Redeeming the Dream: The Case for Marriage Equality

Afew words about the origin of our collaboration and why we have written this book.

Our joint enterprise to challenge and overturn California’s Proposition 8 had its origins in the most unlikely of contexts. In the fall of 2000, we found ourselves polar opposites in one of the most dramatic, intense, and hard-fought legal and political contests in our nation’s history as Democrat Al Gore and Republican George W. Bush, candidates for president, battled over who would receive Florida’s electoral college votes and election victory. Although a few presidential elections wind up being landslides, most are spirited and close contests and are not decided until election day. In 2000, though, even election day was not the end of the line: Legal battles and political turmoil would unfold for another five weeks before the outcome was finally decided.

The electoral college system allows each state to select “electors” based upon the size of its congressional delegation. And because most states choose electors on a winner-take-all basis, large popular vote margins in heavily populated states can be offset by considerably smaller margins for the opposing candidate in less populated states. Thus a candidate with less than a majority of the popular vote in a presidential election, or even with fewer popular votes than an opponent, can win a presidential election. Prior to 2000, three persons were elected president while losing the popular vote: John Quincy Adams in 1824, Rutherford Hayes in 1876, and Benjamin Harrison in 1888. It happened again in 2000, but the final result that year became known only after a bitter fight for the electoral votes of Florida, which were ultimately awarded to Texas governor George W. Bush over Vice President Al Gore as a result of a decision of the U.S. Supreme Court on December 12.

The electoral college system, a peculiarly American invention, has its supporters and detractors. On the one hand, it encourages campaigning in less populous states; on the other, it can lead candidates largely to ignore the voters in populous states like California, Texas, and New York when one or the other of the candidates has a lock on the vote. But because it is engraved in the Constitution, it is not likely to go away anytime soon.

While scores, if not hundreds, of lawyers were involved in the legal skirmishes that took place in federal courts and the courts of Florida, the two of us were the principal opposing Supreme Court advocates who squared off against each other at the Court’s oral argument on December 11, 2000, when the matter came to a climax.

The controversy stemmed from the razor-thin closeness of the Florida popular vote. The winner would receive Florida’s twenty-five electoral college votes and the election. The lead switched back and forth on the night of election day, with Bush seeming to hold a very slight edge as the initial counting was ending. At one point Gore conceded, and then withdrew his concession. Legal battles began even as dawn approached Florida on the following morning. While Bush clung to and fought to preserve his slight lead, controversies arose immediately as officials struggled over how to deal with the now infamous “butterfly” ballot, as well as veteran and absentee ballots, and the manner in which punch-card ballots were to be tabulated. Recounts were demanded, started, opposed, stopped, started again, and stopped again. The Florida Supreme Court ultimately rendered three decisions on various aspects of the recount process and the deadlines for counting votes, and the U.S. Supreme Court twice heard arguments and rendered opinions overturning the Florida Supreme Court (the first of which was argued for Bush by Ted but argued for Gore not by David but by another member of the Gore legal team).

With the numerous rulings by the courts and Florida election officials, new recount totals, and conflicting tabulations, the possible outcome seemed to change daily. The Bush lead kept shrinking with each new count. The world was transfixed by the avalanche of lawsuits and competing explanations and arguments by the campaign spokespersons and their lawyers. David led the Gore legal team and appeared frequently on television, explaining and defending the Gore position. Ted was performing similar duties for Bush, in court and in the public arena.

The day-to-day drama of the recount controversy has been depicted in exhaustive detail—including in David’s own book Courting Justice and in the popular HBO television film Recount—and will undoubtedly be written about again and again. We will, for now, leave that to others. For the two of us, it all came down to our appearance before the Supreme Court of the United States on December 11. With the election of the forty-third president of the United States hanging in the balance, all of us were exhausted and sleep-deprived after five weeks of nonstop work. Had it gone on another day, it is far from clear that any of us would have remained standing.

Outside, on that Monday in December, the Supreme Court was surrounded by satellite trucks, cameras, reporters from all over the world, competing protestors with handmade posters and manufactured signs, tourists, and the simply curious. Inside, the courtroom was packed with leaders of the respective campaigns, members of Congress, journalists, dignitaries and celebrities, lucky members of the public who had managed to score a ticket, law clerks, and lawyers, lawyers everywhere.

In the moments before a Supreme Court argument, opposing counsel meet with the Supreme Court clerk, mostly to make sure everyone knows the ground rules and to receive last-minute guidance from the clerk concerning any changes in procedure. That meeting typically takes place in the lawyers’ lounge, adjacent both to the courtroom and to a small office reserved for the solicitor general. On this day the lounge had been reserved as an overflow room where spectators could hear an audio broadcast of the argument, so the meeting took place in the clerk’s office.

The Court’s clerk, William K. Suter (who retired in 2013), formerly the acting judge advocate general of the army, is a tall, distinguished man, with the erect bearing that befits a retired army general. Elegantly dressed in the customary morning suit worn by certain Court officials and representatives of the solicitor general’s office, he went over the protocol with us, mindful, as everyone was, that this was an historic occasion, like few others in the Court’s history. He explained the day’s procedures and tried to put us at ease with a few light comments about the Court and his office, which was decorated with an autographed photograph of himself and Private First Class Elvis Presley, who had trained with him at Fort Hood in 1958. It was a noble effort, but nothing was going to put either of us at ease with the presidency at stake and the whole world watching. We then entered the courtroom and took our positions on opposite sides of the podium facing the justices, who entered shortly thereafter. The tense but respectful and professional argument ensued.

In his oral arguments, David urged the Court to allow the statewide manual recount of votes ordered by the Florida Supreme Court. He argued that state officials should make every effort to decipher individual ballots so they might “count every vote.” Ted’s position was that the Supreme Court should uphold the properly granted certification of a Bush victory by the Florida secretary of state. He argued that the recount ordered by the state court amounted to a “major restructuring of the Florida Election Code” with “evolving” standards varying “from county to county” that would be “different throughout sixty-four different counties.”

Although the suspense seemed to last forever, especially for those of us who had been in the trenches—this included all our colleagues and many reporters—the conclusion came just thirty-six hours later. At around 10 P.M. on December 12, the clerk’s office called the competing lawyers and announced the Court’s decision, as copies were handed out to exhausted, confused, frazzled, and windblown reporters standing on the courthouse steps, who began to try to explain the decision to their respective broadcast audiences. The recount was stopped, and the election was finally declared over—Bush was the winner.

Vice President Gore delivered a gracious but heavy-hearted concession speech the next evening. The nation, and the world, began the process of moving on.

It was out of that historic controversy that our friendship developed and ripened. When Ted was nominated by President Bush in February 2001 to be solicitor general, the government’s advocate in the Supreme Court, a partisan confirmation battle ensued. Emotions from the close election were still running high, and Democratic senators, still smarting from the Supreme Court decision, were decidedly cool to the idea of putting Ted in the position of the nation’s top Supreme Court lawyer. David, however, lent Ted his support, including a personal appeal to Senator Edward M. Kennedy, with whom he had a close relationship.

When Ted was finally (narrowly) confirmed by the Senate, David and his wife, Mary, attended his swearing-in at the Justice Department. Later that year David and Mary offered comfort to Ted when his wife, Barbara, was murdered by terrorists on September 11 when the plane she was on, American Airlines Flight 77, was hijacked and flown into the Pentagon. Later that fall, at a formal dinner in Washington attended by two thousand or so Washingtonians, Ted was the presenter when David received an award for his inspirational accomplishments in overcoming a learning disability. A prolonged standing ovation was accorded the two of us—an emotional outpouring of appreciation for the fact that two former adversaries could come together with respect and affection for each other in a city emotionally exhausted and wounded by the close election, the 9/11 attacks, and a frightening and deadly anthrax incident soon afterward.

As time went by we began to spend more time together socially. While we differed on many political issues, we found we had much in common, including our respect for and dedication to the law, and our love of fine wine. David and Mary were present in Napa Valley in 2006 when Ted married his wife, Lady. The four of us enjoyed bicycling in Italy, France, Croatia, and Ireland together with friends in the succeeding years.

We frequently discussed seeking opportunities to work together on a case one day, although we occasionally found ourselves yet again on opposite sides of the courtroom. Ironically, in one case, Ted, the conservative, wound up representing labor—the NFL Players Association—while David, the liberal, represented management—the NFL and team owners. In another we were on opposing sides in a high-stakes battle between owners of Argentinian bonds.

It wasn’t until 2009 that our chance finally to team up arose in our former home state of California.

Proposition 8 was a watershed event of sorts in California’s—and America’s—history. Just about everything major that happens in California, from the Gold Rush, to the Reagan revolution, to the property tax revolt, reverberates nationally. When it isn’t mocking or satirizing California, the rest of the country adopts, adapts, mimics, emulates, or envies what happens there.

Unfortunately California, a progressive state in many respects, with a frontier and welcoming attitude, also has a regrettable history of inequality and discrimination. This includes the institutionalized mistreatment of Chinese immigrants who helped build the state; the internment of Japanese Americans (albeit directed by the federal government) in camps in California during World War II; racial discrimination against and ghettoization of African Americans, leading to urban riots during the 1960s and 1970s; and a statewide ballot proposition in the mid-1960s to repeal fair housing laws. The last was ultimately overturned by a 5–4 Supreme Court decision.

But California has also become a remarkably diverse society, rich in multiple subcultures from Asia, distinctive Latino populations, blacks, Armenians, and innumerable other nationalities and ethnicities. California’s Supreme Court was the nation’s first, in 1948, to strike down laws prohibiting interracial marriage, beating the U.S. Supreme Court to that milestone by nineteen years. In 2008 the California Supreme Court was also one of the first to strike down a state law limiting marriage to the union of a man and a woman.

Although we were both born in Illinois, within six months of each other, our parents brought us to California at an early age (David to Southern California, Ted to the Bay Area). We grew up in families that taught us to appreciate the differences between individuals in our society and to believe in principles of equality, to respect the views and backgrounds of others, and to be sensitive to the rights of our fellow citizens. We were both educated in California public schools and California colleges, and so the state’s racial, ethnic, and cultural melting pot became part of our DNA. Honoring the differences between individuals and understanding their perspectives, as well as a certain libertarianism, were qualities we took almost for granted as Californians.

It thus came as a surprise, even a shock, to both of us, as it did to many others who consider themselves Californians, when, six months after the California Supreme Court issued its decision upholding the right of gays and lesbians to marry, California voters took that right away by a popularly enacted amendment to the state’s constitution. The incongruity of this measure, Proposition 8, seemed even more pronounced given that the vote that passed it took place the same day that an African American man, the product of an interracial marriage, was elected president of the United States, with the overwhelming support of California voters. What was going on?

We both felt deeply that Proposition 8 was wrong and fundamentally at odds with our vision of America, and with our understanding of California and Californians. As we describe in these pages, we vowed to do everything we could to reverse this immensely unfortunate and strikingly un-Californian, and ultimately un-American, decision. Throughout our effort we kept in mind the Reverend Martin Luther King Jr.’s famous Letter from Birmingham City Jail, in which he responded to pastors and others who had urged him to proceed slowly in the pursuit of equal rights because they feared a backlash. He wrote that “for years now I have heard the word ‘Wait!’ It rings in the ear of every Negro with piercing familiarity. This ‘Wait’ has almost always meant ‘Never.’” King made a similar point in his famous “I Have a Dream” speech when he declared, “This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. . . . Now is the time to make justice a reality for all of God’s children.” We believed that Reverend King’s vision for America included equality for all, and that our efforts could help redeem the dream for those whose lives, loves, and aspirations had been diminished and demeaned by Proposition 8.

This book will tell the story of how we joined to fight to overturn Proposition...