by Chris Geidner)
WASHINGTON — A 434-page book about a lawsuit that promised to bring marriage equality to all Americans, but only resulted in restoring marriage equality in California, is a tough sell. Unless the book can claim that the effort was the start of a revolution — and that the man who conceived of that effort is the gay rights movement’s Rosa Parks.
That is what Jo Becker, a reporter for the New York Times and Pulitzer Prize winner, attempts to do in Forcing the Spring, due out Tuesday.
Her book is missing the nuance or questioning eye that the story of marriage equality demands. The breakneck pace of the marriage equality movement in recent years has made it difficult for anyone to keep up with all that is happening on a day-to-day basis. Many moving pieces, from lawsuits to policy changes to campaigns, combined to turn a once unthinkable idea into an inevitability.
Becker fails to provide guidance to those seeking to actually understand the developments. She instead focuses intently on the case brought by the American Foundation for Equal Rights (AFER) against California’s Proposition 8 — and the men behind the suit, Chad Griffin and Ted Olson, losing all perspective as to anything that happened besides that case.
Becker claimed after criticism started building against the book that it “was not meant to be a beginning-to-end-history of the movement,” but she covers much more than the case against Prop 8 — including the larger marriage equality battle and LGBT rights movement. When she does so, the solid island that is her Prop 8 case reporting becomes quicksand.
Having covered each of the cases discussed — or ignored — in Forcing the Spring since the day they were filed or otherwise made public, I have a long history with the people and issues involved, having first met many of the figures in the LGBT movement when an undergraduate student and intern in D.C. in the mid-1990s. I have been writing about these issues since a law student when the Supreme Court struck down sodomy laws in 2003. I have attended, watched, or listened to every federal appeals court argument held on same-sex couples’ relationship recognition since 2009; I attended the oral arguments at the Supreme Court in both the Prop 8 case and the challenge brought to the Defense of Marriage Act.
Forcing the Spring just doesn’t get it right.
Emblematic of the problems that plague the book is Becker’s treatment of the speech that screenwriter, and eventual AFER board member, Dustin Lance Black gave at the OutGiving conference for LGBT donors held by Tim Gill’s Gill Foundation in March 2009.
“If there was applause, Black didn’t remember any,” Becker writes. “Instead, he recalled an ocean of pursed lips and crossed arms, and that he was literally trembling as he walked off stage. … Tim Gill … denounced Black outright, telling the crowd he was naive and misguided.”
Video from the event provided to BuzzFeed, though, shows that the speech was interrupted with applause five times. At the end, at least some members of the audience gave Black a standing ovation, the video shows. Though he does look nervous, far from trembling, he waves out to the audience with a smile on his face before leaving the stage. Gill did critique Black’s speech the next day, but it was, as the video shows, more of a nuanced defense of “gradualism” than any sort of attack on Black — let alone an “outright” denunciation.
The small universe of people who constitute Becker’s sourcing for the book — and her apparent unwillingness to explore alternative reasons for or views of the developments those sources discuss — make the book a dangerous draft of history.
Becker’s book, as flawed as it is in parts, is not some standalone work. She was given unfettered access to the team behind the case, as were Ben Cotner and Ryan White, the directors of the forthcoming HBO documentary The Case Against 8. Before the case was even done, Black wrote and the AFER team produced 8, a play about the trial, on Broadway and in Los Angeles. Olson and his co-counsel in the case, David Boies, will release their own book, Redeeming the Dream: The Case for Marriage Equality, this summer.
Indeed, Becker’s book is a piece in this public relations campaign, orchestrated by Griffin, who is now the head of the Human Rights Campaign, the nation’s largest LGBT rights group. HRC has hired the leading Democratic political consulting firm SKDKnickerbocker to help run its “National Marriage War Room” — the same firm whose managing director, Hilary Rosen, has played a key role in HRC’s history and, per Becker’s account, first asked if Griffin would be interested in leaving AFER to run HRC. The carefully coordinated campaign aims to paint the Prop 8 case — despite its eventual outcome — as the key moment in “the fight for marriage equality.”
From the start, the book misses the forest in service of its sources. In one particularly bizarre error of omission, it fails to even note the nationwide protests over the passage of Proposition 8 that preceded the formation of AFER and helped provide Griffin with an army of young people who supported his cause.
Becker instead crafts the sort of simple campaign narrative familiar from a hundred heroic presidential campaign books. She describes Griffin’s 2008 post-election meeting with Rob and Michele Reiner at the Beverly Hills Hotel’s Polo Lounge — and nothing else. The New York Times itself covered “Join the Impact, a Web site built the morning of Friday, Nov. 7, [that] has rallied hundreds of thousands of people who are gathering this weekend in eight countries, 50 states and 300 cities.” The next day, another article from the New York Times reported of the protests, “In one of the nation’s largest displays of support for gay rights, tens of thousands of people in cities across the country turned out in support of same-sex marriage on Saturday.”
But, for Becker, the story is all about heroes: Griffin and the man he recruited to fight Prop 8, Olson. Unmentioned is the broader context, protests that were, by the account of Becker’s own paper, the inspiration for a new generation of LGBT activists who had grown up on the web and were now righteously angered that a place like California could have passed such an initiative.
The book appears to have been carefully, but narrowly, fact-checked. It excels in covering the actual case, however, whether it’s the 2010 trial in San Francisco, the four plaintiffs and their families, or any of the case-specific details. Becker fastidiously details every aspect of the preparation, trial, and appeals that the lawsuit took on its four-year path, providing information and insights never before published. She marshals the access she received from the Prop 8 case team and plaintiffs to provide a comprehensive and compelling narrative of an important piece of the marriage equality story in this country.
But Becker’s reliance on the AFER (and, later, HRC) team — primarily lawyers Olson and Boies, staffers Griffin and Adam Umhoefer, and consultants Rosen and Ken Mehlman — is ultimately the book’s downfall. Almost any contextualizing of the case is done by people with a vested and open interest in advancing the narrative that Griffin, with Olson’s help, rescued a cause that Becker claims “had largely languished in obscurity.”
For proof, one only need to look to the treatment of Mary Bonauto, one of the central figures of the marriage equality movement — and a woman who is first mentioned by name on page 280.
By the time the Prop 8 case was filed, Bonauto was neck-deep in a long-term effort with her colleagues at Gay & Lesbian Advocates & Defenders to bring marriage equality to all of New England by 2012. She almost succeeded — only missing by one state, Rhode Island, which passed marriage equality in May 2013. GLAD had been behind the lawsuits that led to civil unions in Vermont in 2000, marriage itself in Massachusetts in 2004, and marriage in Connecticut in 2008. The group had legislative paths for marriage equality set for Vermont, New Hampshire, and Maine in place as 2009 got under way — two of which were law by the end of the year, although Maine voters overturned the legislation in a referendum there (only to turn around and pass marriage equality in 2012).
Most importantly, though, Bonauto would file a challenge to the Defense of Marriage Act’s ban on federal recognition of same-sex couples’ marriage rights on March 3, 2009 — more than two months before the AFER suit would be filed. Yet, in Becker’s book, the lawsuit is all but forgotten — as is the successful and landmark ruling Bonauto got in the case from U.S. District Court Judge Joseph Tauro on July 10, 2010 — nearly a month before the trial court ruling in the Prop 8 case.
Also forgotten or dismissed in the book are those who fought for marriage equality in the decades before the Prop 8 lawsuit was filed. In two of the oddest treatments in the book, Becker displays outright animosity toward Evan Wolfson and appears to be ignorant of Andrew Sullivan’s role in the marriage equality movement altogether.
Wolfson was one of the first lawyers at a national LGBT legal organization to put time and energy behind advancing marriage rights for same-sex couples — eventually leaving his role at Lambda Legal to start and run Freedom to Marry, a role he continues to this day. Sullivan, back in 1989, wrote “Here Comes the Groom” for The New Republic, making the conservative case for marriage equality, and continued writing on the topic throughout the 25 years since. Though both have their flaws and, thus, critics, Becker nearly writes them out of the movement.
For Becker, Wolfson is merely a bully to Griffin and Black — confronting Black, per Becker, about the planned Prop 8 lawsuit prior to that speech he gave at OutGiving in the weeks after Bonauto’s DOMA lawsuit was filed.
Sullivan, somehow, merits barely a mention in Becker’s estimation. In writing about President Obama’s decision to endorse same-sex couples’ marriage rights, Becker mentions Sullivan’s response, calling him “a prominent gay blogger” — the sole reference to him in the book. But, so it goes with anyone who gets in the way of the book’s limited Griffin-centric narrative — even the Supreme Court or Olson himself.
Becker, at one juncture, details a dispute between Olson and the lawyer for San Francisco in the Prop 8 case, Terry Stewart, about the breadth of the case they would make to the 9th Circuit — whether the ruling would apply to all marriage bans or limited to California. Becker sums up Olson’s view as thus: “The entire point was to bring this case to the Supreme Court so that gays and lesbians nationwide could marry.”
Later in the book, she details that the Supreme Court ultimately held that they didn’t have authority to hear the case: “On a vote of 5-4, the Court cleared the way for same-sex marriages to resume in California, while leaving for another day the question of whether all fifty states must follow suit.” Five paragraphs later, after having detailed repeatedly that the aim of the lawsuit was a so-called “50-state solution,” Becker gives Olson the last word, “‘We won,’ he said.”
Meanwhile, the case that unquestionably succeeded was the case brought by Edie Windsor that ended DOMA’s discriminatory treatment of same-sex couples. Even here, though the case was covered in the book, Becker’s vantage point “through the eyes of Griffin and Olson” paints Windsor’s case and her lawyer, Roberta Kaplan, in a confounding way.
The DOMA case — not the Prop 8 case — is the one judges have cited over the past year when they have overturned state bans. But, in order for Becker to advance her narrative, she attempts an incredible acrobatic feat on page 418 of her book. Justice Anthony Kennedy, who wrote the Windsor opinion, “seemed to have grafted whole passages of the arguments that Olson had put forward in the Prop 8 case onto his opinion in the DOMA case,” Becker writes.
The weak support for this incredible statement — which ignores the text of Kaplan’s briefing and the words of the oral argument at the Supreme Court — is three selections by Becker comparing Olson’s language with Kennedy’s decision in the Windsor case. Not the same language, just similar language, in three places. Kennedy’s points — that DOMA created a “second-tier marriage,” instructed “all federal officials” that same-sex couples’ marriages are “less worthy,” and impeded “dignity” — were in no way unique to Olson’s arguments. Kaplan — not to mention all of the amicus curiae, or friends of the court, briefs in the DOMA case that were coordinated by Bonauto (another fact ignored by Becker) — often returned to these points, which were central in all of the DOMA cases.
There is no question that Olson and Boies are dedicated to the cause, or that the effort conceived by Griffin advanced public education, including the bipartisan tone that the marriage equality fight has taken on in recent years. Their case was the first federal case filed challenging a state marriage ban in the modern gay rights era, and it certainly made everyone — including the legal groups who had opposed the lawsuit’s filing — think more aggressively about ways of reaching the marriage equality finish line.
But the fact is that Griffin and Olson and Boies did not succeed in reaching their 50-state victory that was the “entire point” of the Prop 8 case. And, while the ruling was not the disaster that some of the LGBT legal groups had warned it might be, Becker shades over the ways in which that possible disaster — Prop 8 being upheld as constitutional — was avoided.
The standing dismissal that the court settled on might not have even happened were it not for the other advances that took place while the Prop 8 case was delayed by moves Olson opposed — including the trial itself and the detour to the California Supreme Court to respond to the 9th Circuit Court of Appeals’ standing question. From President Obama’s support of marriage equality to the additional states, and voters, that passed marriage equality into law, much changed while the Prop 8 case slowly — much slower than Griffin or Olson wanted — worked its way to the Supreme Court.
Of course, as Becker details, Griffin helped advance the efforts to bring Obama on board and to pass marriage equality in additional states, both at AFER and then at HRC. But, he and his organizations were part of multifaceted teams of legal and political and education groups, and of state and national groups, in addition to individuals across the country. The Becker narrative — call it Griffin argument if you want — allows for none of that nuance, though, and it allows for very little sharing of credit.
Everyone, though, is moving forward. Federal cases — like the Prop 8 case — have been filed in many of the 30 states with marriage bans on the books. A new lawsuit is expected to be announced in Georgia on Tuesday.
For their part, AFER and Olson and Boies have since joined another case, fighting for marriage equality in Virginia, and they will be arguing their case on May 13 at the 4th Circuit Court of Appeals. They fought to get ahead of a case brought by the ACLU and Lambda Legal by joining lawyers in an earlier filed lawsuit and fought, unsuccessfully, to keep them out of the appeal. After the appeals court, though, Olson and Boies hope to see their way — with new plaintiffs in a new state — back to the Supreme Court.
They’re not alone. The Utah and Oklahoma cases already heard by the 10th Circuit Court of Appeals could be resolved soon, meaning a losing party could seek review by the Supreme Court first — but expect Olson and Boies to find a way to give justices the option to take their case.
And expect Chad Griffin — and his war room at HRC — to tell us how his Prop 8 case made any ultimate marriage equality victory happen.