You might predict that a debater at Milton and then Yale would turn up as a lawyer. Chris Dusseault claims an even tighter overlap between his love of music and singing at both those schools and his distinction as a litigator. “Reading your audience, understanding them, what they’re receiving and what they’re not, is much the same as looking a judge and jury in the eye. You come into the courtroom with one conception of how it should go—‘this is what I intended’—but is it working? You need to pay attention to what is resonating and what is not. Because at the end of the day, what matters is whether you reached your audience …”
Preparing for a career in law, Chris took civil rights courses in college, but his focus as a litigator over the years has largely been antitrust defense and a range of other business issues. “I’ve always been a trial person,” he says. One winter night in 2010, Chris was out at a movie with his wife when he picked up an email from a partner at Gibson, Dunn & Crutcher exploring Chris’s interest in working on a new case that the firm was taking on. “Sure,” Chris said without hesitating. Only later did he learn that the case in question would seek to stop Proposition 8, California’s ballot initiative that limited marriages to opposite-sex couples. Even at the starting point of what would be a four-year legal journey, Chris was “blown away by the potential impact of the case. I could see early on how right this was. It presented issues that the federal courts hadn’t yet reached, but it was 100 percent supported by the reasoning of existing civil-rights cases.”
The idea for the case that Gibson Dunn would undertake originated with California film director Rob Reiner and Chad Griffin, a former White House staffer who is now president of the Human Rights Campaign (HRC). The two were lamenting the ballot initiatives that were limiting marriages state by state, in the absence of a federal ruling on the right of gay men and women to marry. Proposition 8 was the opportunity at hand. On a tip, Chad tested Ted Olson of Gibson Dunn’s Washington, D.C., office about his interest in taking on a case against Proposition 8. Ted—a high-profile, conservative lawyer and Solicitor General in the George W. Bush administration—believed strongly in the right of gay men and women to marry, and he agreed to get involved. Further, he anticipated the impact of including counsel from “the other side of the ideological spectrum,” as Chris says. Ted recruited David Boies, who led the Justice Department’s case against Microsoft and defended Al Gore in the Bush v. Gore case before theSupreme Court that decided the American presidency in 2000. Olson’s and Boies’s firms worked as one on the marriage equality case, according to Chris, and they were joined by the city and county government of San Francisco.
Their complaint requesting an injunction against Proposition 8, filed with the Third District Court of Northern California, drew a response from Judge Vaughn Walker that shifted the character of the case. As Chris describes the judge’s thinking, “rather than simply reading briefs and granting or denying an injunction, he felt that this case involved many issues, at least 18 by his count, that needed to be raised and decided in the way that trial courts do things: through testimony, evidence and cross-examination.” Anticipating a potential Supreme Court role down the line with Proposition 8, Judge Walker wanted to build the trial, to build a record. Not only that; so as not to delay any further, he set an expedited timeline for hearing the case.
With a trial imminent, Chris’s expertise as a trial court specialist was especially relevant, and he took on “being the quarterback for putting this thing together.”
“We embraced the 18 points,” Chris says. “The question was, ‘How do we prove those points? How do you put together a case that does that?’”
In just 45 days, Chris and the team of lawyers identified and hired 10 experts and prepared their reports for the trial. Taking and defending the depositions of roughly 25 witnesses took another several months. Chris and the team assembled experts that included historians whose work focused on the history of marriage (Nancy Cott) and the particular discrimination that gays and lesbians have experienced in the United States (George Chauncey). A Stanford political scientist (Gary Segura) showed the disproportionate number of ballot initiatives directed at gays and lesbians. Psychologists testified on the effect of legal discrimination on the LGBT community, and the benefits of marriage, along with the lack of evidence that same-sex or opposite-sex parents have any unique effects on children. San Diego mayor Jerry Sanders (Republican) explained his decision to support homosexual marriage, because of his lesbian daughter. Helen Zia, Chinese-American journalist and lesbian, described the prejudice she had experienced; and San Francisco’s chief economist, Edmund Egan, projected the savings for the city if gays and lesbians were able to marry, especially a lower financial burden in mental health costs.
The legal team represented four individuals—two couples, who would need uncommon fortitude and perseverance. Among their challenges was the need to bare their personal lives not only before the court, but also before the nation. Chris is still close friends with all four plaintiffs in the case: Kris Perry and Sandy Stier of Berkeley, and Paul Katami and Jeff Zarrillo of Los Angeles. Neither couple could get a marriage license, because Proposition 8 had overturned the California Supreme Court’s decision that legalized same-sex marriage.
With the petitioners, experts and witnesses ready, the moment came to orchestrate the presentation of the evidence at trial. One of Chris’s roles was to map out which witnesses would speak to which issues, and in which order, to present the plaintiffs’ case most clearly and powerfully, as well as how to respond to the arguments presented by the proponents of Proposition 8. HBO’s documentary “The Case Against 8” shows Chris sharing with the plaintiffs the strategic decision to “put all four of you up front,” in recognition of the fact that the case was, at its essence, about people who just wanted the right to get married like everyone else.
“The public trial was so important,” Chris says. He remembers telling these two women and two men who had agreed to undertake what lay ahead, “You guys are the whole reason for the case. It’s that powerful and that personal. The experts will follow you.” Chris defended the depositions of Paul and Jeff, and another partner defended the depositions of Kris and Sandy.
“In a career that I’ve loved, and that has involved some amazing, high-profile, high-stakes issues, nothing can compare to preparing two men who love one another, and want to spend their life together, to be questioned about exactly that: Why do you love the person you love? Could you love someone else? Questions about how gay and straight people might differ in attitudes about promiscuity. How do you get someone ready to testify under oath about questions like these? They were so courageous.
“The proponents of Proposition 8,” Chris says, “focused on trying to poke holes in our folks’ testimony. We presented 13 witnesses.” The proponents of Proposition 8 presented just two. Their main witness was David Blankenhorn, whose task was to make the case for why a nondiscriminatory person would be against gay marriage. He had to argue why it was not discriminatory to have the institution of marriage be a heterosexual thing; to narrow the institution to exclude a single group; and justify this separate treatment of them. The Proposition’s proponents’ argument at trial for why limiting marriage to straight couples was not discriminatory centered on procreation, or more accurately, “accidental procreation.” “Essentially,” Chris says, “they pointed to the fact that a gay or lesbian couple couldn’t simply have a baby ‘by accident,’ as a heterosexual couple could, as justification to make marriage only for heterosexuals.” A second argument, Chris noted, was that children are best-off when raised by their biological mother and father. But there was no evidence to support that conclusion, Chris says, and all Proposition 8 did was ensure that the many gay and lesbian couples raising children in California would not have the benefit of being married.
On August 4, 2010, Judge Vaughn Walker found in favor of the plaintiffs. Proposition 8 “unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation,” he wrote. The proponents of Proposition 8 appealed to the U.S. Court of Appeals for the Ninth Circuit, and on February 7, 2012, the appeals court upheld the district court decision. Judge Stephen Reinhardt noted that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” The proponents of Proposition 8 appealed to the Supreme Court, and in December 2012 the Supreme Court granted review. On June 26, 2013 the Supreme Court found that the proponents of Proposition 8 did not have legal standing to appeal the district court’s decision, when California’s own officials refused to do so, and dismissed the appeal. The life-changing day that Kris, Sandy, Paul and Jeff had been waiting, hoping and working toward was June 28, 2013: The stay of effect on the district court’s decision was removed. Same-sex marriages occurred that afternoon. Having endured and persevered through the emotional roller coaster of various and protracted legal events from November 2008 through June 2013, Kris, Sandy, Paul and Jeff had earned access to an institution that many adults take for granted.
“Of course,” Chris says, “we had hoped the Supreme Court would decide the case on its merits and not on standing, but the fact that they recognized the constitutional right of gay men and women to marry only two years later was a great thing.” On June 26, 2015, the Supreme Court ruled that the right to marry is guaranteed to same-sex couples by the Fourteenth Amendment of the United States Constitution, and that state laws denying marriage equality violated Equal Protection. All states were required, at that point, to issue marriage licenses to same-sex couples.
Chris acknowledges that a love of and concern for justice and equality are in large measure what drew him to the law. Those passions were well suited to this case, he notes. “First I saw it as a legal issue. What I learned was how human and how personal it is. This case allowed me to use my training in the law, and in litigation, to help bring about change that improves life for thousands of Americans. And it simply makes this a better country.”
A wave of support for gay marriage is moving through the country as pundits try to analyze why. Chris thinks the reason is that “when you allow gay and lesbian couples that love one another to marry and function in society, nothing bad happens. It’s all good. The parade of horribles, the 30-second sound bites of imminent disasters, just don’t happen.”
“There’s lots of credit to pass around,” Chris says, “and we were a small part of a huge and widely effective effort. By bringing a federal lawsuit, we took an approach and a strategy at a time when it wasn’t popular. Many people didn’t think it was the right strategy at the right time. But we felt that our clients deserved their full constitutional rights now, and we worked hard to make sure they got them. I will always be proud of that.”
by Cathleen Everett
Same-Sex Marriage
The Legal Short Course
June 16, 2008: Same-sex marriage became legal in California. The Supreme Court of California ruled that barring same-sex couples from marriage violated the state’s constitution (In re: Marriage Cases).
November 4, 2008: California state referendum known as Proposition 8 passed, limiting marriage to opposite-sex couples.
November 5, 2008: Marriage licenses were not issued to same-sex couples in California.
August 4, 2010: United States District Court Chief Judge Vaughn Walker declared Proposition 8 a violation of the Due Process and Equal Protection clauses of the U.S. Constitution (Perry v. Schwarzenegger). It “unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”
February 7, 2012: The Ninth Circuit Court of Appeals upheld the district court ruling (Perry v. Brown). “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
December 7, 2012: The U.S. Supreme Court agreed to review the case (Hollingsworth v. Perry).
June 26, 2013: The Supreme Court ruled that the official sponsors of Proposition 8 did not have legal standing to appeal the district court decision. The judgment of the Ninth Circuit was vacated and the case was returned to that court with instructions to dismiss the Proposition 8 sponsors’ appeal.
June 28, 2013: A stay of effect was removed from the federal district court decision. Same-sex marriages were able to resume.
June 26, 2015: The Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process clause and the Equal Protection clause of the Fourteenth Amendment, United States Constitution. All states must issue marriage licenses to same-sex couples.