On the night of Nov. 4, 2008, as euphoric activists celebrated progressive candidate Barack Obama’s presidential victory, some 18,000 gay and lesbian couples in California suddenly found their marriages annulled, denied by the slim passage of Proposition 8.
“It was jubilation followed by utter heartbreak and rage,” recalled long-time gay activist Torie Osborn on April 28, during the Crawford Family Forum on “Forcing the Spring,” a new, critically acclaimed insider’s look at the history of the Prop 8 battle.
“An unprecedented coalition had come together (to elect Obama), and then at the same moment, their rights were taken away,” Osborn said. ”Let us not forget that revolutions are caused by raised expectations that are dashed.”
The events that followed are the focus of “Forcing the Spring,” a chronicle of the five-year battle to challenge the Prop 8 initiative in U.S. Supreme Court, and restore gays' and lesbians’ right to marry in California.
Author Jo Becker, a Pulitzer Prize winning investigative reporter who now works at “The New York Times,” joined the forum to discuss her book, along with San Francisco Chief Deputy City Attorney Therese “Terry” Stewart, who brought the first lawsuit challenging restrictions on gay marriage to the California Supreme Court. She then joined the team to fight for marriage rights again in the federal courts after Prop. 8.
Legal rivals united
Becker said she became fascinated by the story of the Prop. 8 battle, especially after she learned that the two lawyers challenging the initiative had been foes in the Bush v Gore U.S. Supreme Court lawsuit that decided the outcome of the 2000 presidential election, would be joining forces to challenge the constitutionality of the Prop. 8 initiative.
“I was always so interested in the civil rights fights of the previous century and I wanted to know, how is this all going to turn out? Because it was very unclear, this was a very bold move,” Becker said. “I told them I wanted to do a book but I would have to have unfettered access to all that was going on, because I didn’t want to recreate it after the fact. I set this really crazy bar because no lawyer lets you just wander in and out of their conference rooms...but to my great surprise and delight, they said yes.”
Becker began her story with political consultant Chad Griffin, a gay man who worked — closeted — in the Clinton White House and now lived in L.A. where he did PR work for his friend, director Rob Reiner. A native of the deep South, Becker said Griffin felt “gut punched” that California, his adopted home, could have passed Prop. 8. He was commiserating with Reiner and his wife, Michele, over lunch at the Polo Lounge of the Beverly Hills Hotel.
“And what happened was this moment of serendipity, which happens all the time in this case,” Becker said. “This friend of the Reiners came by and — fast forward — asked what they were talking about, and then she says, ‘Oh, you should talk to my ex brother-in-law. He’s a constitutional lawyer and I think he’d be on your side.’”
That lawyer was conservative attorney Ted Olson. Initially Griffin and the Reiners were repulsed, because Olson “had championed all these conservative causes, and worse, Rob Reiner and Chad Griffin had been at the Vice President’s home the very night that Ted Olson was celebrating his big Bush v Gore victory with Ken Starr, eating caviar,” Becker said. “But unbeknownst to anybody at the time, Olson had this view about equal protection, that government can not discriminate for good or for bad. He’d fought affirmative action programs because they discriminated...and he pretty much had this view that government can’t say one group of people could be married but another group could not.”
A risky strategy for marriage rights
The gay community initially mistrusted Olson’s motives, in part because of his conservative background, but also because he was proposing such a radical shift in the fight for gays' and lesbians’ right to marry. The strategy of gay activists at the time was to keep the marriage battle in the states; they feared the U.S. Supreme Court was too conservative and would decide against them. The Supreme Court had already issued one devastating ruling in 1986 in the Bowers v Hardwick case out of Georgia, which basically said it was OK to criminalize oral and anal sex in private between consenting adults, if those adults were homosexual.
“The repercussions of the Bowers decision were horrible,” Stewart said, and at first Olson and Boies didn’t understand that. “They said, ‘If we lose you’ll be no worse off than you are now,’ but we were trying to say ‘No, we were worse off losing Bowers because it gave permission for state legislatures, state courts and lower federal courts to say ‘You people are criminals and therefore we don’t have to give you any equal protection treatment. There’s something wrong with you.’ Even though denying marriage wouldn’t have been quite the same, it still would have said it’s OK to treat gay people differently.”
Where do revolutions begin?
“Forcing the Spring” has generated sharp criticism from some members of the gay community, who say the book distorts history by ignoring other important achievements in the fight for gay and lesbians’ right to marry. Moderator Frank Stoltze, the crime and politics reporter for KPCC, pointed out that the book opens with the phrase “This is how a revolution begins.”
“Is this where the revolution began?” he asked.
“If I’d set out to write a history of the gay rights movement, or even the marriage equality movement, that criticism would be entirely fair,” Becker said, “But I didn’t do that. I just wrote about one case….This story is about a group of people who decided to do something pretty radical and revolutionary, buck the entire establishment and take this battle to the Supreme Court.”
And said Osborn, former executive director of the National Gay and Lesbian Task Force, “I agree that the revolution had a resurgence, a rebirth with the Prop 8 case….It became the issue, the moral center, not just of the LGBT movement but of civil rights in general. It was the urgent issue, and that was when the revolution began….
“My one concern about the book--and I want everybody to read it, because it’s a thrilling ride--but my one concern is that it kind of sets up this idea that it’s single cases that change history, when in fact there’s a much more complex history to a social movement. The reason that that revolution was important was because of those million people on the streets that night (protesting the Prop 8 victory), tens of thousands of people who became movement organizers because of that contradiction that night.”
As for the future of marriage equality? Becker noted that while religious groups, especially the Catholic Church and Church of Latter-day Saints, played a huge role in passing Prop. 8, new polls show that “young evangelical voters are almost at 50 percent in favor (of gay and lesbian marriage) and the Mormon Church is no longer in the business of funding initiatives such as Prop 8.”
Osborn noted new strategies to take the movement to the Southern states. “There’s been a paradigm shift in the wake of Prop 8, to not shy away from organizing in communities of faith, and not be afraid to tell our story.” And while the U.S. Supreme Court has so far tried to avoid ruling on the issue, Stewart said she believes it will have to face it sooner rather than later, because suits are being filed all over the country. “There’s not a state that has a marriage ban on the books where some challenge is pending in federal court, and we’ve seen every lower court that’s ruled on this, held it unconstitutional.”
Other highlights from the 90-minute discussion:
Terry Stewart, on why gay activists were so wary about taking their marriage equality battle to the U.S. Supreme Court:
“Essentially, when you’re looking to make a change and it hasn’t taken hold yet, asking the Supreme Court to require all the states to do something under the constitution is a really big ask, and they almost never do it, because even though in theory….our civil rights are not based on politics, in reality, the institutional role of the Court is threatened if the Court does things and people don’t follow it. The court still remembers in Brown v Board (of Education) where the National Guard had to be brought out to enforce (desegregation in schools) and it took years and years to get all the states to comply, so the Court is understandably reluctant to get involved in some of these things (ahead of public sentiment).
Jo Becker on Terry Stewart’s reaction after a young lawyer on Olson’s team dismissed concerns about losing the Supreme Court case by saying ‘That’s why we take the tough cases.”
“’When Terry was fighting the California Supreme Court case that led to 18,000 people being able to get married, she told me she carried the pain of her community in her briefcase every day, because she was so aware of what this meant and so scared of letting this community down….She felt this (Prop 8 battle) wasn’t an anti-trust case, this was real people’s lives at stake.”
Torie Osborn, on why the Prop. 8 challenge went forward, despite the reservations of the established gay community:
“Every gay organization had signed on protesting Chad, et al, moving ahead with this but we had one million people protesting in the streets who wanted to move faster and they were willing to try something new. They were saying, ‘We don’t trust these guys (established gay leaders) any longer.’ They wanted to move faster and...not wait for a 25-year, 25-state strategy, so in a sense (Griffin’s) organization created a grassroots audience, constituency following the trial, and they were taking those messages of the trial home to mom and dad. The movement created the possibliity of not just one impact in a courtroom but a brilliantly orchestrated political campaign at the grassroots...It changed the conversation.”
Jo Becker, on political consultant Chad Griffin’s strategy to change public perception about same-sex marriage:
“The first days I was there, well before the trial started, Chad was introducing the goals to the team of political operatives he had assembled, and he had this white board with two things written on it: ‘50%’, which meant by the time this case gets to the Supreme Court, the goal was to have more than 50 percent of the American public supporting same-sex marriage, which seemed crazy, an audacious goal at the time, and the other was ‘an audience of 9,’ which meant, yes, we’re talking to the American people and we have to move the needle so the court doesn’t feel too far out to rule in our favor, but ultimately, we’re talking to nine people, the justices of the Supreme Court’….He ran a public relations campaign simultaneously with the trial. I remember all these boxes that were cluttered around the conference room, and they were filled with 2,000 American flags to be handed out the first day of the trial and many thousands more were ordered...because they wanted the visuals to be something that evoked American values. They wanted this to be talked about in terms of American values, American civil rights.”
Jo Becker on how the testimony of conversion therapy victim Ryan Kendall affected retired U.S. District Court Judge Vaughn Walker, whose decision struck down Prop. 8 as unconstitutional:
“The plaintiffs wanted to show the harm caused by treating sexual orientation as a choice, and Ryan Kendall testified about how his evangelical parents had forced him to attend conversion therapy, which is now widely repudiated and illegal in California. He talked about his exerience of being suicidal as they were trying to force him to be straight, and Judge Walker told me that was one of the most moving things for him because it transported him back in time, because when he was in his 30s, he too had attended a form of conversion therapy; he’d gone to a psychologist because, he said, ‘I wanted to address my’--and there was kind of a pause-- ‘affliction,’ because back then, when he was growing up (homosexuality) was treated like a mental illness. He thought he couldn’t live the life he wanted, or attain the goals he wanted….because he was gay. He didn’t want to say that (even to his parents), because he didn’t want to admit he was one of those ‘deviants.’”
Jo Becker, on why she chose the title “Forcing the Spring”:
“The title has a bit of irony because it comes from Bill Clinton’s first inaugural speech: ‘...This ceremony takes place in the depth of winter but by our words, by our deeds, we force the spring...’ He went on to say how America changes not for change’s sake, but to preserve our fundamental values of liberty and equality and each generation defines what it means to be an American. The irony is that his generation did not embrace marriage equality; he signed DOMA (the Defense of Marriage Act). But for this generation, the Millennials, it’s a touchstone issue. Change was coming, with or without all the people I have written about, because young people don’t get it, they just don’t understand why we’re even debating this. So change was coming; the question was, how fast?”
By Jeanette Marantos
Frank Stoltze, reporter on KPCC’s politics and governance desk
Torie Osborn, former Executive Director of the National Gay and Lesbian Task Force, the Los Angeles Gay and Lesbian Center, and the Liberty Hill Foundation; a Deputy Mayor to former Mayor Antonio Villaraigosa.
Correction: An earlier version of this post misspelled the first name of Michele Reiner.