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Published: January 20, 2010

Read and Weep

The Gay Answer to Election Losses

The following excerpts are from “A Risky Proposal,” an article that appeared in the New Yorker dated January 18.

The case that became Perry v. Schwarzenegger would probably never have materialized had it not been for a young political strategist in Hollywood named Chad Griffin. On Election Night in November, 2008, Griffin was watching the returns at a San Francisco hotel with Gavin Newsom, the city’s mayor, who, in a short-lived experiment in 2004, had presided over same-sex marriages at City Hall; Newsom’s wife, Jennifer; Bruce Cohen, a filmmaker who produced Milk and American Beauty and is a high-profile gay activist in Hollywood; and Kristina Schake, Griffin’s business partner and best friend. Like many gay Democrats that night, Griffin was exultant about Barack Obama winning the Presidency but despondent that Proposition 8 had passed. Griffin recalls “going into a forty-eight-hour spiral of depression. All I could think about was the message this sent to the kid I used to be, growing up in Arkansas.”

But Griffin is not a guy who stays depressed—or at least merely depressed—for long. A week after the election, he was having lunch at the Polo Lounge, in the Beverly Hills Hotel, with Schake, discussing strategy with the actor and director Rob Reiner, for whom Griffin had formerly run a foundation, and Reiner’s wife, Michele. This was no idle exercise: Griffin had played a big role in the “No on 8” campaign, enlisting donations and support from prominent Californians, including the actor Brad Pitt, the real-estate heir and film producer Steve Bing, and the supermarket mogul Ron Burkle, who hosted a fund-raiser at his Los Angeles mansion. Griffin has orchestrated successful statewide ballot initiatives promoting clean energy and early-childhood education, and his clients include Maria Shriver, the First Lady of California. Still, nobody at the Polo Lounge lunch had alighted on what seemed like a winning plan until an acquaintance of Michele Reiner’s, Kate Moulene, stopped by the table, and heard what they were talking about. Later, Moulene told the Reiners that they should get in touch with her former brother-in-law, Ted Olson. You’d be surprised, Moulene told them—he’s with you on this….


Perry v. Schwarzenegger is not the only federal lawsuit for gay marriage. Another one, Gill v. Office of Personnel Management, is thought by some scholars to stand a better chance of success, though it has been overshadowed by Olson and Boies’s effort. Gill was filed last March, by a public-interest law firm, Gay & Lesbian Advocates & Defenders (GLAD), in Boston. One of the GLAD lawyers on the case is Mary Bonauto—the attorney who successfully argued the case that legalized same-sex marriage in Massachusetts. (That case is heralded by many gay activists but is seen by others as a cautionary tale: the ruling, announced in the run-up to the 2004 Presidential election, served as a rallying cry for evangelical voters, and may have helped Bush win a second term.) Gill is not the damn-the-torpedoes case that Perry is. It challenges a section of the Defense Against Marriage Act which prevents same-sex couples from receiving the many benefits accorded to married couples at the federal level—from joint tax filing to health insurance for federal employees’ families—even though in the state of Massachusetts those couples are lawfully married. Gill insists not on the constitutionality of same-sex marriage but on the unconstitutionality of denying federal benefits to a class of citizens whose marriages are recognized by the state.

As seemingly modest as the Gill case is, it could help create a favorable climate for more ambitious challenges, including the Perry case. Thomas Keck, a political-science professor at Syracuse University who is an expert on the Supreme Court, told me, “I don’t think any of us can predict how it’s all going to turn out. But Gill is a very well-designed case, a well-targeted challenge that has a good chance of winning, and that broader challenges could be built on. If it wins, in a practical sense we would have federally recognized same-sex marriage. At that point, it would be much harder to defend the federal government’s refusal to recognize same-sex marriage in other parts of the country.” Gill could also go to the Supreme Court, and if it makes it there first, and succeeds, it could help Olson and Boies….

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