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Tue April 22, 2014
'Forcing The Spring' Tells One Chapter In Story Of Marriage Equality
Originally published on Tue April 22, 2014 5:34 pm
In her new book, Forcing the Spring, investigative reporter Jo Becker tells the behind-the-scenes story of an important chapter in the fight for marriage equality. She embedded with the team that challenged Proposition 8 — the 2008 anti-gay-marriage California ballot initiative that called for amending the state constitution to say that the state would only recognize marriage between a man and a woman.
The legal team challenging Proposition 8 — and arguing in support of gay marriage — was headed by high-profile lawyers Ted Olson and David Boies; they were opponents in the Supreme Court case Bush v. Gore, after the contested 2000 election.
The strategy of going to the Supreme Court, and having two superstar lawyers — as opposed to the legal teams that had worked for years on marriage equality — was controversial within the movement. Now Becker's book is proving to be controversial as well.
Andrew Sullivan, who has written extensively about gay rights and marriage equality, posted a long piece on his blog, the Dish, condemning the book for its portrayal of the marriage equality movement. He charges Becker with giving too much credit to the team that challenged Proposition 8 and too little credit to everyone in the marriage equality movement who preceded them or pursued a different strategy — including Sullivan himself. Fresh Air asked Becker for her response.
"The book is about one chapter in a larger narrative, and that narrative includes so many people who worked so hard on this issue when the going was far tougher than it is today," Becker tells Fresh Air's Terry Gross. "But what changed in this moment was the strategy — to the extent that a group of people came together in what was a really dark moment in the gay-rights movement — a moment when California, of all places, enshrined a ban into its constitution — and said [this] state-court-by-state-court and ballot-box-by-ballot-box strategy isn't working. ... They wanted to do something quite radical, really quite radical, which is bring this cause to the Supreme Court."
On why the strategy of going to the Supreme Court was controversial within the gay community
It wasn't that everybody didn't share the goal and want a nationwide, 50-state ruling that gay and lesbian couples had a constitutional right to marry. But the worry was that the country wasn't ready, that the court wasn't ready and that they would lose. ... They were very worried that this litigation would lead to a terrible setback at the Supreme Court. ...
Five years ago ... [there were] only two states where gays and lesbians were allowed to marry, just two. ... Now we have 17 states and public opinion has completely flipped. But at that time, they just thought "the court is not going to be with you" and they were so fearful that if they were to take this to the Supreme Court and the court were to uphold bans like Proposition 8, that would be a terrible setback to the entire LGBT community.
On echoes of the civil rights movement
The gay-rights community had a strategy going in; they thought that they needed to have 30 states with some form of recognition — whether that be marriage, whether it be civil unions — but they wanted to have 30 states signed on before they went to the federal courts. What was really interesting to me is the echoes of the kind of similar debate that took place in the previous century over the civil rights fights that African-Americans waged. There were people who thought, "You're moving too fast! The courts aren't ready!" back then.
On why she wanted to tell this story
What drew me to the story, really, was to explain to people what it's like to be a plaintiff in these major civil rights fights. What does it feel like to be the judge who is hearing this case and who is himself gay and what is he thinking and feeling as the evidence is going on?
It's a story of families and what the children of these plaintiffs in the Proposition 8 case felt as people made arguments about what kind of families are best for children. But ultimately what it really is about ... is what it feels like, as [plaintiff] Kris Perry testified, to want something so badly that other people have and have people tell you that you can't have it.
On using Ted Olson, solicitor general for George W. Bush in Bush v. Gore, to help shift public opinion
If someone like Ted Olson, who championed all of these conservative causes, would take on this case — that will change minds, that will change hearts, and that will change the country. ... As the case moved forward, as public opinion started to shift — because they really did use this case as a vehicle for a public education campaign — they knew going in that they needed to shift public opinion by the time this got to the Supreme Court.
On the first day that they got there, right before the trial started, there was a political war room, a big white room and [Human Rights Campaign President] Chad [Griffin] wrote "50%" on this whiteboard and looked at his team of political operatives that he had assembled and said: That's the goal. By the time this case gets to the Supreme Court we need 50 percent of America with us. And it seemed crazy at the time, just [a] crazily audacious goal.
But they went to work. I think that as public opinion shifted, as people saw the kind of headline potential — having these two lawyers [Olson and Boies] who were mortal enemies in a presidential battle fighting on the same side — it brought this fight into the public consciousness and onto the front page in a way that hadn't really been done before.
On the strategy of using language from Supreme Court Justice Anthony Kennedy's previous gay-rights decisions
Even at the very outset of this case they were already thinking three steps ahead. What they did actually at the very beginning was they pulled Justice Kennedy's two landmark gay-rights decisions, one was ... Lawrence v. Texas, another was a case out of Colorado called Romer v. Evans -- and they pulled all of the language, all of the things he had talked about in the context of gay rights.
They talked about "human dignity." If you go back and you look at all the press conferences, the concept of human dignity was said over and over and over again. It wasn't just in court — it was in the press statements as well. So the legal team and Chad's public education team worked very much hand in hand to make sure that whatever they were putting out there for the public — that the justices might digest in a newspaper article — mirrored the arguments that they were making in the court. And all of it [was] pulled from Justice Kennedy's decisions and designed to appeal to what they hoped and believed would be his view of same-sex marriage.
On Griffin asking Vice President Biden about marriage equality during a private campaign event at the home of a gay couple in April 2012
Chad at this point was the incoming president of the Human Rights Campaign. ... He figured he'd get one question with the vice president. ... In one of these strange accidents of history [Chad is] watching the vice president play with these kids outside and he's thinking, "You know what? I'm not letting him get away with this. I'm going to make it personal."
So when it was his turn to ask the question he looked at the vice president and he said, "You're in this lovely home, you've been playing with these kids, I would like to know as a matter of personal opinion where you stand on marriage equality."
And the vice president was clearly kind of uncomfortable and he flipped the stool around so that the back of the stool was kind of between him and the audience but then he started going and he talked about how his kids can't imagine — people of a certain age can't imagine — that this is even an issue anymore. And it was like once he got going he sort of couldn't stop and said, "Our job is to keep this rolling towards the inevitable."
And Chad was stunned. ... Even [Biden's] staffers said it was like his hard drive was erased. ... I ended up talking to the vice president about that moment and he said it sort of like that — it was this enormously important moment and the way that he translated what Chad asked him was, "What do you think about us?" And he said ... it was one of the most poignant questions he had ever been asked. He just sort of thought, "Well, I'm going to say what I feel." And he did.
On Biden coming out in support of marriage equality — on Meet the Press in May 2012 — before President Obama
The interesting thing about [Biden's appearance on] Meet The Press is that [it] happened two weeks later and the vice president told me it was still this encounter — that question Chad had asked — was still ringing in his head. So when David Gregory asked him ... he basically gave the same answer. It's like he couldn't go back anymore to what he used to say. ... [Later] his communications director said, "Um, I think you just got ahead of the president on gay marriage."
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. The behind-the-scenes story of an important chapter in the fight for marriage equality is told in the new book "Forcing the Spring" by my guest, Jo Becker. She's an investigative reporter with the New York Times. When she was at the Washington Post, she shared a Pulitzer with Bart Gellman for their reporting on then-Vice President Dick Cheney.
To research her new book, she was basically embedded with the team that challenged Proposition 8, the anti-gay marriage California ballot initiative that called for amending the state constitution to say the state would only recognize marriage between a man and a woman. Voters passed Prop 8 in 2008.
The legal team challenging Prop 8 was headed by Ted Olson and David Boies, who were famous as opponents in the Supreme Court case Bush v. Gore after the contested 2000 election. Olson represented George W. Bush, and Boies represented Gore.
The strategy of taking marriage equality to the Supreme Court and having two superstar lawyers, as opposed to the legal teams that had worked for years on the issue, was controversial within the movement. And now Becker's book is proving to be controversial among some advocates of marriage equality.
I recorded my interview with Jo Becker last Wednesday. Later that day, Andrew Sullivan, who has written extensively about gay rights and marriage equality and is gay, posted a long piece on his blog The Dish condemning Becker's book for its portrayal of the marriage equality movement. He charges Becker with giving too much credit to the team that challenged Prop 8 and too little credit to everyone else in the movement who preceded them, including Sullivan himself, or who pursued a different strategy.
Sullivan's criticisms led to several other posts and tweets by journalists agreeing with him, so we asked Becker to come back to our studio and respond to the criticisms. Let's start with that response, which we recorded yesterday. Then we'll hear the larger interview about her book that we recorded last week.
Jo Becker, thanks for coming back to record this. Did you expect your book would be controversial within parts of the marriage equality movement?
JO BECKER: No, but it doesn't really surprise me, to the extent that this litigation that I write about was quite controversial. So the book is about the effort to bring this cause of same-sex marriage to the Supreme Court, and that strategy was very controversial within the gay community when - when they embarked on it.
GROSS: The first paragraph seems to be a paragraph that got Andrew Sullivan very upset and that other people have picked up on. So I just want to read it and clarify what your intention was.
So the book begins: This is how a revolution begins. It begins when someone grows tired of standing idly by, waiting for history's arc to bend toward justice and instead decides to give it a swift shove. It begins when a black seamstress named Rosa Parks refuses to give up her seat on a bus to a white man in the segregated South. And in this story it begins with a handsome, bespectacled, 35-year-old political consultant named Chad Griffin(ph) in a spacious suite at the Westin St. Francis Hotel in San Francisco on election night 2008.
So some people have interpreted this, when you say this is how a revolution begins, that you're saying that the revolution for marriage equality begins when your story begins in 2008, with Chad Griffin.
BECKER: Right. The book is about one chapter in a larger narrative, and that narrative includes so many people who worked so hard on this issue, when the going was far tougher, you know, than it is today, and I have nothing but respect for those people, people like Evan Wolfson(ph), people like - also like Paul Smith.
But what changed in this moment was the strategy, to the extent that a group of people came together in what was a really, you know, dark moment in the gay rights movement, a moment when California of all places enshrined a ban into its constitution and said state-court-by-state-court and ballot-box-by-ballot-box strategy isn't working, or they didn't think it was working, and they wanted to do something quite radical, really quite radical, which is bring this cause to the Supreme Court, and it was very controversial, really controversial because, you know, the worry was - it wasn't that everybody didn't share the goal and want a nationwide, 50-state, you know, ruling that gay and lesbian couples had a constitutional right to marry, but the worry was that the country wasn't ready, that the court wasn't ready and that they would lose.
And a lot of these activists who were very opposed to this litigation, and I think some of - that's what you're seeing reflected a little bit here - a lot of the activists remembered, you know, Bowers v. Hardwick, which was a case brought by the ACLU, and it was a case challenging sodomy laws, and the court wound up upholding sodomy laws, and it took years and years for the court to reverse itself, and it was a terrible setback for the gay community.
And that's what they feared. They were very worried that this litigation would lead to just a terrible setback at the Supreme Court.
GROSS: So I'm just curious, when you say and in this story, it, the revolution, begins with Chad Griffin, do you mean in the story of marriage equality or in the specific story that you're telling in this book?
BECKER: In the specific story that I'm telling in this book. The story that I'm telling in this book is the story of a group of people who decided to go to the Supreme Court, who decided to bring the issue of marriage to the Supreme Court, primarily the group that brought the challenge to California's ban but also Edie Windsor, who brought a different challenge to a law that prohibited the federal government from recognizing marriages in states where it was already legal.
So what I tried to do in this story and what drew me to the story really was to explain to people what's it like to be a plaintiff in one of these, you know, major civil rights fights. What does it feel like to be the judge who's hearing this case and who is himself gay, and what is he thinking and feeling as the evidence is going on?
It's a story of families and what the children of these plaintiffs in the Proposition 8 case felt as people made arguments about who - what kind of families are best for children. But ultimately what it really is about, what this story really is about, is what it feels like, as Chris Perry(ph) testified, to want something so badly that other people have and have people tell you that you can't have it.
GROSS: So getting back to that first paragraph in your book, if you had it to do over again, would you have written this is how a revolution starts?
BECKER: I would.
BECKER: Because I believe that this was a revolutionary step that they took, and not to say that it hadn't been considered, but they were the ones that took the step. And like I said, I mean it could have turned out badly, it could have turned out well, it could have turned out the way, you know, it did. But part of the controversy around the case is what made it interesting.
GROSS: That was Jo Becker, recorded yesterday, responding to some criticisms of her new book "Forcing the Spring," which is the behind-the-scenes story of how California's Proposition 8, which would have banned gay marriage in California, was overturned. Now let's hear the interview I recorded with her last Wednesday about that book.
BECKER: Tell us what kind of access you had while researching this book.
Well, for five years I was given unfettered access to both the legal and political teams that were trying to bring marriage equality to the United States, and that meant that I was in the room with the lawyers as they were plotting strategy, in the political war rooms as they were pitching my colleagues at newspapers and at television stations, and with the plaintiffs as they made this incredibly emotional journey.
GROSS: The central character in your book, if I can call him that, is Chad Griffin. He's a Democratic political operative. He's gay. He has a communications company with his business partner, Kristina Schake, and they have both Hollywood and political clients. And the book opens with him very happy that Obama has won the presidency in 2008 but very sad that Prop 8 passed in California, meaning that in California gay marriage was illegal again, only marriage between a man and a woman was valid.
Why did you choose him as the central character?
BECKER: I think that everything flowed from this evening that you're describing, the election night and the passage of Prop 8. And Chad and his business partner were sitting there and, you know, he described it for me. He felt like it was a punch in the gut to imagine that in California, of all places, you know, the sort of left coast, that this would pass. To him it meant that you just could no longer fight this issue at the ballot box.
And they looked at each other that night really dejected, and they made a pact, and they said if we find a way to move this issue forward, we're going to take it.
GROSS: So he and his business partner were involved, along with Rob Reiner, in getting Ted Olson to argue the case of gay marriage, to argue on the side of gay marriage. And of course Ted Olson is a conservative lawyer who argued on behalf of George W. Bush in Bush v. Gore after the 2000 election. So how did his name come up as a lawyer to defend gay marriage?
BECKER: It's - it was one of the many very serendipitous things that took place over the course of this five years. Rob and Michele Reiner - Rob of course the director of movies like "When Harry Met Sally" - happened to just be very good friends with Chad, almost parent figures. And they were sitting at the Polo Lounge at the Beverly Hills Hotel. It was a few days after the election, and they were just commiserating.
And a friend of the Reiners happened to stop by their table, say hello, et cetera, and then ask Michele to give her a call just to catch up. And Michele left the lunch, and she called this woman, her name was Kate Moulene, and told her what they had been talking about. And Kate said, oh, you know, you really ought to talk to my ex-brother-in-law, you know, he's a constitutional lawyer and I think he'd be on your side of this.
And Michele said, oh, great, what's his name? And she said, well, it's Ted Olson. And there was this pause, and Michele said Ted Olson, why on earth would I want to talk to him?
GROSS: And why did Chad think that was a good idea?
BECKER: Well, I think that both he and Rob Reiner saw the kind of game-changing potential of this, right. Up to this point this had been an issue that had been largely framed as sort of a very partisan political debate. And they thought, well, if we could get someone like Ted Olson, someone who has championed all these conservative causes, who is an icon really in conservative circles, to say that gays and lesbians have a constitutional right to marry, that would change everything.
GROSS: And of course eventually in the fight for gay marriage, David Boies became Ted Olson's partner, legal partner. Of course David Boies argued opposite Ted Olson in Bush v. Gore, Boies represented Al Gore in that case. I was surprised to learn in your book that David Boies was not Ted Olson's first choice. It was not the team's first choice. Who was, and how did they end up with Boies?
BECKER: Well, I think initially Ted Olson understood very, very much that his involvement in this case would initially be treated with suspicion. You know, maybe he was there to tank the case. You know, so he knew that he needed to find a co-counsel that would allay the suspicions his involvement was sure to cause in the gay rights legal community.
And so he first actually reached out to Paul Smith, and Paul Smith argued the landmark gay rights Supreme Court case in 2003, it was called Lawrence v. Texas, and it resulted in the Supreme Court striking down laws that criminalized sodomy. And so, you know, he was certainly well-known in the gay rights community and someone that they trusted.
So he reached out to Paul first. Paul's a Supreme Court advocate like Olson. And they sat down and they talked about it, and it was a very secret meeting, as you can imagine. And Paul said, you know, I wish you luck, but I don't think the country's ready. I don't think the court is ready. I thought about bringing a same-sex marriage case after I won Lawrence v. Texas, and I - but I talked to some clerks of Justice Anthony Kennedy, who authored that decision and is - is and was considered the swing vote on this issue.
And he said I just - I'm not sure that Justice Kennedy is there. It's one thing to say you can't criminalize private behavior, but it's another thing altogether to say that all of these states need to bless these - the unions by allowing gays and lesbians to get married. And I wish you luck, but I don't think the court is ready.
His second choice, or the second person that they approached, actually, was Kathleen Sullivan, and Kathleen Sullivan is a very, very well-respected Supreme Court advocate, and she was someone that also was very trusted in the gay community. However, you know, you have to think of the long game, and Olson realized very quickly that she was on or said to be on Obama's short list for a possible Supreme Court vacancy.
And she didn't end up getting that, but what they thought was, well, if she signs onto this case and then is picked for the Supreme Court, she'd have to recuse, and that would make winning exponentially harder. And that's when he thought of David.
GROSS: If you're just joining us, my guest is Pulitzer Prize-winning journalist Jo Becker. Her new book is called "Forcing the Spring: Inside the Fight for Marriage Equality." Let's take a short break, and then we'll talk some more. This is FRESH AIR.
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GROSS: This is FRESH AIR, and if you're just joining us, my guest is Pulitzer Prize-winning reporter Jo Becker. We're talking about her new book "Forcing the Spring: Inside the Fight for Marriage Equality." And she was basically embedded with the legal team and the political operatives who fought on the side for gay marriage and Prop 8 and in the appeal to the Supreme Court.
So you write about how much disagreement was in the gay rights community, particularly the gay legal rights groups, about this approach of taking the case to the Supreme Court and of having Boies and Olson being the ones to argue the case, because, you know, gay rights was not their specialty, they were outsiders, whereas the insiders weren't really made a party to this. Talk a little bit more about that controversy within the gay rights community.
BECKER: Sure. Well, the gay rights community had a strategy going in. They thought that they needed to have 30 states with some form of recognition, whether that be marriage, whether it be civil unions, but they wanted to go have 30 states signed on before they went to the federal courts. And what was really interesting to me is the sort of echoes of the kind of a similar debate that took place in the previous century over the civil rights fights that African-Americans waged.
And there were people who thought you're moving too fast, the courts aren't ready and - back then. And that was the same sort of debate. It's not that the gay rights legal community didn't want a nationwide Supreme Court ruling, you know, saying that gays and lesbians had this right, and it wasn't that they didn't believe that they had this right as a constitutional matter.
What they were concerned about, though, was that you have to kind of cast back. Five years ago, it seems almost impossible to imagine today, but five years ago there was only two states where gays and lesbians were allowed to marry, just two. And the vast majority of the country were opposed. Now we have 17 states, and public opinion has completely flipped, but at that time they just thought the court is not going to be with you, and they were so fearful that if they were to take this to the Supreme Court and the court were to uphold bans like Proposition 8, that that would deal a terrible setback to the entire LGBT community.
GROSS: So how did Chad Griffin and Kristina Schake, who had been the original organizers of the campaign to take this to the Supreme Court, how did they respond to the gay rights groups, who opposed this strategy?
BECKER: Well, this all culminated in a very, very hostile lunch at the Reiners' home in Brentwood...
GROSS: At Rob Reiner's home.
BECKER: Yes, and they invited some of the lawyers who have been involved in this fight for years, and they, you know, they knew that they needed to fill them in on their plans. And so they sort of said we're thinking about doing this. And everybody sort of exploded. It was like a cacophony of criticism all at once, saying, you know, you're outsiders, you know nothing, you don't know how to count to five out of nine votes on the Supreme Court. I mean they were really scared.
And they said, please, please wait. And one of the lawyers who was there to brief them on the team that Chad had assembled said, what, do you think we should wait for the Mitt Romney administration? Mitt Romney was the likely Republican nominee at that point. And you know, there was a fear that, like, if a Republican was elected president, the balance of the court could shift, and from Chad's and Kristina's and Ted Olson's perspective, this - the time was now.
And so they left that meeting, actually at one point during the meeting one of the lawyers from one of the established gay rights groups had a dossier filled with every kind of conservative cause that Ted Olson had ever championed and he threw it on the table and he said, if you do this, I'm going public with all of this. And Chad looked at him and said good, do it, because if someone like Ted Olson, who championed all of these conservative causes, would take on this case, that will change minds, that will change hearts, and that will change the country.
GROSS: So did the hostility continue, or was there a reconciliation?
BECKER: Well, I think that what happened is over time nothing quells criticism like winning. And so, you know, as the case moved forward, as public opinion started to shift because they really did use this case as a vehicle for a public education campaign, I mean they knew going in that they needed to shift public opinion by the time this got to the Supreme Court, right?
So on the first day that they got there, right before the trial started, there was a - the political war room. There was a big white board. And Chad wrote 50 percent on this white board, and looked at his team of political operatives that he had assembled and said that's the goal. By the time this case gets to the Supreme Court, we need 50 percent of America with us.
And it seemed crazy at the time, just a crazily audacious goal. But, you know, they went to work, and I think that as public opinion shifted, as people saw the kind of headline potential, right, like having these two lawyers who were moral enemies in a presidential battle fighting on the same side, it just, it brought this fight into the public consciousness and onto the front page in a way that hadn't really been done before.
And so that really did start to allay some of the suspicions. And I also think that Olson went - Ted Olson really worked hard. You know, he called everybody. I mean, he understood that his involvement would be greeted with suspicion. And one of the results of one of these phone calls was Kate Kendall(ph) is a woman who has been working on these issues for years, listened to the passion in his voice, listened to him and thought, you know, I'm not sure that it's the right time, but I know he's committed.
And she said to him, I'd like to make you an honorary lesbian.
BECKER: He laughed, and he said, well, that's a badge I'll wear with honor.
GROSS: Jo Becker will be back in the second half of the show. Her new book is called "Forcing the Spring: Inside the Fight for Marriage Equality." I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross, back with Jo Becker, author of the new book "Forcing the Spring: Inside the Fight for Marriage Equality." It tells the behind-the-scenes story of the team that challenged California's Proposition 8 that was passed by voters in 2008. Prop 8 called for amending the state constitution to ban gay marriage. The central figure in Becker's book is Chad Griffin, who at the time headed a PR firm with his business partner, Christina Shockey, and is now the head of the LGBT lobby group, the Human Rights Campaign. He was the architect of the strategy to challenge Prop 8 and take it to the Supreme Court. The legal team united former Bush v. Gore opponents, Ted Olson and David Boies. The plaintiffs were a gay couple, Paul Katami and Jeff Zarrillo and a lesbian couple, Kris Perry and Sandy Stier.
Now you talk about the search for plaintiffs in the Prop 8 case. And Ted Olson, who was arguing for gay marriage and against Prop 8, he had a set of criteria for the plaintiffs. What were those criteria?
BECKER: Yeah. So he told Chad and Christina Shockey that he wanted someone who owned a bookstore, a police officer and a teacher. And, you know, he was quite specific about it, actually. But I think what he really meant by that was he wanted people that were just regular Americans. He didn't want activists, he didn't want celebrities. But, you know, it turned out to be a lot harder to convince people to step forward to do this than they had ever anticipated. So they, you know, were quietly kind of trying to round up people and they had a very elaborate ruse that they put together to try - because they didn't want word to seep out that they were filing this lawsuit, but they needed to get plaintiffs. And so they put out the word that they were doing a public education campaign and that they were looking for gay couples who were committed in long-term relationships but that did not get married in the short window where it was legal in California.
And so they then would bring people in and they would interview them. They had an opposition researcher that they had hired to dig into their background and find out anything that they had ever done that might come up in trial. And once they sort of would pass all of those type of things, then they would ask them very, you know, intimate questions. Have you ever been unfaithful? All sorts of things about their personal life and their history. And if people made it through that process, they would then fill them in on what the plan was.
GROSS: So once David Boies and Ted Olson were each in, arguing on behalf of gay marriage, how did they divide up their responsibilities on the case?
BECKER: Well, it's interesting. You know, Ted Olson has a very - and you saw it during the Bush v. Gore case, he's a delegator. He does not need to sort of argue at every single level and he doesn't need to, you know, sort of examine every witness. David was a, you know, he's a trial lawyer. I mean that's ultimately what he does. So David was assigned all of that kind of hostile cross examinations and Ted really focused on the opening and closing arguments and making sure that the groundwork that they laid at this trial, that the record was perfect and contained everything that he would need once it went up on appeal. Because, of course, once you leave the trial level you don't get to introduce witnesses and you don't get to introduce evidence. So he wanted to make sure that every single piece that he might need when he went to argue this in the Supreme Court was in the hard, cold record.
GROSS: And even at the beginning of the story when they were challenging Prop 8 on the state level, Boies and Olson wanted to have language in their arguments that would appeal to Justice Kennedy, with the assumption that eventually this case would get to the Supreme Court. So what did they put in, what kind of like language or principles do they put in their argument intentionally to speak to Kennedy, to Justice Kennedy?
BECKER: Well, that was one of the most interesting things the kind of forethought that - and how even at the very outset of this case they were already thinking, you know, three steps ahead. And what they did actually at the very beginning was they pulled Justice Kennedy's two landmark gay rights decisions - one was like I said, Lawrence v. Texas, another one was a case out of Colorado called Romer v. Evans. And they pulled all of the language, all of the things that he had talked about in the context of gay rights. So they talked about human dignity. I mean if you go back and you sort of look at all the press conferences, the concept of human dignity was said over and over and over again. It wasn't just in court, it was in the press statements as well. So the legal team and Chad sort of public education team worked very much hand in hand to make sure that whatever they were putting out there for the public that the justices might digest in a newspaper article mirrored the arguments that they were making in the court. And all of it, all of it pulled from Justice Kennedy's decisions and designed to appeal to what they hoped and believed would be, you know, his view of same-sex marriage.
GROSS: If you're just joining us, my guest is Jo Becker, the author of the new book "Forcing the Spring: Inside the Fight For Marriage Equality." She's an investigative reporter for The New York Times, formerly with The Washington Post and she's a Pulitzer prize winner. Let's take a short break, then we'll talk some more.
This is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: This is FRESH AIR. And if you're just joining us, my guest is Jo Becker. She's an investigative reporter for The New York Times. She's a Pulitzer prize winner, and now she's the author of the new book "Forcing the Spring: Inside the Fight For Marriage Equality." And she was basically embedded with the legal team that challenged Proposition 8. And that was the ruling in California, the ballot measure that called for changing the state constitution so that gay marriage would be illegal, so that marriage would be defined as a relationship between a man and a woman. And this case went as high as the Supreme Court.
When Boies and Olson challenged Prop 8, the judge in that case was Vaughn Walker. He was gay. He is gay, but he was in the closet during the trial. He was outed by the San Francisco Chronicle two weeks after the trial. Did anyone on either side of the case know that the judge was gay?
BECKER: When the judge was pulled, right? When - it's just by a lottery, so when they found out the judge's name, one of the lawyers emailed the team saying it's Vaughn Walker, he's the chief of the district and everyone was sort of saying oh, that's great because he's a Republican appointee. He was a Reagan appointee initially and, you know, they can't say that this is some sort of San Francisco liberal judge, was the kind of initial take. Then, of course everybody kind of went and, you know, they're doing their research, looking at every opinion Judge Walker had ever written. And during the course of that they found out that, yes, you know, he was gay. And he wasn't quite in the closet, he just had never made any kind of public pronouncement, and it had never been made public. But he was, he had a longtime partner. So the one thing is is that they didn't know whether the lawyer on the other side - a lawyer named Chuck Cooper who was defending Prop 8 - they had no idea whether Cooper know that the judge was gay.
GROSS: You later talked to Cooper. Did Cooper know?
BECKER: Well, yes, Cooper did know.
GROSS: So we've been talking about how the judge in the challenge to Prop 8 was gay. The lawyer defending Prop 8, Charles Cooper, learned during the case that one of his daughters is a lesbian and then she actually wanted to marry her partner. You spoke to him, to Charles Cooper, after the case. What did he tell you about that and about the impact that it had on him while he was arguing against gay marriage?
BECKER: So Chuck Cooper found that this really in the middle of the case. It was when the case was on appeal at the 9th Circuit. So all during the trial he was not aware of this fact. But what I found really interesting was during the trial, he was so moved by the testimony of two of the plaintiffs, Kris and Sandy. You know, Kris was talking about, you know, how if bans like Prop 8 hadn't, didn't exist and the sort of discrimination against, that gays and lesbians face didn't exist when she was growing up, that her entire life might have been lived on a higher arc and that that was what she hoped in bringing this case, that the next generation of kids - gay and lesbian kids - wouldn't have to go through what she had gone through.
And, you know, Cooper told me that, you know, just listening to this testimony, I mean he, there were times during the case that the plaintiffs thought that his heart wasn't really in it because he wasn't really making kind of some of the arguments that activists and actually that proponents of Prop 8 had made. And he told me that's not it. I mean he is a strict constructionalist. He believes that, you know, if the Constitution doesn't say it so than the right doesn't exist. I mean he, so legally he, his mind has not been changed and wasn't changed. But he said, you know, politically, listening to Kris and Sandy testify reminded him of what an excruciatingly - he called it - excruciatingly difficult issue this is as a political matter. And, you know, he said that, you know, he said something like what was going through my mind? All I can say is that, you know, what I thought was that people, you know, like Kris and Sandy and people like them, you know, have a legitimate position that he respected.
And, you know, and it's so interesting because at the time, Kris and Sandy were petrified of getting up and testifying and being cross-examined by Chuck Cooper and they couldn't have even imagined I think in a million years that their testimony had that kind of an impact on the man was fighting them in the Supreme Court.
GROSS: So how did Charles Cooper, the lawyer, defending Prop 8, find out that his daughter was gay? Did she choose the trial as a time to break the news to her father?
BECKER: Ashley is his stepdaughter, but they're very, very close. Ashley, you know, wanted to tell him in her own way. And actually, he made it much easier for her by they were sitting outside at their home in Florida and he said, well, so, when am I going to meet Casey? And Casey was Ashley's girlfriend at the time. And it was such a relief to her that he asked and she didn't have to kind of summon the courage to tell him. And in fact, she told me that she thought that it was easier to come out to him because of the experience of going through that trial and because of all the way that he had processed all the testimony that he heard. And in fact, he said the same young man who talked about his parents trying to force him to be straight, he said, you know, that was in his mind very much and that he certainly knew what not to do. And Chuck, you know, said it certainly, you know, changed him. I mean he's said, you know, I'm evolving like many people on this issue. And what's clear to me in talking to him is he and his wife are now joyfully planning Ashley's wedding. She got engaged shortly before the Supreme Court took the case and they're really looking forward to a wedding in June.
GROSS: That's kind of amazing.
GROSS: Part of your book is devoted to how President Obama changed his position on gay marriage. When he was elected for the first time, he supported civil unions but said that marriage was something between a man and a woman. So in talking about how President Obama, you know, involved and came to publicly support gay marriage, you have to tell the story of Joe Biden. And a lot of our listeners will remember that Joe Biden had basically come out in support of gay marriage on "Meet the Press" and everybody was saying, oh, Joe Biden's ahead of the president. You know, what's the president going to do now because it seemed like they were no longer in agreement on it and it was putting President Obama in an awkward situation.
So let's back up to an earlier part of that story when Vice President Biden is at a meet and greet that's co-organized by Chad Griffin, the central character of your book, who is one of the people who got the whole, you know, gay marriage case that went to the Supreme Court going in the first place. He's also a political operative. So Griffin meets Biden at this meet and greet, which is at the home of a gay couple who has children and Chad decides to ask him the question. What's the question?
BECKER: Yeah. So he basically - Chad, at this point was the incoming president of the Humans Rights Campaign, so he'd kind of come from being this outsider...
GROSS: ...which is a big, you know, gay rights group.
BECKER: Exactly. It's the NAACP for gay people. I mean, so he was the incoming president and he figured he'd get one question of the vice president. Why ask about what their position was on marriage equality when he was sure he knew the answer? I mean he, Michelle Obama, he'd run into her and she said she basically delivered a message to him saying, you know, hang with us and we'll be with you after the election. And so he thought, well, I'm not going to bother asking my one question on this. But in one of those strange kind of accidents of history, he's watching the vice president play with these kids outside and he's thinking, you know what? I'm not going to let him get away with this. I'm going to make it personal. And so when it was his turn to ask a question, he looked at the vice president and he said, you know, you've been, you're in this lovely home, you've been playing with these kids. I would like to know, you know, as a matter of personal opinion, you know, where you stand on marriage equality. And the vice president was clearly kind of uncomfortable and he flipped the stool around so that the back of the stool was kind of between him and the audience. And but then he just started going and a sort of talked about how, you know, his kids can't imagine, people of a certain age can't imagine that this is even an issue anymore. And he starts and, you know, it's like once he got going he couldn't stop and he sort of said and our job, our job is to keep this rolling towards the inevitable. And Chad was stunned.
And even his staffer, you know, staffers who were used to the vice president going off script - he's kind of known for that - said it was like he'd been answering this question the same way over and over and over again, and it was just like what the president had said. I'm evolving. But he never would say I support marriage equality.
And yet, the staffer said it was like his hard drive was erased, being in this house, playing with those kids. He just couldn't seem to help saying what he felt. And, you know, I ended up talking to the vice president about that moment, and he said it was sort of like that. I mean, it was this enormously important moment.
And the way that - it's interesting. The way he translated what Chad asked him was: What do you think about us? And that was sort of what - and he said, you know, whoa. He said it was one of the most poignant questions he'd ever been asked. And he just sort of thought, well, I'm going to say what I feel. And he did.
And the interesting thing about "Meet the Press" is that happened two weeks later, and the vice president told me it was still this encounter, that question that Chad had asked was still sort of ringing in his head. And so when David Gregory asked him the question, well, have you - you know, are you still evolving, or what do you think, he basically gave the same answer.
I mean, it was like he couldn't go back anymore to what he used to say. And, you know, he gave the same answer. He got in car, apparently was sort of, you know, not thinking much of it, and his communications director said: I think you just got ahead of the president on gay marriage.
GROSS: So what was President Obama's reaction to that? What did you learn?
BECKER: Well, many of President Obama's advisors were furious. Valerie Jarrett hit the roof. I mean, she sent a message that he'd been downright disloyal. I mean, really, people were very upset. And the reason that people were upset was there had been a conversation going on in the White House. About a year out from the election, the president's pollster had started to see numbers that showed that there was, you know, there was not just - the way that the political team had viewed this was that it was all downside.
Why do this before the election? They were really frightened that it would splinter the coalition that they needed to have him win a second term. And specifically, they were worried that it would depress turnout among African-Americans, that it could hurt him with the Catholic white vote, and that it could hurt him with Latinos.
And so there was just - they didn't see any upside. And until they started seeing these other numbers, and those other numbers said that 18 to 30-year-old, for them, this was a touchstone issue, right up there with climate change, and that it was a huge impediment. The president's failure to endorse marriage equality was a huge impediment to them coming out in the numbers that they needed for him to win.
And so that started a conversation, and the president, sort of with these countervailing winds, brought his advisors together, and he said, you know, if I'm asked this question again, it's going to keep coming up. It's not like we can, you know, duck this. I want to be able to tell the truth. And David Axelrod, one of his top aides, told me, you know, that the politics of authenticity - and not just the politics, but his own personal sense of authenticity - demanded that he do this. And the president understood that.
But in a measure of just how frightened they were of this issue, even though the president said that, they had been dawdling, and there was just no real plan in place. And then suddenly, the vice president kind of stepped into it, as they say.
GROSS: If you're just joining us, my guest is Jo Becker, an investigative reporter for the New York Times. She's the author of the new book "Forcing the Spring: Inside the Fight for Marriage Equality," and it follows the team that argued on behalf of gay marriage in the appeal to Proposition 8 in California and took it - the case went as high as the Supreme Court. Let's take a short break, then we'll talk some more. This is FRESH AIR.
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GROSS: This is FRESH AIR. My guest is Jo Becker, author of the new book "Forcing the Spring: Inside the Fight for Marriage Equality." When we left off, she was telling the story of how Vice President Biden came to publicly support marriage equality before President Obama was ready to publicly support it. Becker says that by this time, the president already privately supported marriage equality, but he and his advisors were concerned about timing a public statement so that it wouldn't hurt his chances of reelection.
What was the plan they came up with for how President Obama could change his position publicly and state what he actually believed about gay marriage?
BECKER: Sure. Well, during this kind of period of endless debate, where the president wanted to do something, but there was months and months and months went by where they weren't doing anything, they had reached out to Ken Mehlman, and Ken Mehlman was the chairman of the Republican Party. And one of the things that Chad Griffin - the main character of my book - had done was not just sort of have two lawyers from opposite side of the aisle, but to bring together the political operatives from both sides of the aisle.
And so Ken was, you know, considered a genius. He was the engineer of Bush's second term, and he had helped the White House. He came out to be a part of the lawsuit, the Prop 8 lawsuit, and he had helped the White House get Republican votes that they needed to repeal "don't ask, don't tell," the policy that prevented gays and lesbians from serving openly in the military.
And so during a - after that, the president had invited Mehlman to lunch and said, you know, they talked about this issue. And Mehlman said, you know, I don't think this is going to kill you. And so when the president gathered a little - months later, his advisors together, and said I want to do this, David Plouffe, who was the campaign manager of Obama's '08 campaign, called Mehlman, and asked for kind of if we're going to do this, how might we go about it in a way that would appeal to sort of middle America.
And Chad and Mehlman had made a real study of this. And what they had come to understand was that if you talk about marriage in terms of hospitalization visitation and being able to visit someone in the hospital, being able to get a tax break. Then straight people kind of think, well, gay people don't want to get married for the same reason that we do.
But if you talk about it in terms of, like, their stories, right, these plaintive stories that they love each other, that they want to commit to each other, that they want to own this language that allows everybody to understand the reality and the commitment of the relationship, well, that really moves people.
And the other thing that they were finding that really moves people is if you talk about this issue in terms of sort of shared American values. So you talk about it in terms of the Golden Rule, right? You say, you know, most Americans believe that, you know, you wanted to be treated the way you treat - treat others the way you want to be treated.
That was moving to people. Are we really going to say to members of our military that they can't marry the person that they love after coming home from Afghanistan? Are we going to tell the policeman in your neighborhood who keeps you safe that they can't marry the person that they love? And what was kind of really interesting was when the president then, after Biden said what he said on "Meet the Press," they scrambled and they got an interview ready.
And when he went and sat down for this interview with Robin Roberts, it was very much a mirror of these talking points and these very poll-tested kind of messages that were resonating with the American public.
GROSS: So, after covering this gay marriage fight for five years, what was it like for you to be at the Supreme Court when the advocates of gay marriage won in the Prop 8 case?
BECKER: That morning, you know, we all sort of piled into this van and we headed over to the Supreme Court. And, you know, they were so nervous. You could only imagine what it's like, you know, to be waiting finally for these nine justices to deliver their verdict about whether you can get married. And so we, you know, filed into the Supreme Court, and it's this, you know, it's a very, you know, august kind of setting.
And, you know, the justices sort of appear from behind these - all at once, from behind these folds in the curtain. And it was the last day, and everybody, you know, was sort of, you know, waiting for the chief justice to say, you know, and whoever has the opinion in, you know, Windsor, and then the Windsor opinion was delivered.
So then the Prop 8, you know, plaintiffs are waiting, and it's like - and in, you know, this - and then Roberts finally delivered the opinion in the Prop 8 case. And it was a - it wasn't the win that they were looking for. The Supreme Court ended up deciding it on a procedural ground that allowed same-sex marriages to resume in California, because what it did was it allowed Judge Walker's opinion to stand by saying that the proponents of Proposition 8 did not have standing, it's called, to appeal.
So it was a technical decision, but a win, nonetheless. It did, though, leave open the question of whether bans like Prop 8 all across the country were unconstitutional. And that's what we're seeing now, is a whole slew of new cases making their way towards the court.
GROSS: Which case do you think is likely to come before the Supreme Court next?
BECKER: It's hard to predict which case exactly is going to come before the Supreme Court. Olson and Boies have a case in Virginia that is heading there pretty quickly. There's other cases in Utah and Oklahoma that are also pretty much on a fast track. So which case gets there when, it's impossible to totally predict.
But, I mean, I think if the Supreme Court thought that in deciding Proposition 8 case on a kind of technical basis could buy it a few years, I think that they were mistaken.
GROSS: Jo Becker, thank you so much for talking with us.
BECKER: Thank you so much for having me.
GROSS: Jo Becker is a reporter for the New York Times and author of the new book "Forcing the Spring: Inside the Fight for Marriage Equality." You can read part of the first chapter on our website, freshair.npr.org. Transcript provided by NPR, Copyright NPR.