For the case, Griffin wanted, as he put it, “the lawyers Microsoft is going to want, not the lawyers who are going to do it pro bono.” And for that he needed to raise money. He formed a foundation, the American Foundation for Equal Rights, whose logo evokes the American flag, not a rainbow. He and Schake sit on the board, along with the Reiners, Bruce Cohen, and Dustin Lance Black, the screenwriter of “Milk,” the 2008 bio-pic about Harvey Milk. In four weeks last spring, Griffin told me, he raised “millions of dollars”—“all from individual donors who have a history of caring about this issue. Less than a dozen. Gay and straight.”

Olson believed, as he recalled, “that it would be very important to balance my reputation as a conservative . . . with someone who had a reputation as being on the other side of the political spectrum.” It would send a powerful message of bipartisanship, Olson felt, and “allay people’s suspicions of ‘What in the world is Ted Olson doing?’ ” During a conference call with Griffin, Reiner, and others, Olson suggested David Boies. Though Boies had lost to Olson in Bush v. Gore, his track record as a litigator is formidable—he is known as a fierce cross-examiner. In the last few years, he has successfully defended Nascar against antitrust charges, won for American Express a record four-billion-dollar settlement from other credit-card companies, and represented the filmmaker Michael Moore when the Treasury Department opened an investigation of a trip that Moore had taken to Cuba. Olson had become friends with Boies, and thought he was “fun to work with.” Griffin and the others were enthusiastic about Boies, and Olson recalls that when he approached him “there wasn’t a moment’s hesitation.”

Boies told me that the issue had been on his mind ever since 2004, when San Francisco had its brief experiment with gay marriage: “I remember being struck by all those powerful images of people from all over the country flying to San Francisco and lining up to get marriage licenses. If it was something that was really so important to people, it was really something that needed to be addressed.”

Meanwhile, Griffin had begun discreetly looking around for potential plaintiffs—same-sex couples who wanted to get married in California but hadn’t done so in the six-month window between the state Supreme Court decision and the passing of Proposition 8. The plaintiffs needed to be willing to be the public faces for a court case that could take years to resolve, and that many gay activists considered unwise. It isn’t easy to find the right plaintiffs for a high-profile constitutional case. There have been plaintiffs before the Supreme Court who made moving and stalwart examples of the principle they were upholding, and plaintiffs who faltered on the job. Mildred and Richard Loving, the interracial couple, were close to ideal. They were blessed with a name so perfectly suited to their case that, had they been fictional characters, you would never have believed it. And they were not professional activists. He was a white bricklayer and she was a homemaker of African-American and Native American descent, and all they wanted was to be married and to live in Virginia, near their families. “Tell the Court I love my wife,” Richard Loving said to one of his lawyers. “It is just unfair that I can’t live with her in Virginia.”

Though it doesn’t matter from a legal point of view what happens to plaintiffs after their case is resolved, their post-Supreme Court life can affect how people view their cause. The Lovings, who had three children, remained married until Richard Loving died, in a car accident, in 1975. They seldom gave interviews, though on the fortieth anniversary of the decision Mildred Loving issued a statement: “Not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.”

Norma McCorvey, who later revealed herself as the Jane Roe in Roe v. Wade, was a more problematic plaintiff. A former carnival worker who’d had an unusually rough life, McCorvey was twenty-one and pregnant with her third unplanned child when she became a plaintiff for Roe. She never had the abortion she’d been seeking—her case was decided too late—and she gave the baby up for adoption. In the nineties, she renounced her role in Roe, saying she’d been led astray by her crusading young lawyers, and began to work for the anti-abortion group Operation Rescue. In 2003, she even petitioned a federal district court to overturn Roe. McCorvey was the sort of plaintiff who should have been better vetted, and whose unhappy trajectory became a metaphor for ambivalence about abortion itself.

In a case about marriage rights, lawyers want to find couples who are likely to stay together—not always an easy prediction to make, especially given the stresses of the case. As Mary Bonauto, the lawyer who brought the 2003 suit that legalized same-sex marriage in Massachusetts, told me, “You want people who can withstand the rigors of a multiyear process.” You don’t need “picture-perfect people,” Bonauto said, but you do need the “kind of people you wouldn’t mind sitting in a room and chatting with, no matter who you are. We are always concerned about people who are overeager to be plaintiffs, and people who are huge activists.” Ideally, you want people who are just “living their lives” but are running up against a clearly defined problem because of a misguided law. You don’t want glib types who are too fluent in movement jargon, but you do want people who can talk easily in a courtroom or to reporters, without stumbling into reality-TV-style oversharing about their romantic life.

One doesn’t advertise for plaintiffs in a case like this. Instead, Griffin got in touch with people he knew, or knew of. As he put it, “I’m gay. I live in California. I know a lot of gay couples.” One day, he was speaking on the phone with Kris Perry, a woman he and Reiner had known for years, because she was active in children’s-policy debates and was now the executive director of First 5, a state agency that promotes health and education for young kids. Perry and her partner, Sandy Stier, a tech-support manager who works for Alameda County, live in Berkeley, and are raising four boys, ranging in age from fifteen to twenty-one. Griffin asked Perry if she might be interested in working on a big project to restore marriage equality. As Perry recently recalled to me, she wasn’t sure until he explained that it was a federal lawsuit. “Oh,” she recalls thinking. “You mean there might be a permanent solution? We get to talk about this in a nonpolitical way? Now I’m really interested.” As Perry sees it, “A lot of people out there have gay-marriage fatigue. Sandy and I even have gay-marriage fatigue! With every political defeat, there is a certain level of humiliation.” Perry and Stier arranged to come home early from work one day to discuss the prospect with each other, and with each of their children. One of the boys asked if their case was kind of like Brown v. Board of Education, which he was studying in school. Yes, they told him. Perry and Stier figured that they were in a better position than a lot of other committed couples to do something like this. “We’re in stable parts of our careers,” Perry said. “Our children aren’t really young, we live in a really liberal place, and we weren’t worried about a lot of rejection from neighbors and friends.”

Griffin also approached Paul Katami and Jeff Zarrillo, a couple in the San Fernando Valley, whom he knew through mutual friends. Katami, who is a fitness expert and a consultant, and Zarrillo, who works for a chain of movie theatres, are both in their late thirties, have been together for almost nine years, and are good-looking, polished, and articulate. They were the kind of obviously well-suited couple whom friends and family felt comfortable nudging to just get married already, and they were both severely disappointed when Proposition 8 foreclosed the possibility. The idea that marriage equality “could take a generation if we continue to go state by state,” as Zarrillo said, frustrated them. When Griffin told them about the lawsuit, they liked the idea of being involved in something that “put a respectable face to the fight,” Katami said. “I didn’t want to just come out with my arms swinging.”

In San Francisco, Olson and Boies will be arguing that marriage—and, by extension, the right to marry the person you choose—is a fundamental right. The first part isn’t so difficult. Marriage is one of the rights—along with, for instance, the right to vote, to travel from state to state, and to bear children—that the Court has repeatedly elaborated on and endorsed, though they are not stipulated in the Constitution. In 1974, for example, the Court declared that “the freedom of personal choice in matters of marriage and family is one of the liberties protected by the Due Process clause,” and in 1987 it affirmed the rights of prison inmates to the emotional support, “spiritual significance,” public commitment, and expectation of consummation that come with marriage. Whether these decisions necessarily entail the right to marry a person of the same sex is another matter. Certainly, it could be construed that way, and needn’t mean, as opponents of same-sex marriage sometimes claim, that the Court would then have to allow a person to marry a child, or his sister, or his dog. Constitutional rights are not absolute—free speech does not extend to obscenity, for instance—and since marriage is a contractual relationship both parties must be in a legal and mental position to agree to it. And one could argue that legitimate interests allow the state to ban incestuous and polygamous marriages, for example. (Then again, opponents of same-sex marriage argue that legitimate moral interests justify banning gay unions.)

“You will make the same foolish mistakes you have made before, not only once but many, many times again.” Facebook

Twitter

Email

Shopping

Olson and Boies must also convince the Court that Proposition 8 violates the Constitution’s Equal Protection clause by assigning gay or lesbian citizens a different, lesser status with regard to marriage rights. When the Supreme Court decides if a law violates the Equal Protection clause, it engages in one of three levels of scrutiny: “rational basis,” intermediate, or strict. If the court uses strict scrutiny, the law in question will be struck down unless it can be shown to have been “narrowly tailored to further a compelling interest” of the state. (It was by subjecting laws against interracial marriage to strict scrutiny that the Court ruled, unanimously, in Loving v. Virginia.) Strict scrutiny is applied only when a law either interferes with a fundamental right or deals with a so-called “suspect” classification: religion, race, ethnicity, or national origin.

If Olson and Boies can convince the Court that the fundamental right of marriage includes the right to marry someone of the same sex, that will get them a long way toward victory. They will also try to convince the Court that sexual orientation is a suspect classification, and that gays and lesbians have been subject to a history of discrimination, are defined by an immutable characteristic that “bears no relation to their ability to perform or contribute to society,” and are “politically powerless,” in this case, to win marriage equality. This argument is trickier. Though gays and lesbians lost at the polls in California, can they really be said to be politically powerless? Just how immutable homosexuality is remains a hotly contested question. And the Court has never before defined sexual orientation as a suspect classification.

Even if the Court declined to apply strict scrutiny, Boies told me, he could still argue that Proposition 8 fails the much more commonly applied “rational basis” scrutiny. Under that test, a law is considered valid as long as it is logically related to a plausible state interest. But, Boies says, “There is overwhelming evidence of damage to gay and lesbian couples who cannot marry—and to their children—and no evidence that permitting gays to marry damages heterosexual couples. The idea that heterosexual couples won’t get married because their gay neighbors can is ridiculous. If you’re going to deprive citizens of basic rights, even under a rational-basis test, you have to show that it’s of benefit to somebody.” Olson and Boies will aim to show that the motivation for Proposition 8 could only have been animus—a rationale that the Court does not look kindly on. In the 1996 case Romer v. Evans, for instance, it ruled that a Colorado amendment that excluded gays and lesbians from anti-discrimination laws was motivated by anti-gay feeling, and was therefore unconstitutional.

So far, Judge Walker, who was appointed to the federal bench in 1989, by George H. W. Bush, has made it clear that he has an eye toward both the high court and history. He has allowed the trial to be videotaped, and plans to let the proceedings be uploaded to YouTube each evening. (Boies and Olson supported the arrangement; their opposing counsel argued vigorously against it.) Walker could have relied primarily on legal filings to make his decision, but instead has opted to admit oral testimony on everything from the history of marriage to the history of anti-gay discrimination, from the fitness of gays and lesbians as parents to the definition of homosexuality. Boies and Olson are happy with this expansive approach. They are eager to cross-examine witnesses. And to help establish animus they plan to introduce as evidence material from the “Yes on 8” campaign that lawyers for the opposing side consider confidential. Among other documents, they have obtained a fund-raising letter from a pro-8 activist named Bill Tam, which warned that if Proposition 8 lost “other states would fall into Satan’s hand,” and “every child, when growing up, would fantasize marrying someone of the same sex.”

The legal team on the other side will be led by Charles Cooper, a Washington lawyer who succeeded Olson as assistant attorney general under Reagan, and by the Alliance Defense Fund, a sort of Christian-conservative counterpart of the A.C.L.U. (The State of California, in the person of Governor Arnold Schwarzenegger, declined to defend Proposition 8, leaving it to private lawyers to fill in.) Cooper will argue that California indeed has a rational interest in upholding “procreative marriage.” As Cooper told the Judge at a pretrial hearing, in October, the traditional definition of marriage has “prevailed in every civilized society throughout the ages” and “still prevails everywhere in the world, with the exception of five American states, and seven foreign countries.” (Since then, Portugal has become the eighth country to legalize gay marriage.) With Proposition 8, Cooper said, California voters merely defended that tradition. A court, therefore, “should not lightly conclude that everyone who held this belief was irrational, ignorant, or bigoted.” At the heart of the case “are two competing conceptions of the institution of marriage, and of its central purpose,” Cooper declared. “We say that the central and the defining purpose of marriage is to channel naturally procreative sexual activity between men and women into stable, enduring unions for the sake of begetting, nurturing, and raising the next generation. Plaintiffs say that the central and constitutionally mandated purpose of marriage is simply to provide formal government recognition to loving, committed relationships.”