DOMA and Prop. 8 Teams Talk About Making History
Plaintiffs in the successful case to undo California’s same-sex marriage ban and an attorney from the landmark case that struck down a key provision of the Defense of Marriage Act spoke about the twin court victories during a recent appearance at Stanford University.
The discussion was a part of a three-day symposium about the future of marriage equality that took place October 10-12. The event brought together marriage equality activists, media and political pundits, and legal experts to explore same-sex marriage’s journey to the U.S. Supreme Court, the resulting legal victories, and pursuing marriage equality throughout the U.S.
In June, the U.S. Supreme Court struck down Section 3 of DOMA in United States v. Windsor. The justices also effectively ended Proposition 8, California’s same-sex marriage ban, when they denied proponents the right to defend it in Hollingsworth v. Perry.
Both plaintiff couples in the Perry case, spouses Sandy Stier and Kris Perry of Berkeley and Paul Katami and Jeff Zarrillo of Los Angeles, and the key orchestrator of the lawsuit, Chad Griffin, appeared at the symposium.
Griffin is now president of the Human Rights Campaign, but in 2009 he formed the American Foundation for Equal Rights to bring the federal lawsuit against Prop 8.
Joining them were attorneys from the Prop 8 case, Jeremy Goldman of Boies, Schiller, and Flexner, and Theane Evangelis of Gibson Dunn, who explained the legal road and strategy to the Supreme Court.
Attorney Pamela Karlan, who was co-counsel for plaintiff Edith Windsor on the DOMA team and who is a law professor at Stanford Law School, described turning Windsor’s estate tax issue into a case about overturning DOMA.
Natalia Renta of OutLaw, Stanford’s LGBT legal student organization, rounded out the panel.
Gary Segura, a political science professor at Stanford University who served as an expert witness in the Prop 8 case, moderated the discussion.
There were no regrets among the plaintiffs.
"No. None, none," Windsor said via video from her attorney’s office in New York.
She told the audience that she felt so "sick, anguished, and deeply upset" by having to pay the IRS more than $600,000 and that she felt the U.S. government disrespected her late spouse of more than 40 years, Thea Spyer.
"I took it very seriously, but I loved the whole process," added the spunky 84-year-old lesbian.
She described her initial nervousness in general about the proponents of DOMA and Prop 8 and the power within the courts and politics. But that nervousness eased, giving way to a calm as she listened to their "insane" arguments and how "astoundingly terrible" they were in their comments against her and in general.
"I felt safe that this Constitution was going to take over at a point," it did, and she is glad she won not only for herself, but also for other LGBT people, she told the audience.
As the battle for marriage equality continues, Windsor encouraged young people to "keep pushing."
"I think that we don’t take it for granted," said Windsor about the rights LGBT people have gained. "I think that we should enjoy all of the possibilities and proceed to the next steps. There is still a lot of discrimination."
Katami and Stier echoed Windsor that they have no regrets as their spouses nodded in agreement.
Stier described the day that she and Perry were asked to join the case. Griffin had described the case as a "small lawsuit" for "administrative proceedings."
"We would be on paper. We wouldn’t have to do anything, but it had the potential to go big," said Stier, smiling and playfully poking fun at Griffin.
The pivotal moment for Katami was when Zarrillo sat him down to watch the National Organization of Marriage’s ad, "The Gathering Storm," he said. That was the moment when the two men became "accidental activists," producing a video response that went viral and landed them in the Prop 8 case, they said.
"We were just people who told a story we thought was profoundly ours, but was profoundly everyone’s," said Katami.
"They are the ones who carried the burden for all of us and we owe them a great deal of gratitude," said Griffin.
Angry about the passage of Prop 8, Griffin said he had to do something, so he launched AFER and began the search for the right legal team and plaintiffs. His search for attorneys led to one of the most unusual legal pairings in recent years - bringing on board the lawyers who had squared off against each other in Bush v. Gore - Theodore Olson and David Boies.
A friend suggested conservative attorney Olson after overhearing a lunchtime conversation among friends after the 2008 election. Griffin followed up. Within weeks he was attempting to maintain focus on what Olson was saying about his position on same-sex marriage and legal strategies as he spied photographs in his office of former Presidents Ronald Reagan and George W. Bush, and other conservatives that Griffin spent most of his life rallying against, he said.
"Something is wrong with this picture, ’Where am I?’" he said he asked himself that day during his top secret meeting in Olson’s Washington, D.C. office nearly five years ago.
"Ted Olson is personally a hero and professionally a hero to our community today," said Griffin.
The goal for the Prop 8 case wasn’t to head to the U.S. Supreme Court, although they sensed it had potential. The attorneys believed Prop 8 would be decided on paper and resolved as a summary judgment, Griffin said.
Evangelis said that now-retired U.S. District Court Chief Judge Vaughn Walker made it clear in hearings that he wanted a trial. Walker was outed as gay in the media during the trial, although it was an open secret in San Francisco legal circles.
The Prop 8 legal team studied cases challenging DOMA as well as other historic cases to put the pieces together for a winning strategy, Evangelis and Griffin said as they detailed the steps leading up to filing the case. That included selecting the right plaintiffs that represented well-rounded and strong lesbian and gay couples.
"You could never hope for a better spouse than Windsor or a better team to conspire," said Karlan, pointing out that timing had everything to do with the win.
There were more than 30 cases filed against the federal government over DOMA when the challenge to Prop 8 was filed, said Griffin. By the time it was clear that Prop 8 was heading to the U.S. Supreme Court there were four potential cases for DOMA. The court wanted to hear a DOMA case along with the Prop 8 case, said Karlan.
The court’s decisions in both cases were 5-4.
Going to trial in the Prop 8 case was a "truth serum," for both sides, Griffin said.
The legal teams began to realize they were winning when pro-DOMA and Prop 8 people failed to be able to defend their positions and explain how same-sex marriage harmed children or should be illegal, said Evangelis.
Goldman added that the opposition lost its credibility and credentials during Boies’s questions during depositions in the Prop 8 case. The other side also couldn’t get experts to defend their position or many friend-of-the-court briefs to support them.
"One of the interesting things about this case is nobody wanted to defend Prop 8 - the opponent’s experts backed out," said Goldman, pointing out that California officials didn’t even want to defend the marriage ban.
On the plaintiff’s side they were flooded with amicus briefs from corporations and organizations and had expert witnesses lined up.
"[The pro-Prop 8 side] did not put on an impressive display," Goldman quoted Walker. "The reason that their case failed was that there was nothing behind it, nothing to support it."
Karlan agreed with Goldman that the other side had "no good arguments."
Getting to perceive the harm done to their own relationships and family as well as the thousands of LGBT individuals across the nation was challenging for Katami and Perry, they both said.
Trial preparation forced the plaintiffs to pierce the layers of survival strategies and lies they told themselves to recognize the harm that was being done to them and many other LGBT people by being denied the right to marriage, they said. It forced them to get to the raw truth of their lives and love.
The four plaintiffs did it all under the scrutiny of the media, criticism in the beginning from some in the LGBT community and nasty comments from Prop 8 proponents, not to mention the probing questions into their relationships asked by the attorneys on both sides of the case, they said.
Perry agreed that in addition to sleepless nights and nervous glances at her cellphone, the process forced them to, "search for the truth in ourselves and in our relationship" and forced her to "shed a lot of thick skin," she said.
"We just have to be ourselves, be true to who we are and not sugarcoat anything," added Katami, reflecting on the process preparing to go to trial.
Perry and Stier also had their four sons to consider. The couple prepared their children as best as they could for the intense attention they received throughout the legal processes and they came out the other end unscathed, they said.
It wasn’t a perfect process.
At one point the pressure got to Zarrillo. He described how one night, while the couple was in the kitchen he angrily slammed the microwave door shut and in a rare moment raised his voice at Katami, "Well you know what, at least we are doing something," he said about the barrage of criticism.
In spite of the pressures they faced, they faced it together, said Zarrillo, grateful that the couple had each other.
The two couples expressed their gratitude not only for each other but the legal team that guided them to victory.
Stier earnestly said that she found the process "fascinating."
"We loved our experience," she said. "We are very, very grateful to do it."
"It was a very deep and meaningful process to become a part of the plaintiff team," added Katami. "We got really lucky. I can’t play the lottery ever because we were so lucky to be involved in this case."
The battle for marriage equality isn’t over. There are still states where same-sex marriage remains illegal, the panelists said.
The panelists couldn’t agree on when same-sex marriage will be legal throughout the U.S., but they all believe that it could be soon, either within the next five years and definitely at least within a generation. Challenges dealing with unanswered questions related to striking down the remainder of DOMA will eventually reach the Supreme Court.
Video of the symposium will be available at http://www.youtube.com/stanfordlawschool.