Author Of Controversial Book About Marriage Equality Remembers Pivotal Moments In Prop 8 Court Battle
Jo Becker’s new book, Forcing the Spring, tells the story of AFER’s role in overturning Prop 8. Like the subjects of the book, there’s been a lot of conversation and controversy about it since it came out; and if you want to explore that controversy, there is no shortage of conversation in which you can participate.
Queerty contributor and former AFER staffer Matt Baume asked Jo about her writing process. Like Becker, Matt is also writing a book about marriage equality.
Jo Becker’s research began with a single article for the New York Times, five years ago. It was a profile of Ted Olson, around the time that Olson and David Boies faced a crucial hearing in the case.
“It was, I thought, a really important moment in this fight,” Becker now recalls. “I wanted to know how that came about. … After doing the story I found I couldn’t let it go.”
At the time, the federal lawsuit was a surprising. In May, the same week that AFER announced its case, a coalition of leading LGBT organizations had put out a statement entitled “Why the ballot box and not the courts should be the next step on marriage in California.” Many other organizations had signed a statement called “Prepare to Prevail,” advocating a public education campaign instead of an immediate ballot measure. The game plan at that point was to spend a few more years conducting public outreach to create a climate in which the country — including the courts — would feel comfortable ruling in favor of equality.
“I’ve always been fascinated by the civil rights fight,” says Becker. “So I approached Ted Olson, who I knew from covering the [Bush v. Gore] recount, and I said I’d love to do a book about this case.”
But doing so would require more openness than lawyers generally tolerate. “I would need to be able to be in the room as strategy is plotted,” Becker told Olson. In retrospect, she later recalls, “honestly I thought they would say no.”
But they didn’t, and Becker joined the team as a quiet background observer. She had a rare opportunity to document a civil rights case as it happened, rather than piecing together oral histories after the fact, and Becker was able to note minute details.
For example, she noticed, the gay lawyers on the team brought a unique perspective. When the legal team was compiling a reel of evidence about the Prop 8 campaign, she recalled a disagreement about whether an a particular ad displayed animus.
“Think it can’t happen? It’s already happened,” a narrator warned, in reference to first graders attending a lesbian wedding.
“I don’t know about that one,” said one of the straight lawyers, pointing out that first graders don’t really learn about straight weddings, either. Becker recalls that all of the gay lawyers snapped to attention at that claim, and were quick to refute it: of course kids learn about straight weddings. In fairy tales, in play activities and from adults around them, the gay lawyers were acutely aware of heteronormativity instilled since childhood.
“If I hadn’t been there,” Becker says, “nobody would probably even remember, because there was so much going on every single day.”
There were other important moments. “I remember the agony that the plaintiffs went through while the Supreme Court was deciding whether to take their case,” she says. “Everybody would get together and refresh SCOTUSblog like crazy, and the court would do nothing. And everybody would just deflate and go home. … Kris [Perry] was just really tense. … They kept having to send out save-the-dates, because had the Supreme Court denied cert, they would have gotten married right away.”
Becker took a year off of work at the Times to write the book. When she started, “I didn’t know what the arc would be.” It was an unpredictable case, with frequent last-minute twists.
“I can remember getting word that Judge Walker was going to issue his opinion the following day at one o’clock,” she says. “I don’t think I got word about that until … 8 or 9 o’clock at night.” She raced around her home, packing and searching frantically for a flight. “I could not get on a flight that night, and had to take a flight out that morning, and just pray that it wasn’t delayed. … I got there in time, and was there as the plaintiffs were called in to talk to the lawyers.” She watched the attorneys deliver news of the win to the plaintiffs in a private conference room, with the rest of the AFER team outside pressing ears against the door.
Of course, that victory was followed by years of ongoing litigation. It wasn’t until 2013 that the Supreme Court would uphold AFER’s victory. And then a few days later, unexpectedly, the Ninth Circuit ruled that marriages could begin immediately.
“When everybody got word that weddings might resume at 3 p.m. … I had thought it was going to be kind of a down day, like nothing was going to happen that day. I was literally at a hair salon in West Hollywood getting my hair blown out when my phone buzzed.” Becker told her stylist, “if you can get my hair dried, great. If not I have to leave anyway.”
Looking back now, Becker says that AFER had a unique role in the ecosystem of people and organizations working towards the freedom to marry. Back in 2009, she remembers, “they were newcomers…and they were bucking the establishment at the time.” (But they were only bucking it by a few years; the established organizers like GLAD and Freedom to Marry had always planned on taking a case to the Supreme Court when the time was right.)
One of AFER’s big advantages was having Ted Olson on board. With him came lots of new Republican allies, including former Bush Campaign Manager Ken Mehlman.
According to Becker, Mehlman came out specifically to join AFER’s board because of Olson’s involvement. Later, he would be instrumental in helping to rounding up Republican votes for the repeal of Don’t Ask Don’t Tell. “He was also was someone who opened up a huge new spigot of Republican money that was quite instrumental in the passage of marriage equality in New York,” she says.
AFER also established “war rooms” to conduct outreach to the media. By the time the Prop 8 case reached the Supreme Court, that war room encompassed AFER and the Human Rights Campaign, and “had presidential-campaign-level operatives working in it,” Becker recalls.
That media focus had a significant impact, even on the Prop 8 proponents. In her book, Becker reveals that Prop 8 attorney Chuck Cooper learned his stepdaughter is gay while he was litigating the case. “He talked about how moving it was, listening to [AFER plaintiffs] Kris and Sandy testify. So much so that when they got married, he watched it all unfold on TV in shock … but he said he couldn’t help but rejoice in their happiness.”
“When you know someone and you hear their stories, just like Chuck Cooper, it sort of reframes it for you,” Becker says.
Now, with marriage won in seventeen states and public support steadily climbing, gay couples face a changed world. It’s one in which the fight for marriage equality is woven inextricably into our relationships.
After New York passed its marriage equality bill, Becker and her husband attended a wedding for a colleague at the New York Times. Among the passages read by the officiant: the text of the state’s newly inclusive marriage law.