SAN FRANCISCO Tamara Lange remembers the call. The former ACLU staff attorney was on an airport bus to a UCLA conference in early February 2004 when the word came through: San Francisco Mayor Gavin Newsom was working on a plan to issue marriage licenses to same-sex couples.
Shannon Minter of the National Center for Lesbian Rights remembers, too. The legal strategy the city would declare the state's marriage laws unconstitutional carried obvious legal risks. "Our initial reaction was to try to stop them," he recalls. But as Minter and NCLR executive director Kate Kendell discussed it over the weekend, "we kind of shifted. Why should we try to stop this? It's wonderful that the mayor and the city want to step up for our community."
Over the next few days, as Newsom conferred with city attorney Dennis Herrera and his chief deputy, Therese Stewart, and representatives of ACLU, NCLR and Lambda Legal, everyone came on board. "The shared legal perspective, which has never wavered, is that equal protection requires equal treatment under the law," Lange says. But even then, the question was raised, "How will this affect us in an initiative fight, and should we wait a little longer?"
The answer, she says, "couldn't be measured prospectively and can't be assessed retrospectively."
On Feb. 12, Newsom threw open the doors of San Francisco to same-sex couples, launching a chain reaction of legal and political events that have transformed the national debate about same-sex marriage and gay and lesbian rights generally. After four California Supreme Court rulings, two Ninth Circuit decisions, a voter initiative and a trial that mesmerized the country, the issue makes what could be its final stop Tuesday at the United States Supreme Court.
The appellate rulings and the initiative have made the biggest headlines, but little decisions by trial judges and litigants on issues as seemingly trivial as notice and standing also have shaped the course of the litigation in ways no one could have predicted.
Herrera points out that in 13 years, California has been transformed from a state where 61 percent of voters supported a gay rights ban to one where neither the state nor the federal government is willing to defend it in court. "It's not just the poll numbers. It's not just the politicians changing sides," he said in an interview this month. "It's the way institutions are acting that shows you how much things have changed."
FOR LACK OF NOTICE
The day after the first same-sex marriage was performed, Campaign for California Families and the Proposition 22 Legal Defense and Education Fund appeared before San Francisco Superior Court Judge James Warren, requesting an immediate restraining order. "This is municipal anarchy here in San Francisco," complained the fund's Robert Tyler.
But there was a procedural problem, the city pointed out. Under California law, it was entitled to 24 hours' notice to respond to the challengers' arguments. With the Presidents Day weekend ahead, Warren would not be able to rule on the groups' request for a TRO until the following Tuesday.
"The initial decision was, it's a denial of due process to short the people their 24-hour notice," Warren recalled in an interview this month. "That was it. There was a lot of gnashing of teeth."
Not from the city, which announced that City Hall would remain open for matrimony throughout the weekend. Couples lined up around the block as TV cameras recorded their nuptials for a national audience.
To proponents of same-sex marriage, who had been relying largely on legal principles from a 2003 U.S. Supreme Court decision decriminalizing consensual sodomy, this was a pivotal moment. "It let people see same-sex couples as people, instead of purely sexual beings," says Lange, who today works as a mediator in Berkeley.
"That was the seed of all the changes that followed," agrees Minter. "It gave people in the community and nationally a taste of what equality would feel like. Once people got a taste ... you can't reverse something like that."
Even Judge Warren could not ignore what was taking place a block from the Civic Center Courthouse. "People kept telling me, you've got to go out and see this. I said I couldn't because I'm involved in the case," he recalls. But, he admits, he did peek out the window at one point. "The energy was electric," he says. "It was sort of like the gay freedom parade circling around City Hall."
The timing of the marriages around the long weekend, Herrera recently acknowledged with a smile, was both serendipity and strategy.
The mayor and the county clerk had chosen the starting date on their own. Once they'd done so, "we realized we had the advantage of timing and we used it strategically."
After the holiday weekend, the opposition groups renewed their request for a TRO, arguing that the marriages were causing irreparable harm to heterosexual marriages. To Warren, this was a head-scratcher. "I remember thinking, my lord, how does that qualify as irreparable harm?" Warren recalls. "From a legal perspective, it wasn't really a difficult decision."
Warren denied the request but set a hearing on an injunction for six weeks later. Until then, the marriages would go on.
San Francisco's Winter of Love was quickly turning up the heat on leaders in Sacramento. Herrera's office filed a cross-complaint naming the state of California as a party. The goal was to shift the focus off San Francisco's conduct and onto the constitutionality of Prop 22.
Governor Arnold Schwarzenegger wrote to attorney general Bill Lockyer the next day, demanding that he intervene. A few days later, President George W. Bush renewed his call for a federal constitutional amendment, invoking the "overwhelming consensus in our country for protecting the institution of marriage."
Lockyer was in an awkward situation. While making it clear he did not personally support "lesser legal rights and responsibilities to committed same-sex couples," he went directly to the California Supreme Court on Feb. 26, asking it to stop the San Francisco marriages and affirm the validity of Prop 22.
"When you're a government attorney, your highest allegiance is always the enforcement of state law," deputy AG Timothy Muscat said before arguing the case to the high court. "We don't make up the law, we don't expand the law. We enforce the law."
In retrospect, that stance would seem positively zealous compared to Lockyer's successors. Still, marriage opponents were uneasy with Lockyer's fast-track strategy. "The constitutionality of the marriage laws is an issue best left to full development in the lower courts," Alliance Defense Fund's Benjamin Bull said at the time. "There's excellent social science research and evidence supporting the distinction between same genders and opposite genders, that the statute rests upon."
The marriage opponents were getting anxious about Warren, too. They filed a peremptory challenge to remove him from the case. Temecula attorney Richard Ackerman said then it had nothing to do with news reports that Warren himself was gay. "Although I must say if that's true," he added, "that certainly doesn't bode well for the appearance of impartiality."
Warren would not have to rule again in the case. Before the hearing date approached, the California Supreme Court ordered an immediate halt to the San Francisco marriages and asked the parties to brief whether city officials had overstepped their authority. Same-sex couples just minutes away from wedlock at City Hall were turned away.
There was one silver lining for same-sex marriage supporters. The Supreme Court noted in its order that the parties were "not precluded from filing a separate action in superior court to challenge the constitutionality of state family laws that say a marriage is between a man and a woman."
Herrera filed a fresh lawsuit in S.F. Superior Court the same day. The ACLU, NCLR and Lambda filed 24 hours later. "We can read, and we can recognize a gilt invitation when it's presented to us on a silver platter," Lambda Legal's Jennifer Pizer said at the time.
In August 2004 the Supreme Court issued the first of what became known as its trilogy of same-sex marriage rulings. It permanently enjoined the city from issuing marriage licenses to same-sex couples. "To avoid any misunderstanding," Chief Justice Ronald George added in Lockyer v. City and County of San Francisco, 33 Cal.4th 1055, "we emphasize that the substantive question of the constitutional validity of California's statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding."
In an interview earlier this month, former Justice Carlos Moreno called this "the baby step approach."
"In retrospect I think that was a very good strategy. At least I agree a court should proceed incrementally," says Moreno, who joined George's opinion in Lockyer while adding a separate concurrence.
Did Moreno know back then how the court would rule on the ultimate constitutional question? No, he says, but "I knew it would be close" probably 4-3 one way or the other. "I didn't think it was going to be unanimous, to say the least."
That vote would not come for another four years. In the meantime, the Lockyer ruling had immediate consequences for the 4,000 couples who'd already been wed. Over the dissents of two justices, the court ordered their marriages invalidated. Among the couples was Nanci Clarence, the criminal defense attorney and future Bar Association of San Francisco president, and filmmaker Lidia Szajko. "All my life I've fought for acceptance in my family and my community," Clarence said that day, "and for a fleeting moment that acceptance felt pretty replete and it was a great feeling. And to have it suddenly taken away feels like a body blow."
The constitutional cases filed in March 2004 were consolidated with others around the state and brought before San Francisco Superior Court Judge Richard Kramer in December. Another disqualification attempt this time aimed at the entire San Francisco bench, because of the domestic partnership between Donna Hitchens, then the court's presiding judge, and Judge Nancy Davis was denied.
As is his custom, Kramer recalled in an interview this month, he "got the lawyers together and said 'OK, what's this case really about and how are we going to run it?'" As he remembers it, the parties agreed that little factual evidence would be necessary; according to Herrera, the city "agreed" only under substantial prodding by the judge. Ultimately, the case would be presented over a mere two days in December 2004.
"The factual stuff is a lot more emotional than the legal stuff," Kramer explained. "You had to be real careful. You can lose the focus on an important question by not running it properly."
At the hearings, Senior Assistant Attorney General Louis Mauro urged Kramer to leave social policy to the Legislature. He pointed out that voters in some states had rebelled against judicial attempts to redefine marriage by passing constitutional amendments to ban it.
"Did you just tell me it's unconstitutional, and you have to change the Constitution to remedy the situation?" Kramer asked Mauro.
It might have been meant as a joke, but that's exactly how it played out.
Three months later, Kramer ruled that Prop 22 amounted to discrimination against gays and lesbians and should therefore be subject to strict scrutiny, a test it could not meet. Nor could it meet the much-less stringent rational basis test, the judge wrote.
"The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal," Kramer wrote.
Liberty Counsel's Mathew Staver promised to appeal, calling the rational basis analysis "absurd, shocking and astounding."
Kramer's reasoning would be echoed in future rulings from the California Supreme Court and U.S. District Judge Vaughn Walker. Staver's criticism has gained some vindication, too even in striking down the Defense of Marriage Act last year, the U.S. Court of Appeals for the Second Circuit conceded it might meet "classical rational basis review."
Asked what he remembers about the trial, Kramer says "a million things." High on the list is the unparalleled interest from the public. He recalls putting out his order at 10 a.m. By 10:45, people were asking his daughter, who was attending college on the opposite coast, "Is that your father?"
To this day, he says, strangers will approach him at legal conferences and say, "Hey, aren't you that guy?"
Despite the intense scrutiny and the polarizing nature of the issue, Kramer says it wasn't difficult to reach a decision. "If you're pretty sure you're going to piss off half the people no matter what you do, that takes the pressure off, I have to say."
Kramer's ruling proved to be the last big hurrah for the marriage equality movement for several years. The California Legislature passed a law authorizing same-sex marriage in 2005, but Schwarzenegger vetoed it. In July 2006 the highest courts of New York and Washington State found no right to same-sex marriage under their constitutions. That same month, the Eighth Circuit upheld a Nebraska voter initiative that forbade the state from bestowing recognition of any kind on same-sex couples. "One of the judges asked me, why shouldn't I be allowed to marry my dog?" said the ACLU's Lange, who argued the case. "That should give you a good idea of the legal climate at that time."
For same-sex marriage proponents, it only got worse in October of that year. By a 2-1 vote, the First District Court of Appeal reversed Kramer. "We believe it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union," Justice William McGuiness wrote, "while at the same time providing equal rights and benefits to same-sex partners through a comprehensive domestic partnership scheme."
Justice J. Anthony Kline dissented. "We are not being asked to redefine marriage," Kline wrote, "but simply to say that the Legislature cannot define it in a way that violates the Constitution."
At the time, NCLR's Minter called the majority opinion "anemic" and, in a way, encouraging. "I don't remember saying that," he says today, "but that is what I thought. To me, the message of that decision was, 'We're passing the buck upstairs.'"
ALL EYES ON THE CHIEF JUSTICE
As In re Marriage Cases was being briefed to the California Supreme Court, Herrera began testifying at municipalities and counties around the state, urging them to sign on as amici curiae in support of same-sex marriage. A key battle came in San Diego, California's second-largest city and one of its more conservative. The City Council voted to join, but Mayor Jerry Sanders indicated he planned to veto the resolution. After emotional meetings with same-sex members of his own staff, and his lesbian daughter, Sanders held a tearful news conference the next day announcing he'd changed his mind. "In the end, I couldn't look any of them in the face," Sanders said, and tell them that their relationships "were any less meaningful than the marriage I share with my wife."
The California Supreme Court recognized the historic potential of the case, putting all the briefs online and televising the three-hour argument. Special attention was being paid inside the court as well. Moreno says that rather than assign one of his staff attorneys to the case, which would be his usual practice, he consulted with all five. "Clearly it was a case that captivated all of us and our respective staffs," Moreno said this month.
On March 5, 2008, Stewart, Minter and other attorneys asked the court to strike down the ban. "Tradition alone is not a basis in and of itself for continuing a law," Stewart told the court.
Justice Joyce Kennard, Kathryn Mickle Werdegar and Moreno, who had written separately in the Lockyer case, sounded sympathetic. The court's more conservative justices Marvin Baxter, Ming Chin and Carol Corrigan appeared skeptical. All eyes fell on Chief Justice George as deputy AG Christopher Krueger argued that the state limited marriage to a man and a woman "because that's been the understanding of what marriage is in our society."
The same was true of bans on interracial marriage that California courts outlawed in the 1940s, George said. "That was part of the tradition, wasn't it?" he said. "That's their point, so I'd like you to come to grips with how you deal with that."
Three months later, the court would declare same-sex marriage legal not just in San Francisco, but throughout the nation's most populous state. The vote was 4-3, with George writing the majority opinion. "The California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples," he wrote in In re Marriage Cases, 47 Cal.4th 757.
To the dissenters, the court was moving too quickly to embrace an idea rejected by the voters. "Only one other American state recognizes the right the majority announces today," Baxter protested.
"We are in the midst of a major social change," Corrigan wrote. "For some the process is frustratingly slow. For others it is jarringly fast. In a democracy, the people should be given a fair chance to set the pace of change without judicial interference."
"When ideas are imposed," she added, "opposition hardens and progress may be hampered."
If the pace of change seemed fast, it was about to go into overdrive. Within a year of the California Supreme Court's decision, the high courts of Connecticut and Iowa found constitutional rights to same-sex marriage, while New Hampshire, Vermont and Maine blessed same-sex weddings legislatively.
From Lange's perspective, each victory has helped reinforce the next. "The fact that there's political safety gives people the right to vote their conscience," she says, "and voting their conscience usually leads to equality."
a constitutional amendment
In California, though, Corrigan was being proven prescient. Even before Marriage Cases was issued, opponents of same-sex marriage had obtained enough signatures to qualify a new voter initiative as a constitutional amendment. As same-sex couples wed all over the state during the fall, Proposition 8 was gathering momentum at the polls.
Chief Justice George cautioned his colleagues against performing same-sex nuptials for appearance's sake, Moreno recalls, but Moreno says he disagreed because the court's decision had rendered the marriages legally valid. "I think I performed about six same-sex marriages even knowing the ultimate issue in Prop 8 might pass and come before us," he says.
Prop 8 would indeed pass, restoring the previous, opposite-sex definition of marriage.
The city of San Francisco, now joined by Los Angeles, Santa Clara County and several same-sex couples, went back to the Supreme Court, arguing that Prop 8 represented an unauthorized revision to the state Constitution. But George quickly threw cold water on the idea at the March 2009 arguments. The people have spoken, George would write for a 6-1 majority in Strauss v. Horton, 46 Cal.4th 354, and the court had been overruled.
Moreno dissented. "Someday at some point my dissent will be the majority view in California," Moreno said in a 2009 interview. "I think that's where the law is headed."
For NCLR's Minter, the Strauss decision was "unbearably sad." But there were two positives. First, the court left intact the 18,000 same-sex weddings that were performed between the Marriage Cases decision and Prop 8 he credits Michelle Friedland and others at Munger, Tolles & Olson with persuasively briefing that issue. And second, he says, the court didn't mince any words in saying that Prop 8 created an exception to the equal protection clause for gay and lesbian couples. "The California Supreme Court's interpretation of the state Constitution is binding on federal courts."
PULLING THE TRIGGER
Throughout the litigation, advocates for same-sex marriage had debated internally whether and when to bring a claim not only under a state constitution, but the U.S. Constitution as well. The ACLU had tried it once "after much, much discussion," says Lange. That was the Nebraska case which led to the Eighth Circuit discussion about marrying a dog.
A federal claim's ultimate success would probably hinge on the U.S. Supreme Court, too, and nobody wanted to fire that bullet unless they had to.
That is, until the day Strauss was issued, and an unlikely legal duo announced it was preparing just such a case. Gibson, Dunn & Crutcher's Theodore Olson and Boies, Schiller & Flexner's David Boies, the antagonists of Bush v. Gore, filed a challenge in San Francisco federal court on behalf of Marriage Equality and several same-sex couples who wanted to wed.
"We believe the courts are ready to grant equality to citizens based on sexual orientation," said Olson, a former solicitor general under President Ronald Reagan, in announcing the challenge.
Initially, the advocacy groups who'd been fighting for years in state courthouses and legislatures had a freak-out. "If it was just about hiring a good lawyer and filing a good brief, we'd have won decades ago," Evan Wolfson, executive director of Freedom to Marry, said at the time.
"I was absolutely stunned and flabbergasted," Minter said this month. "For a very short time I feel embarrassed to say this now I was worried. I wondered if Ted Olson was sincere.
"Very quickly, though, like within a day, I realized this was fantastic."
Over at San Francisco's federal courthouse, then-Chief Judge Walker was looking through the latest batch of complaints assigned to his chambers, and noticed the name Schwarzenegger in one of the captions.
"I thought, 'Well, this is going to be interesting,'" Walker recalled at a lecture last year. "And then I started reading it and I had one of those 'ohhh shit' moments."
The judge was planning to retire in 2010, though he hadn't announced it yet. "It seemed to me this was a case we had to see all the way through."
'discrimination on trial'
Walker's trial would be different from the streamlined case put before Kramer. The first sign came June 30, 2009, when Walker requested detailed briefing and urged the parties to "proceed expeditiously" to trial. A few months later he denied the Prop 8 proponents' motion for summary judgment, saying the issues they raised were "prime issues for trial."
Walker also proposed to make video recordings of the trial public, and the Ninth Circuit Judicial Council complied, authorizing televised proceedings on the eve of trial in December 2009. That was too much for the U.S. Supreme Court, which issued a 5-4 order the next month saying the court could not "change its rules at the eleventh hour to treat this case differently than other trials in the district."
Warren, the judge who first heard the 2004 litigation, said he thought it was unusual for the high court to reach down to a trial-level administrative issue, and wonders if that was "almost a premonition of a decision on the merits." The ACLU's Lange thinks it was significant, too. "I think the other side won a big victory in keeping the video under wraps," she says. The trial "told a really compelling story."
During the three-week trial, the plaintiff couples described how it had felt to realize they were gay, to come out, how anti-gay bias made them feel, and what marriage would mean to them. "I want to share the joy and happiness that my parents felt," plaintiff Jeffrey Zarillo testified.
Boies and Olson called social scientists from institutions like Harvard and Yale to testify about gay stereotyping and the Prop 8 election campaign. Herrera brought in Sanders, the San Diego mayor he met during the amicus campaign, to describe his own personal evolution. "We were putting discrimination on trial," Herrera says.
The Yes on 8 campaign, led by Charles Cooper of Cooper & Kirk, argued that voters could rationally oppose same-sex marriage without being motivated by personal animus against gays and lesbians, He cited President Barack Obama, who was then on record opposing same-sex marriage, as a prime example.
But Cooper would call only two witnesses, and one of them, David Blankenhorn, has since publicly announced his personal support for same-sex marriage.
"Your honor, you don't have to have evidence of this from the authorities," Cooper told Walker during closing argument.
"You don't have to have evidence?" Walker asked.
Even before Walker issued his ruling, the federal case law Cooper was relying on had started to crumble. The U.S. Supreme Court ruled in June 2010 that homosexuality is more than a matter of conduct, and the next month a U.S. district judge in Massachusetts declared the federal Defense of Marriage Act unconstitutional.
Still, Walker's 136-page ruling in Perry v. Schwarzenegger, issued Aug. 4, 2010, was a bombshell. Although the legal rationale was familiar, the ruling contained 55 pages of factual findings, including that same-sex couples "are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions" and that "Proposition 8 places the force of law behind stigmas against gays and lesbians."
To Minter, calling the Prop 8 trial "historic" seems weak. "It was like getting a crash-course, advanced degree in the history of discrimination against gays and lesbians and on marriage equality in two weeks."
ANOTHER RECUSAL EFFORT
During trial, Walker's own orientation became the subject of public discussion. "Judge being gay a nonissue during Prop 8 trial," the San Francisco Chronicle reported, describing Walker's homosexuality as "an open secret" around the S.F. legal community.
A year later it became an issue. In April 2011 the Prop 8 proponents sought to vacate Walker's ruling and disqualify him from the case. "If at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an 'interest that could be substantially affected by the outcome of the proceeding,'" Cooper wrote.
It's clear the issue rankles Warren, the former superior court judge. "It's not rocket science," he says. "A black judge can hear a case about racial discrimination. An older judge can hear a case on age discrimination. A gay judge can hear a case on sexual orientation discrimination. It almost underscores the emotional bias" to make the claim.
Judge James Ware, who had succeeded Walker as chief judge of the Northern District, saw it the same way. "The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification," Ware concluded, rejecting the motion.
who has standing?
Meanwhile, a key appellate issue had emerged just weeks after Walker's ruling. With neither Schwarzenegger nor new attorney general Jerry Brown defending Prop 8 any longer, the Ninth Circuit asked for briefing on whether proponents of the ban had standing to appeal. The proponents went to the California Supreme Court, asking the justices to order Brown and Schwarzenegger to defend the law, but the court declined.
Appellants "must have a personal, concrete, particularized injury, and they don't," Boies argued to the Ninth Circuit in December 2011. Instead of deciding the standing issue immediately, the Ninth Circuit certified it to the California Supreme Court, and in 2012 new Chief Justice Tani Cantil-Sakauye concluded that ballot initiative proponents do have standing under California law to defend measures when elected officials abandon them.
With the standing issue settled, the Ninth Circuit ruled 2-1 in 2012 that California voters had no legitimate reason for taking away the judicially recognized right to marry.
"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," Judge Stephen Reinhardt wrote.
Prop 8 proponents had sought to remove Reinhardt from the panel because of his marriage to Ramona Ripston of the ACLU. Reinhardt declined.
The detour to the California Supreme Court delayed resolution of the case by almost a year. That chafed the Boies-Olson team at the time, but in retrospect the extra 12 months could help them at the high court. Just last fall, Washington, Maryland and Maine became the first states where voters enacted legislation legalizing gay marriage, and the Second Circuit became the first federal appellate court to explicitly rule that gays and lesbians are a suspect class under the equal protection clause.
By contrast Reinhardt's majority opinion avoided the broader question of a federal constitutional right to same-sex marriage. He ruled only that once it was given, it couldn't be taken away. "That's a very state's rights formulation of the problem," says Warren. "I thought that the United States Supreme Court would not grant cert for that reason."
But the court took up the case last fall, along with the Second Circuit ruling that struck down DOMA. And, echoing the Ninth Circuit, the high court explicitly asked the parties to brief the issue of standing.
Whatever the high court decides, there can be little doubt that California's same-sex marriage litigation has been transformative.
Nine states and the District of Columbia now allow same-sex couples to marry. Obama has "evolved" to a position of support, and conservative leaders like Senator Rob Portman of Ohio have changed their positions. "You've seen people on both sides of the aisle rushing to get on the train," is how Herrera puts it.
If the Supreme Court agrees with San Francisco, it may have to overrule its own 1972 order in Baker v. Nelson, where it summarily dismissed an argument for same-sex marriage. San Francisco lawyer Sanford Rosen, of Rosen Bien Galvan & Grunfeld, remembers tracking that case 41 years ago as a young attorney at the ACLU. "It was a different world then," says Rosen, a former resident of Baltimore who still can't quite believe that Maryland voters ushered in same-sex marriage last fall. "When an idea's time has come, it's like a tidal wave."