New York Times journalist Jo Becker’s new book, Forcing the Spring, to be published at the end of the month, and excerpted in The New York Times magazine this coming weekend, is engineered from the ground up to be the first definitive narrative of the contemporary gay-rights movement. As the epigraph from Anthony Kennedy shows, it is also meant to be a deployable weapon for that movement. What the book turned out to be instead is the story of a relatively unimportant but socially prominent Hollywood gay-rights nonprofit called American Foundation for Equal Rights (AFER), which did the fundraising and media work surrounding a single failed lawsuit—Hollingsworth v. Perry—and an astonishingly well-sourced tick-tock of the botched rollout of President Obama’s “evolution” on gay marriage. It is an upstairs/up-more-stairs drama set in familiar D.C. confines: conference rooms and private booths in the Jefferson, the Monocle, the Palomar, the West Wing. It is also a diligently reported account of the lawsuit, and a portrait of Chad Griffin, founder of AFER and now the head of the nation’s largest gay-rights group, the Human Rights Campaign.
If that’s all Forcing the Spring laid claim to, it would be unobjectionable, though still fawning. The problem is, it largely misses (and, more dangerously, disparages) what any moderately informed homosexual other than its own protagonists would identify as the real story: the long, hard work of countless activists who have for years been laying the cultural and legal foundation for the metaphorical “spring” of Becker’s title. It is the same foundation on which the progress of the coming years will be built as well.
Perhaps I overstate the danger: If the lawsuit at Forcing the Spring’s center had been successful in finally achieving nationwide marriage equality, there would be more of a risk that Becker’s narrative would congeal into something that could block out the story of the activists and lawyers who got us to where we are today. As things stand, the book comes across mainly like a brilliant false start, the hard work of someone embedded, perhaps too deeply, among people she thought would turn out to be victorious officers of the decisive battle—like the new Mitt Romney doc reedited by Leni Riefenstahl. Andrew Sullivan has already quoted them, but it is impossible not to reprint the opening lines of this book: “[A] revolution begins . . . when a black seamstress named Rosa Parks refuses to give up her seat on a bus to a white man in the segregated South. And in [the struggle for marriage equality], it begins with a handsome, bespectacled thirty-five-year-old political consultant named Chad Griffin.”
Sullivan’s outrage over these lines comes primarily from the “jaw-dropping” comparison, and drop jaws should. Scholarship and history have revealed Rosa Parks as a sophisticated activist with no interest in the simplistic hagiography that accreted around her. Her defining act of resistance was no less brave for having been part of a carefully engineered strategy for social change. Rosa Parks comparisons—as essayist Sarah Vowell has pointed out—are the stock-in-trade of aggrandizers of all stripes, second only to Holocaust comparisons as journalistic red zones. And indeed, a few pages later, Becker introduces AFER’s co-bankroller, Rob Reiner’s wife, Michele: “the number the Nazis had tattooed on [her mother’s] arm” served for her as a reminder of what can happen “when a group of people is singled out for persecution.” And off we go.
The book gets one thing right. The Perry proceedings at the heart of this book were the big Kahuna of gay-rights lawsuits, the case that could have won—or lost—it all. It was a challenge to Proposition 8, the successful California ballot initiative defining marriage as between a man and a woman in the California state constitution. The lawsuit could have been framed in such a way that “only” California was at stake. Instead, from the very beginning, Ted Olson and David Boies, the superstar lawyers recruited by Chad Griffin and financed by donations to Griffin’s AFER, made a federal Equal Protection Clause argument, trying to force the federal courts to decide once and for all whether marriage equality was in the United States Constitution.
Alongside Griffin at the heart of the book is Ted Olson, the GOP super-lawyer who argued Bush v. Gore for the victor. Becker’s description of Olson is no less heroic than that of Griffin. In the first chapter, we learn of his courage in the face of conservative opprobrium: “to [Olson], it was an axiom that good lawyers didn’t take on only popular cases. And if his reading of the law led him in a different direction than most of his conservative peers, he had never given much of a damn what others might think.” Where shall social conservatives go? What shall they do?
Of course, this approach was controversial. The board meetings of gay-rights organizations became shouting matches; friendships were lost. Movement lawyers had worked out a strategy that would first attack the Defense of Marriage Act (DOMA) on Equal Protections grounds, and then they’d bring a 50-state marriage case when they had a favorable Supreme Court decision on DOMA and more states in which marriage had been legalized. “Forcing the spring,” in Becker’s framing, is the decision by Griffin and the Perry lawyers not to wait for that strategy. In fact, as Becker notes, Olson wanted to try to get the case raised directly to the Supreme Court in 2009, when same-sex marriage existed in only five states and only 40 percent of Americans supported it. Despite the reassuring idea held by many of the faithful that “these guys know what they’re doing, so they must know something we don’t,” there was no esoteric knowledge. Everyone was just reading the tea-leaves on Justice Kennedy as always—and maybe (improbably) on Roberts and Alito. AFER’s lawyers claimed it was a slam-dunk: “I don’t know whether it’s going to be 6-3 [or] 7-2,” Boies told reporters before oral arguments.
In the end, the Court was, as movement gay-rights lawyers predicted, unwilling to recognize a federal constitutional right to same-sex marriage. The justices avoided, however, holding that it was not in the Constitution, too, by ruling on narrow procedural grounds (with the effect that Proposition 8 remained struck down but no other state’s laws were affected). So, AFER swung for the fences, could have ended up losing the inning, and instead just gave up a pop fly. (All for $6.4 million.) No biggie. If you want the dishy, legally complex, and politically compelling play-by-play, Forcing the Spring has it laid out clearly—every procedural turn and witness (remember David Blankenhorn? George Rekers?).
The problem is that Becker’s lack of previous immersion in the gay-rights movement left her overly reliant on the people on which the book is based (one gets the impression her reportorial instincts returned when she was in the more familiar confines of the White House). Her lack of previous exposure to the records and reputations of gay activists and organizers can be seen most clearly in her complete credulity in one incident early in the book, where AFER spokesman Dustin Lance Black lectures an audience of movement veterans at a philanthropic conference: “There is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism.” To Becker—who unquestioningly quotes AFER Advisory Board member Cleve Jones—these are the undifferentiated masses of “Gay, Inc., … a generation of leaders unwilling to rock the boat for fear of losing corporate donors, and willing to settle for just a fraction of equality.” As for Evan Wolfson, the founder of Freedom to Marry (FTM), the organization that has had the most success on the ground politically in recent years, Becker doesn’t even bother to attribute: Wolfson walks on stage “berat[ing]” Black, “explaining as though to a willful but ignorant child his ongoing, twenty-five-year plan to build support for marriage equality nationwide.”
There is a simple explanation, according to Becker, for the old man’s bitterness. In a tour de force of armchair psychoanalysis, Becker explains that there was, “both [Griffin and Black] felt, a generation gap.” Becker continues in her own voice: “Younger activists like Chad and Black had grown up in a relatively safer world, where gays and lesbians were not forced to congregate in bars with no windows for fear of being raided and attacked, where courts did not routinely strip custody from gay parents in divorce proceedings, and where they saw themselves reflected positively in television shows like Will & Grace. It was easier for them to envision success now.” Aha.
As Barbara Ehrenreich points out, and the facts of Perry illustrate, “envisioning success” doesn’t actually bring success. And never mind that, visions or none, Freedom to Marry went four-for-four in the states in 2012 and always publicly supported the Perry case. Forcing the Spring’s narration takes its leave of Wolfson in full parody mode: the grumpy, superannuated activist is “grumbling” and “seething” listening to Black’s excoriations on gradualism. Becker even dismisses super-sophisticated philanthropist Tim Gill after he “denounces” Black on the conference stage. Gill is just another old, rich “funder of gay rights causes” presumably responsible for the “failed … strategy of the past decade.” Gill pioneered the tactic of data-driven precision strikes against weak politicians who voted for anti-gay legislation and, through that, is in no small part responsible for shifting the tide in those state legislatures that once delivered all those failures. Only the oldsters who aligned with AFER are spared the sharp glare.
It will be tempting for those on the outside to dismiss Sullivan’s critique (and those, to come, of the slighted activists who will surely line up to take potshots) as the infighting and backbiting of sore losers. They are not. I have no skin in the fight between factions; to the extent I have personal connections, they are on both sides. I know Evan and others at Freedom to Marry, and Ken Mehlman, whom Becker features prominently, is a friend. I believe that marriage would not have come to New York State in 2011 if it weren’t for Melhman’s savvy, and obstinacy. But there is simply no plausible case to be made that he, Griffin, Black, Olson, and Boies—as hardworking and smart as they are—are the protagonists of the gay-rights revolution.
It was, no doubt, a huge deal when Olson came over and publicly endorsed marriage equality. Griffin is a sophisticated thinker about publicity and media—qualities well suited to the head of HRC. And longtime activists don’t deny that the Perry case made nationwide marriage equality more imaginable, encouraging bolder legislative initiatives and the raft of new cases currently in the state and federal courts. In fact, Wolfson himself, in the midst of the civil war over strategy, wrote that the path forward was not to second-guess Perry, but to work on the ground to make a marriage victory in the courts more likely.
But without a doubt, a few of those cases would have been brought anyway, and next year, one of them will reach the Supreme Court—possibly argued by Boies and Olson, who have tried, with varying degrees of success, to wrest various cases away from the lawyers arguing them around the country.
In the decision that decides the fate of countless same-sex couples across the country, the Supreme Court will cite not Perry—whose only holding touches an obscure question of standing law—but Windsor v. United States. That’s the case that successfully felled DOMA on Equal Protection grounds, as part of the old strategy, followed by those staid East Coast activists and lawyers.
Adam Teicholz is a legal analyst and former U.S. Appeals Court clerk.