YOUNG LAWYERS. The mood in San Francisco was euphoric in early. Behind the Scenes with. Working on the Same-Sex Marriage Cases.

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1 Behind the Scenes with YOUNG LAWYERS Working on the Same-Sex Marriage Cases Erik Cummins The mood in San Francisco was euphoric in early 2004 when then-mayor Gavin Newsom decreed that same-sex couples could enjoy the same rights as other Californians and get licenses to marry. For several days after that historic announcement, which closely coincided with Valentine s Day, hundreds of happy and excited couples lined up at City Hall to get the state s official imprimatur on their relationships. Within moments of that news, a newly minted lawyer at Perkins Coie, Sarah Piepmeier, called her partner, and they rushed down to City Hall to get their own marriage license. Until the California Supreme Court stopped the marriages in mid-march and invalidated them in August 2004, Piepmeier and her partner were among more than four thousand couples that tied the knot and briefly enjoyed the privilege of marriage. Since then, the city s euphoria has transformed into a long, sometimes frustrating slog for same-sex couples. It has also resulted in several lawsuits and thousands of hours of legal work for dozens of lawyers like Piepmeier, who is now at Gibson, Dunn & Crutcher and was a member of a large team that worked on both the In re Marriage Cases that temporarily stopped the ban on same-sex marriages and Perry v. Schwarzenegger. Perry, which sought to overturn Proposition 8 or the California Marriage Protection Act, is currently on appeal before the Ninth Circuit U.S. Court of Appeals, following U.S. District Court Judge Vaughn Walker s ruling that Proposition 8 violated the due process and equal protection clauses of the U.S. Constitution. Oral arguments may start as soon as September. Sarah Piepmeier Opponents of Proposition 8, which passed in November 2008 and ended a brief window of legal marriages for same-sex couples in California, have built broad coalitions of attorneys, both senior and junior, at several 16 SPRING SUMMER

2 large law firms and the San Francisco city attorney s office, as well as nonprofit, advocacy groups like the American Civil Liberties Union (ACLU), National Center for Lesbian Rights (NCLR), and Lambda Legal. Three years into the fight, those groups are once again gearing up for another round of hearings before the California Supreme Court and Ninth Circuit. For Piepmeier and many lawyers on those teams, the legal battles over same-sex marriage have become the unforgettable highlights of their young careers, both personally and professionally. Those battles came to a head last summer in Judge Walker s courtroom, where some of the country s top legal minds gathered to argue the twelveday trial in Perry. Here I am at the counsel table in the Proposition 8 case and I m helping Ted Olson, Piepmeier said, referring to the lead trial partner on the Gibson Dunn team. It was so meaningful to me and I got flashes of that during the trial. Afterwards, it hit me and I stayed home for a couple of days to process it all, and realized how grateful and lucky I was to be a part of it. For Piepmeier and her colleagues at Gibson Dunn, the work to overturn Proposition 8 began in earnest the day after it passed on November 4, There, litigation partners Frederick Brown and Ethan Dettmer sent an urgent to all the attorneys in the San Francisco office. The encouraged those interested in brainstorming ways Gibson Dunn could assist the effort to topple the proposition to gather in the firm s San Francisco conference room. That room was soon filled to standingroom-only capacity, and several attorneys from other offices also joined in the conversation by phone. Ultimately, four partners and five associates were chosen to work on the effort, including Piepmeier and Enrique Monagas in San Francisco. In addition to Perry, Piepmeier worked on the amicus briefs in Strauss v. Horton, which argued that Proposition 8 was an invalid revision to the California Constitution and not an amendment, and the In re Marriage Cases. Much like Gibson Dunn s involvement in Perry, a large group of attorneys at Munger, Tolles & Olson committed hundreds of hours to the Strauss case. They worked alongside the American Civil Liberties Union, Lambda Legal, and the National Center for Lesbian Rights. Michelle Friedland was an associate at the time and worked on a Munger Tolles team that primarily included three associates and three partners. A half-dozen other lawyers at the firm worked on the case, as well. At times, the main group was working almost exclusively on its briefs to the California Supreme Court. Similarly, in Perry, the firm represented more than forty organizations in their amicus briefs to the trial and appellate courts. One of those organizations was the Bay Area Lawyers for Individual Freedom (BALIF), which had been represented by Munger Tolles as an amicus in In re Marriage Cases as well. Friedland had worked with the National Center for Lesbian Rights and Lambda Legal on an earlier case involving taxation of domestic partners. When Heller Ehrman, which had worked with those organizations in In re Marriage Cases and on what became the Strauss matter, collapsed, lawyers at the National Center for Lesbian Rights and Lambda Legal reconnected with Friedland and Munger Tolles stepped in. Throughout the effort, the associates were deeply in- Michelle Friedland

3 Litigation associate Mark Conrad was also part of the Munger Tolles pro bono team in Strauss and later in Perry. It was challenging and exciting to be a part of a case that was in the news every day and affecting the lives of people I knew and so many Californians, he said. Plus, there were questions of law that were novel and undefined. All members of the Munger team participated in our strategy sessions with some of the leading civil rights lawyers in the country, like Shannon Minter at the NCLR and Mark Rosenbaum at the ACLU. As a relatively junior member of the team, it was really exciting to be involved on those calls. Mark Conrad volved at every level, including helping to research and draft the briefs. It was a less hierarchical structure than at some firms, Friedland said. Everyone would exchange drafts with each other and there was not that much distinction between what the partners and the associates were doing. Although she was very disappointed that the team lost in Strauss, it was a fabulous case to work on, Friedland said. It was very important for me to work on a case that I care about. At the same time, members of the team both at Munger Tolles and cocounsel at the participating organizations grew very close. We got to be friends and we were on the phone at all hours, Friedland recalled. In recognition of that work in Strauss, the ACLU of Southern California awarded the Munger Tolles team with its LGBT Award. Friedland has since become a partner, and now serves as cochair of The Bar Association of San Francisco s amicus committee, which filed amicus briefs in district court and the Ninth Circuit in the Perry case. Friedland hopes to be involved, too, if the U.S. Supreme Court should take up appeals on the upcoming Ninth Circuit decision in Perry. Conrad served as a liaison to various groups that supported the amicus briefs in Perry. For an associate, he added, it was an extraordinary opportunity to get to reach out directly to so many clients and really help manage the relationships we had with them. And it was rewarding to work so closely with so many leaders in the community here in San Francisco, and also with the extraordinary collection of local and even national organizations that came together for the amicus effort. Christopher Dusseault, the copartner in charge of the Los Angeles office of Gibson Dunn who served as field marshal for the dozens of lawyers on the team in Perry, said these kinds of opportunities are terrific for young attorneys and each had a hand in research, discovery, depositions, witness preparation, and drafting. Ten first- and second-year associates also stepped in at the last minute during trial, when numerous documents from Proposition 8 proponents became available. It was important for the associates because they have tremendous pride, and because it was a really interesting case with really interesting legal issues, Dusseault said. It was obviously very high profile and people got some great experiences. The firm had found a client in the case when Chad Griffin at the American Foundation for Equal Rights and actor Rob Reiner approached Theodore Olson, one of the country s preeminent trial attorneys. Olson took the request to fellow partner Theodore Boutrous, Jr., and the firm agreed to bring a federal challenge. David Boies and his firm Boies Schiller & Flexner joined the effort, along with the San Francisco city attorney s office. 18 SUMMER 2011

4 We believe it is one of the most important civil rights issues of the day, Dusseault explained. Everyone recognized the opportunity for our firm to make a change. What they didn t know was that Judge Walker would ask for a full trial on the merits, Dusseault said. Preparation for the trial was particularly challenging because Judge Walker expedited the case, leaving only weeks for the parties to prepare. As a result, the firm s associates got to dive headfirst into the case. They got an opportunity to do a lot of things because this was an expedited case, Dusseault said. It was an absolutely life-changing experience for all of us. to do a lot of work and not get a lot of sleep, she said. Then you have moments where you think, This isn t like any other case. On a deeper level, it was difficult for Piepmeier to separate the case from a professional and a personal level. This is an issue I ve cared about deeply for years, she said. If I look back on my career thirty years from now, I m sure this case will be the highlight. During the trial, she often slept on the floor of her office and kept her clothing in various closets throughout the building. I didn t want to miss any moment of this, she said. We believe it is one of the most important civil rights issues of the day. Everyone recognized the opportunity for our firm to make a change. Christopher Dusseault Copartner in Charge, Gibson Dunn Piepmeier, who helped prepare two of the firm s nine experts, said she has worked on patent infringement cases that have taken two years to prepare. Here we did that in six weeks, she said. Piepmeier worked on issues involving sexual orientation stigma and whether or not the proponents of Proposition 8 were driven by any particular animus toward the gay community. While the team fought discovery battles over internal communications for those messages, she said, they ultimately found them in the campaign advertisements for the initiative. At times, the case was all consuming. When you are a trial lawyer you get into this mindset that you are going Although the California Supreme Court invalidated Piepmeier s first marriage on August 12, 2004, she tried again in 2008 in the months preceding Proposition 8. That marriage stands as a result of Strauss, in which the same court ruled that Proposition 8 is valid, but that any marriages conducted prior to November 4 would stand. Piepmeier s San Francisco Gibson Dunn colleague Monagas was involved at every level of the case, Dusseault said. And, in a well-recounted moment, Monagas personally took the case to court to file it. As a law student at the University of California at Berkeley School of Law, Monagas had written about similar issues in the California Domestic Partner Registry. THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 19

5 In preparation for Perry, he met two of the plaintiffs in Berkeley and they went through the motions to apply for a marriage license in Alameda County, knowing that they would be denied. The clerk gave us a puzzled look and said that Prop 8 had passed, he said. But she went to get her supervisor to say no, as we deserved at least that. He was very apologetic. Ilona Turner Christine Van Aken Monagas went to the trial in Judge Walker s courtroom every day and was tapped by the firm to marshal the evidence. It meant so much to me and my family and our plaintiffs, Monagas said. It was one of those rare instances where your personal life and professional life come together. The media circus surrounding the trial was also illuminating, he said. I would go to file something on the ECF [Electronic Court Filing System] and an hour later I m reading about it in the New York Times, said Monagas, who married legally during the window in October There were so many people looking to us to right a wrong. 20 SUMMER 2011 Ilona Turner earned her law degree in 2006 and joined NCLR in March 2008 after working for a New York labor firm. Within a few weeks, the California Supreme Court issued its ruling In re Marriage Cases, which held that marriage was a fundamental right and that banning marriage was unconstitutional under state law. Then came Strauss, which was filed the day after Proposition 8 passed. These were really important, monumental, groundbreaking questions, said Turner, who was on the team with the ACLU, Munger Tolles, and Lambda Legal. M ollie Lee Strauss was really an incredible learning experience, said Turner, who helped write the briefs, organize dozens of supporting briefs, and prepare for oral arguments. It was all about high pressure, short deadlines, and high profile litigation. Turner particularly enjoyed working with icons in her field and has since gotten involved with the LGBT Subcommittee at The Bar Association of San Francisco. To me it was in some sense a relief to be able to throw myself into [Strauss] after being devastated that Prop 8 passed, Turner said. We were up all night preparing papers to file in the morning.

6 Since Mayor Newsom s original decision in 2004, the team of city attorneys working on same-sex marriage cases has changed over the years. But most who did volunteered to do so, said Chief Deputy City Attorney Therese Stewart, a former BASF president. Almost nobody didn t want to do it, she said. During the Perry trial, she asked veteran trial lawyer Ronald Flynn to lead the team. Everybody [on the team] got a piece during the trial, Stewart said, proudly. We put on five witnesses and we had five people do it. It was better for the case. Christine Van Aken, who clerked for U.S. Supreme Court Justice David Souter in , and has been a deputy San Francisco city attorney in practice for five years, was very pregnant with her second child during the Perry trial. Yet, she worked with the city s chief economist Ted Egan. He explored the economic impacts on the city should same-sex marriages remain banned. He was actually able to cost that out, Aken said. Weddings generate a lot of economic activity in San Francisco. There are also tax consequences for same-sex couples and you can t get survivor s benefits. The city provides a lot of public health services. Think about that, in terms of mental health problems like suicide and depression. The city won t contract with companies that don t offer equal benefits, so it limits our bidding pool and raises our contracting costs. There s also school absenteeism as a result of bullying. Mollie Lee joined the San Francisco city attorney s office in 2008 as an elections lawyer and started work almost immediately on the marriage cases, first with Strauss and then with Perry. Therese Stewart approached Lee to work on the elections angle. She continued as they prepared Perry for trial, alongside Gibson Dunn and Boies Schiller. These were the kinds of cases we went to law school hoping to do cutting-edge civil rights work, said Lee, who earned her law degree at Yale in It was also my first real trial, so I learned a little bit of everything. I also enjoyed working with the experts. At the same time, Lee got a better understanding of how meaningful marriage is. She was also touched by her work with Ryan Kendall, a twenty-six-year-old from Colorado who described his own jarring experiences of discrimination during the trial. He was giving a voice to his experiences, and these poor kids who were shunned by society and by their families, Lee said. That was very meaningful to him and the attorneys working with him. On a more personal level, the cases were particularly important because she lost two uncles to AIDS in the 1980s. If gay relationships were more valued, maybe they d still be around, she said. For me, these cases were a tribute to them. Erik Cummins is a San Francisco freelance writer and longtime legal affairs journalist. He is also a frequent contributor to the blog As the trial approached, Gibson Dunn offered office space to Boies Schiller and the city attorney s office. Although there were differing legal theories, the team functioned like one firm, Van Aken recalled. THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 21