life
“haunted by the fear that if he told anyone he was gay, his friends and everything he
dreamed for his future would evaporate.” Then, constitutional litigation promises
liberation; here the unlikely solution came in the form of the famously conservative Ted
Olson, who offered to challenge Prop 8 under the Equal Protection Clause of the 14th
Amendment. The path is thrillingly perilous. There are malignant opponents, like the
people behind ProtectMarriage.com, who argued that gays and lesbians were sick “sex
addicts” and that same-sex parents endangered their children. The gods are fickle; even
before the ultimate Day of Judgment, the Supreme Court ruled in favor of the bad guys,
stopping the trial court from broadcasting the proceedings. The champions deliver
orations in a marble palace, upheld by fluted columns, and if all had gone according to
4/27/2014 Eyes on the Prize - NYTimes.com
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dramatic tradition, on the crucial day the decision makers would have appeared from
breaks in velvet curtains to order deliverance from oppression, and the press would have
gathered on a white marble staircase to hear the Good News.
Jo Becker’s plan started well. She persuaded Griffin, Olson, Boies and all the litigants in
the Perry case to assist her in a fly-on-the-wall account. She spent more than four years
in their rooms as they planned strategy and on the phone listening to their conference
calls. She rode with them in cars, sat next to them in court, flew with them in planes
and, finally, attended one gay couple’s marriage. After the case was over, she even got
the semi-closeted trial judge to talk about his feelings as a gay man during the court
proceedings.
Mike McQuade
[1]
The result, “Forcing the Spring,” is a stunningly intimate story. Indeed, Becker’s best
scenes are not in the courtrooms, but in the S.U.V.’s, buses and limos that transported
the players from one location to another. On decision day, for example, the plaintiffs —
Kris Perry and Sandy Stier, Paul Katami and Jeff Zarillo — piled into Griffin’s black
S.U.V. to go hear the ruling: “ ‘Do you believe we’re going to know in one hour, or one
hour and a half?’ Sandy said. ‘Don’t make me throw up back here,’ Paul replied.”
Becker depicts a Shakespearean cast, ranging from Olson, with his firm’s  multimillion-
dollar fees; to Boies, who “quietly donated back everything he had been paid and then
some”; to 26-year-old Ryan Kendall, whose mother told him she wished she had aborted
him. Kendall testified he had been forced to attend “conversion therapy,” which
delivered the message that he was “dirty and bad.” He left home at 16, fell into drugs
and became suicidal. “I have fought with every bit of myself to take care of myself,” he
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told the court, “to get a good job, to get someplace to live.”
“Forcing the Spring” introduces us to the players in the drama, but as we now know,
Boies and Olson’s epic adventure ended with the proverbial whimper — an unfortunate
turn for Becker’s narrative. The Perry team set out to win a decision from the Supreme
Court that Proposition 8 — and therefore marriage prohibitions in any state in the
Union — violated the 14th Amendment. Instead, the Supreme Court found that the
volunteer supporters of Prop 8 were not sufficiently connected to the law to defend it.
The Perry case thus reverted to the original California decision, which had ruled Prop 8
unconstitutional but didn’t set a national precedent. There would be no gay Brown v.
Board of Education.
The actual victory went to United States v. Windsor, the tortoise in the fable, in which
Edith Windsor, a same-sex widow, sued for the spousal estate-tax exemption denied her
by the 1996 Defense of Marriage Act. Becker spends about 30 pages on Windsor’s case in
her 400-page book. Her tight lens on the Perry play-by-play also fails to capture the
decades of crucial — and painstaking — work that had been accruing in the movement
already. (Before Windsor even filed her suit, the Gay and Lesbian Advocates and
Defenders lawyer Mary Bonauto and Lambda Legal had filed comparable cases; Bonauto
comes up twice, in passing, in “Forcing the Spring.” Similarly, Evan Wolfson, the
intellectual, legal and political father of the same-sex marriage movement, surely
deserves more than a handful of brief mentions.) Ultimately, the court responded as the
gay legal establishment strategy predicted and struck down the portion of DOMA that
withheld federal recognition of marriages even in the few states that allowed them. It’s
Windsor, not Perry, being cited in Prop 8 clone cases as the authority to bring down
state prohibitions everywhere.
David Boies, left, and Theodore Olson at the United States Supreme Court, March 26,
2013.
4/27/2014 Eyes on the Prize - NYTimes.com
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Mark Wilson / Getty Images
[2]
And yet it would be unfair to say Becker bet on the wrong horse. They weren’t the gay
N.A.A.C.P., but Griffin and Boies and Olson and the plaintiffs in the black S.U.V. own a
big piece of the turf in the fight for marriage equality. As they drove to court to hear the
decision, Kris Perry received an email from Jim Messina, President Obama’s 2012
campaign manager: “ Please know you have already won. Nine old . . . judges can’t
change that, either way.” Messina was right. And the Perry team played a huge role in
this extrajudicial victory: They helped transform the way Americans think of gays and
lesbians in general, and same-sex marriage in particular.
In her granular chronicle, Becker’s book shows how they did it. Perry was more than a
lawsuit; it was a Hollywood production. Griffin’s outfit, Americans for Equal Rights, was
started by professional P.R. consultants — Griffin and his business partner, Kristina
Schake — at lunch with the Hollywood actor, director and producer Rob Reiner. AFER
was always about changing the culture; it even had its own writer and producer, Dustin
Lance Black and Bruce Cohen, from the acclaimed gay-themed biopic “Milk.”
The first news conference displayed so much bunting it looked as if someone on the
Perry team were running for president. Chad Griffin kept cartons full of American flags,
which he handed out to AFER’s supporters at rallies. Some of the plaintiff’s witnesses
were selected not so much to prove the case as to be characters in the drama. Jerry
Sanders, a former police chief and the Republican mayor of San Diego, came to testify
on behalf of marriage equality, in part for his lesbian daughter. “What issue in our case
is he relevant to?” Olson appropriately asked. No issue. But after Sanders’s wrenching
testimony, Rob Reiner got it. “Wow,” he whispered.
Griffin started with a “war room” and built up a huge P.R. team. Perry and Stier were
featured in People magazine. Maureen Dowd came to San Francisco to see the trial.
Boies and Olson, as important for their P.R. value as for their legal acumen, met the
press daily (or more) during the trial to spin the events. And the press always came. In
the four years covered by the book, the unlikely duo seemed to appear on every cable
and broadcast channel in the country. Inspired by Olson, the conservative spinmeister
Ken Mehlman left the closet and began instructing the troops on how to manage public
opinion. After the Supreme Court shut down plans to broadcast the trial, Dustin Lance
Black wrote the trial into a play. In May 2011, American support for marriage equality
crossed the 50 percent mark.
4/27/2014 Eyes on the Prize - NYTimes.com
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1. http://mobile.nytimes.com/images/100000002825328/2014/04/27/books/review/forcing-the-spring-
by-jo-becker.html?from=books
2. http://mobile.nytimes.com/images/100000002826482/2014/04/27/books/review/forcing-the-spring-
by-jo-becker.html?from=books
Maybe because she’s such a versatile reporter, Becker saw the big picture. The fight for
marriage equality did not end in a total victory on the Supreme Court steps but
triumphed in a higher court, the court of public opinion. It may not be the story she set
out to tell, but it’s a great one nonetheless.
Linda Hirshman is the author of “Victory: The Triumphant Gay Revolution” and “Sisters in
Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Won the Case for Women,”
which will be published in 2015.

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