(theme music playing) HOLLAND: I'm Julia, bookseller at Politics and Prose.

We're live with Sasha Issenberg and Amy Walter discussing "The Engagement: America's Quarter-Century Struggle Over Same-Sex Marriage".

On June 26th, 2015 the US Supreme Court ruled that state bans on gay marriage were unconstitutional, making same-sex unions legal across the United States.

But the road to that momentous decision was much longer than many know.

In this definitive account, Sasha Issenberg vividly guides us through same-sex marriage's unexpected path from the unimaginable to the inevitable.

This richly detailed narrative follows the coast-to-coast conflict through courtrooms and war rooms, bedrooms and boardrooms to shed light on every aspect of a political and legal controversy that divided Americans like no other, following a cast of characters that includes those who sought their own right to wed, those who fought to protect the traditional definition of marriage and those who changed their mind about it.

And moderating this evening is Amy Walter, the national editor of "The Cook Political Report", where she provides a weekly analysis of the issues, trends and events that shape the, the political environment.

She is also the host of WNYC's "The Takeaway: Politics with Amy Walter", and a political analyst for the "PBS NewsHour".

On behalf of Politics and Prose, please join me in welcoming Sasha Issenberg and Amy Walter.

WALTER: Well, this is really an honor for me, um, Sasha to be hosting this, or to be moderating this.

Uh, it's Politics and Prose, of course, that is hosting this on the very first day of Gay Pride Month, so June 1st.

And, um, this is your official coming out of the book, correct?

ISSENBERG: It is, yes.

WALTER: Yes, so happy, Coming Out Day is in October, but this is a still, it's a momentous time for you to be doing this.

And as Julia pointed out in her opening, of course, you know, it was in late June when the Supreme Court decision came out on marriage so, um, it all feelS very... in Washington, it feels very serendipitous.

WALTER: Um, I just wanna start by, um, letting folks know, uh, I know Sasha personally.

I consider him a friend of mine.

I also consider him one of, really, the most insightful chroniclers of American politics, um, in the country.

Um, he is thoughtful, thorough.

He takes things that are incredibly complex and seemingly dense and unapproachable and makes them very approachable.

And I think, to me, this book, um, does, does all of those things while also telling some great stories.

It's a storytelling, um, adventure, Sasha, because it's one of these things, especially for folks in our generation who lived through every minute of this process to think, well what could I possibly learn about a book for something that I actually lived through?

This isn't, like, you writing about the 1930s or something like this.

So I wanna start with this, which, um, y-you put up on Twitter today a little thread about the book coming out today and, um, you said, "I, I had this idea for a book when I was interviewing pollsters for your book 'The Victory Lap'," which I also, by the way, highly recommend.

"Um, and they kept noting that they'd never seen opinions move as quickly on a single issue as it had on gay marriage, and no one could readily explain why."

Um, and Sasha, I do remember having a conversation with you probably around this time when you said, "I'm thinking about writing this book on gay marriage," but here we are now, it's 10 years later, 750 plus pages later, um, why did a book that you thought about writing in 2011 now take, take this much time?

Walk us sort of through that process and, and, and how, whether you were able to, to sort of, um, make these decisions or whether it was fate, and as the events were moving so quickly, that was making those decisions for you.

ISSENBERG: Yeah.

Thanks so much, Amy, and thanks to Politics and Prose, um, for having me back.

Um, it, so, you know, I, I had the idea in the summer of 2011 and, and, as you mention, I was, I was having these conversations with pollsters and at the same time, the New York, uh, uh, I remember the Saturday night when the New York state senate voted to, to pass the marriage equality act, and Andrew Cuomo signed it into law basically immediately.

And I had this moment where CNN cut to a crowd outside of Stonewall in, in Greenwich Village.

And it was, it was a fairly small crowd.

There was a couple dozen people milling about.

It was this desire to, to impose a, a sorta historical, put this in a historical art that was familiar to people, and I realized that, that I did not understand the historical arc of this marriage fight, and so, um, I had, that's when I had the idea and I, uh, it was only after, I remember the Monday morning after Biden went on "Meet the Press" and said that he, um, uh, supported, uh, the right for same-sex couples to marry... BIDEN: What this is all about is a simple proposition who do you love?

Who do you love and will you be loyal to the person you love?

ISSENBERG: Obviously that led to Obama announcing a change in his position two days later.

I went to my agent that morning and I said, "I think this is already moving more quickly, uh than, than, than I'd expected when I first had this idea.

We should jump on it."

Um, and so I started working in 2012, and then already by the end of that year the Supreme Court had, had, uh, announced that they would hear two separate marriage cases.

I did not expect in what I thought would be the two-and-a-half years I was working on this book that there would be a marriage case before the Supreme Court, let alone what ultimately became a national resolution of the marriage story.

And so, you know, one big part of the answer to your question is the news got out ahead of me and, you know, for, for a creative person, it is, it is humbling to think the US Supreme Court, um, works more quickly than I do but, um, it was the, you know, I, I think I three times had to re-draw my contract just to put a new, uh, deadline because, you know, we, there's a sort of shared goal in this process between me and, and my editors that we wanted this to be a complete and definitive account of this.

And, and once it became clear that there would be a sorta legal resolution to this, there was a goal of, of waiting until I could sort of account for that whole narrative, not just to the Supreme Court but whatever fallout or backlash followed it.

And I, and I thought there would be more of that, frankly.

But, um, and so, you know, the book took me ultimately, uh, uh, six years to report and research and write, and then, um, uh, a combination of some sort of adventures in the publishing industry.

It's quite hard to convince people to, to publish a 900 page book.

And it was quite hard to, to get some people to, to be interested in publishing a book that was sort of about politics or the news that was, didn't have Donald Trump at the center of it for a couple of years.

And then COVID delayed it.

This was supposed to come out last June for the same pride month reasons, um, a-and what would've been the fifth anniversary for Obergefell and then, um, the pandemic got in the way.

So, uh, about two thirds of the delay was, was that just that the scope of the book got bigger, um, and, uh, um, but then obviously some sort of circumstances outside of, of, of my control as well.

WALTER: Right.

So it's that rare occasion where you're actually watching history get made and you can kinda see where it's headed versus I'm gonna end this book in maybe five years from now.

20 years from now I'm gonna have to go back and write, you know... ISSENBERG: I mean, I actually had to worry that things were moving so quickly, um, that six months afterwards things would change and, you know, it wouldn't sort of render moot what I had written but something else would come along and superseded it or had a better sort of, captured the moment better.

And so it was, it wasn't just will this last five years?

It was, like, will this last five months after, you know, that, and, and what, and what, I mean, having lived through this and, and covered most of it in some.

WALTER: Yep.

ISSENBERG: Form, maybe you remember this, like, it was a real tug-of-war for years and it, it, you know, this was not, it was not until that moment in 2011 where I thought, okay, the trajectory of how this ends is clear.

I did not think that this, that we were four years from this being the law of the land.

But it was the first time that I saw that the trajectory would head in only one direction, and up until that point I think it was a real open question as to would this be the sort of, you know, if you define the goal as nationwide marriage equality, will this take generations?

Will this be something that, you know, there was a real fear after Massachusetts legalized marriage in 2004 that there could be a constitutional amendment in Massachusetts and this would be a short-lived experiment that existed only in one state for a few years.

Um, you know, maybe this is too grand an analogy, but, like, reconstruction, you know, like, you know, ended.

Um, uh, you know, and then the other question would be could we end up in a situation, which is what I sort of thought was m-most likely would be some version where we are sort of on the death penalty where we have a patchwork and, like, roughly half the states have the death penalty and roughly have the states don't have the death penalty and everyone, every couple of years, one state moves from one column to the other or slightly changes how they do it.

You know, and that was something that was the most divisive social cultural issue in the US for a few years in the 1990s, and now we barely talk about it as a live political issues and we're kind of fine with the idea that you could cross a state line and the laws change and um and so I think all those things seemed possible when I, you know, when I started this and, and um, I'm surprised that my book has a sort of the end that feels very settled.

WALTER: Right.

ISSENBERG: Yeah.

WALTER: Well, I wanna get to that too, but before we do I wanna start with where the book starts because, again, having to decide where to start this must've also been quite the journey.

And, you know, you could've started in a million different places.

You could've started in Vermont, you could've start with civil unions, you could've start, as you pointed out, with gay marriage in Massachusetts.

Instead you start and focus on somebody who, honestly, even if you'd been following this closely, you probably don't know a guy named Bill Woods who is this sort of gad-fly gay activist in Hawaii.

So talk about why you start with this sort of inauspicious character, um, to, to, to, to begin our story.

ISSENBERG: So there'd been a few lawsuits in the early 1970s, basically in the wake of Stonewall, where, um, uh, gay couples, individuals decided in this sort of boost of enthusiasm about pursuing gay rights in court, we're gonna sue to get married.

And, um, there were a handful of these cases in state and federal court.

None of them really went anywhere.

Uh, a few of these people had lawyers.

They said that there was a gay legal establishment.

They didn't support them.

Um, nobody had a real legal strategy.

And by 1975, all of these cases had, had died out.

And then, you know, starting for the next 15 years, the gay political and legal movement becomes far more serious far better resourced, and on one hand has the opportunity for incremental gains and sort of non-discrimination laws, people protection laws, um, and is dealing with AIDS.

And so nobody is going into court, um, demanding marriage rights for 15 years.

And there's a case in Hawaii, which has been written about.

Took a long time for people on the mainland to take stock of it, but, you know, it was pretty clear in the historical record that this, that the Hawaii Supreme Court rules in, in the spring of 1993, in favor of six plaintiffs, three couples who had sued for the right to marry.

Uh, it was the first time any court on earth had acknowledged that the fundamental right to marry could extend to same-sex couples.

And the Defense of Marriage Act, which gets proposed in congress in the spring of, of 1996, Bill Clinton signed it into law that September, was very clearly the kind of response of the mainland political apparatus to this growing fear that basically couples would leave Hawaii with marriage licenses, come back and demand that other governments, both 49 other states and the federal government, recognize their marriage.

Um, and, and so that sort of history was established.

Nobody had done a good job of, of sort of explaining how the Defense of Marriage Act actually got written, but the big that sort of struck me about that Hawaii story was how did this case start?

Because the, the sort of very, uh, uh, to the extent that that story had been told at the time in the 1990s or revisited, there was this kind of weird gap in this activist took these couples to the, uh, uh, uh, Honolulu office of the Hawaii Department of Public Health to request marriage licenses, but then he gave them to a lawyer who sued the state and none of the gay groups wanted to help him.

But, like, why were, why was he taking these couples in to begin with if he didn't have a legal strategy?

WALTER: And there was no strategy really at all.

ISSENBERG: There was no, there was no strategy.

WALTER: It was just, we're, like, we're gonna, I need to do this, right?

ISSENBERG: Yeah.

And so this guy, Bill Woods, as you me, yeah, gad-fly's one way of putting it.

I mean, he was basically...

I think he was the gay activist in Honolulu for the '70s and '80s, and he was, um, like, I think a lotta first generation activists in, in whatever community they're in.

He was, um, incredibly entrepreneurial and incredibly ambitious and was very good about, um, uh, creating things, not always that good about maintaining them.

Um, very good at getting attention and not always good at building relationships or alliances.

And he was immensely success, so, you know, he founded the "Gay Newspaper", he founded the Gay Community Center, he founded gay discussion groups.

I mean, so much of the early kinda LGBT infrastructure in Hawaii was because of Bill Woods.

Um, and he, I, I tell the story, which, parts of which, you know will cause anybody who's had to be in any event planning, um, uh, context probably some, some case of PTSD.

But he ends up in this rivalry for control of a pride planning committee in Honolulu in 1989 and he, his nemeses are, uh, these two lesbian women who have recently launched a monthly, uh, uh, gay and lesbian magazine, which is competing with his gay newspapers for advertisers.

Um, and he wants to have a parade, they just wanna have a, a picnic and rally.

They give him a sub-committee but don't actually take his recommendations.

Um, and he decides he's gonna start his own parade-planning committee.

So now he's trying, through, um, to do whatever he can to upstage this rival pride, pride event, and so he asks a friend of his, who's a chef, to create an international food festival and he gets the Royal Hawaiian Jazz Band to, to commit to play and he enlists some local politicians to be the, the, um, uh, uh, uh grand marshal of his parade.

And he decides he's gonna have a wedding.

Basically just, like, piling on spectacle.

Uh, and he's not a lawyer and he, um, it seems misreads the, uh, Hawaii Family, uh, uh, Law Code and comes away with the misguided impression that possibly if these couples marry, their, their marriages would have to be recog, recognized by the state.

And so he goes, he wants a state ACLU to back him up in this, and they want nothing to do with him because members of their board, uh, had fought with him over other issues, he is seen as a kind of, like, pick your cliché lone wolf, loose cannon, whatever.

Um, and, uh, but they also don't wanna say no to him because they know that if you, uh, end up in a sorta conflict with Bill Woods, he'll revel in the conflict and it, it won't be good for you.

Um, and then, uh, and, you know, picking an open fight for a gay, a, a group that, that considers itself a leader on, on, on sexual privacy issues with, like, the pro, most prominent gay activist in, in the state is sort of bad PR.

And so they just push him off for a year, you know, trying to hope to get him passed the pride month thing thinking that he'll give up, and eventually he doesn't give up and instead he says, "I'm gonna try to force the ACLU's hand by bringing these three couples in, um, and I'm gonna get basically the entirety of the Honolulu press corp to document it," thinking it's gonna force the ACLU to take this case.

And the ACLU still doesn't take this case and it gets handed to a lawyer the next January.

And that's when you start to have a court record that, that people have, have, you know, tracked the sort of contours of.

But it was really important for me to kind of figure out what the origins were because I think that there is this desire, uh, uh, you know, for people who've, who've read about or lived through other sort of landmark pieces of civil rights litigation to assume that this is all very carefully plotted, test cases, you go out, you find the perfect plaintiff, you shop around for a venue.

And if you've read the, you know, history of what led to Brown v. Board, if you led, you know, have read, you know, a lot of this sort of monumental legal history, there are often stories of how the lawyers very deliberately went about setting up these cases to end up with the result that they, that they, that they got.

And, and what I sort of stumbled into when I was trying to understand, Bill Woods passed away in 2007 or 2008.

I never met him, um, but I was able to sort of reconstruct through his papers what he was doing in that year and it was just pretty clear there was no plan, no strategy, um, and he, you know, his, he ended up basically having nothing to do with the case after it got handed to a lawyer named Dan Foley, um, who, in a certain respect, got very lucky with some things that happened on the Hawaii Supreme Court about a year-and-a-half after he filed.

WALTER: Well, that, I mean, is such a great story and it, it goes to sort of the heart of this, um, Sasha, which, you know, to me is, like, a major theme of this book which is its sort of ambivalent civil rights, um, this fight, right?

That there's ambivalence on part of the gay community who hadn't picked this fight but now it's in front of their plate when Hawaii puts their decision down, and these, as you pointed out, the sort of establishment gay groups who had been focused mostly on sort of incremental gains on AIDS, on other issues were like, "Wait, we did not, now we gotta do marriage?

We, um, what are we gonna do about this?"

Um, and then even opponents who were, uh, you know, not, not thinking that this is where their energy was going, so many of them, whether they're on the sort of traditional, um, cultural issues, but it had been abortion and things like this.

And as you go through the book you also notice that the sort of struggle with the, um, the anti-same-sex marriage side really having this divide in ambivalence over how far to take this.

Should we oppose any sort of unions?

Like, should be, be against civil unions too?

Or is this just about, like, marriage?

So, um, can you help us, uh, uh, sorta understand that and, and, and talk about that ambivalence and how it really was, is so prominently displayed, uh, you know, over these last 25 years.

ISSENBERG: Yeah, you know, and, and I think this is a, a, a broad critique I have of, of political journalism that, um, you know, I, I think we're very good about writing about sort of two-sided issues that fall along kind of crossfire style or, you know, across the aisle things.

I think political journalism generally is, is rather poor in documenting conflict within what to the out, what to outsiders seem like unified movements.

I don't know that we, you know, people don't do a good job of documenting conflict among labor unions, we just write about the labor movement.

We don't do a good job of looking at conflicts among Evangelicals, we just say religious conservatives want X. Um, and I think that sort of, you know, one reason that this all seems very new to somebody who's both, you know, in my case, researching it or, and to readers is that, um, I think a lot of the coverage of this issue just sort of assumed that there were two sides of every, of, of this issue at all times and, and never really got into the intermural conflicts, you know, a lot of which were private.

I mean, none of these, a lot of these groups don't have sort of interest in airing this stuff.

So, uh, it's not just complacency on the part of journalists.

You know, and, and it starts in the 1980s when, as I suggest, you know, there were no cases, marriage was not a live issue to the extent that anybody was debating marriage in the 1980s.

It was, uh, you know, a relatively small group of, um, gay and lesbian lawyers, legal academics who debated this as an abstraction, but there was a sort of active debate over is marriage worth pursuing?

And there were you know, some of it was a sort of strategic, tactical critique which is we can get these incremental gains.

Why are we, you know, reaching for the gold ring?

Or whatever.

Um, we're, we're not gonna win and we're just gonna, you know, embarrass ourselves trying.

But then there's a real ideological debate, which is, um, you had it, it broke down largely on gender lines, you know, to the extent that there was kinda LGBT family law in the 1980s.

It was overwhelmingly focused on the needs of women, and so female lawyers represented, you know, uh, uh, female clients who were almost universally in the, in the situation of, of women who had been in heterosexual marriages had had children biologically with their husbands come outta the closet, leave their marriage and then are unable to secure rights to their own children in, in court, their biological children.

And so to the extent that there's LGBT family law, it was focused on this, this question of children and adoption.

And a lot of the lawyers were, were, you know, women who had, had gone to college and law school in the, in the, you know, '60s, '70s, were shaped by sort of, you know, second-wave feminism, um, and they viewed marriage as this patriarchal, heteronormative institution that, um, uh, had been basically created, in their view, to subjugate woman.

Um, and the, their view was why should the goal of gay and lesbian family law types be to be included in that.

There was a lotta talk at the time about, like, uh, multiple families that the objective of LGBT family law to the extent they used that phrase would be, um, to kinda create a lee, to aim for a legal regime where a wide variety of family structures were treated equally under the law, single parents, parents of any gender combination, um, co-adoption.

All, all this stuff would have sort of the same legal foundation.

Um, and at the same time, you know, men in the, in the gay community in the '80s were not focused on this idea of I created a child, um, but they were overwhelmingly focused on, on HIV and AIDS.

I mean, there wasn't a, I don't think, a woman who contracted AIDS through sex until 1989 or 1990, um, and so AIDS was overwhelmingly a, a, a problem for men in the gay community.

And they, that led them to focus on, on concerns around death, which had not been a major part of, uh, uh, sorta the gay agenda to the extent there was one earlier.

And so all of a sudden you have men in this movement worried about things like hospital visitation, transferring property rights.

I read about a case that goes to the New York Court of Appeals in 1989 where they ruled that, that, um, uh, two guys who'd lived in a Hell's Kitchen apartment together for 20 years, one of them dies presumably of HIV, the other one is getting evicted, uh, even thought it's a rent-stabilized apartment and the court rules that, that his, his longtime partner qualifies as a close family member under, under the rent stabilization, uh, law in New York.

Um, and so, so there's this real tension over is marriage worth fighting for?

And it's not settled.

The thing that settles it is that period between the Hawaii decision in 1993 and the Defense of Marriage Act being written in 1996 that opponents of gay rights unify enough around this as this is the thing we are going to fight right now that a gay rights movement that had been ambivalent, as you say, fractured, um, really divided on, on a deep level of principle about this, uh, come together and decide our opponents are trying to stop us from getting it, we need to fight for it.

Um, and, you know, it is, you know, it's, it's not just that there's ambivalence.

One of the things that come through the stories is sort of the unintended consequences of this at all times... WALTER: Right.

ISSENBERG: Um, where, with things in retrospect that look like huge strategic errors.

And I think this is one that, you know, this had been this local fight in Hawaii that gets nationalized by gay marriage opponents, um, in a way that at the time seemed to advantage them, um, and also gets, you know, federalized in, in the sense that now it is a matter of federal statute.

The only reason this became before the Supreme Court in 2013 in the first place was because the Defense of Marriage Act was written into the federal code.

And had it not been, I assume that we would be in a state-by-state, you know, there'd be no reason to bring this into federal court at any point.

And that, that was ultimately something that, in retrospect, it was religious conservatives who, who, who set themselves up for that ultimate failure.

WALTER: Well, talk about the divide within the conservative movement and also how this, well, it did not, um, sort of sneak up on them.

You write about the fact that as this, uh, the first court decision in Hawaii came down, there was definitely alarm being sounded in the conservative movement, like we've gotta start preparing for other states to, and other state courts to follow Hawaii's lead, and so preparing for this.

But as, as we moved along through this process, you started to see those rifts occur about the right strategy and, you know, sort of watching where the other one, you know, as you do, you do with any opponent, you're watching them zig and you're thinking should I zag or should I zig with them?

Wh, where do I... ISSENBERG: Yeah, and so this is a, a, an unusual, when we think about this sort of, again, in comparison to other civil rights movements or social movements, you know, both sides were on offense and defense simultaneously... WALTER: Mm-hmm.

ISSENBERG: On this issue.

You know, there was nobody trying to expand Jim Crow in, in, in 1955 or '60.

Um, and so you had times where there were, you know, states where folks are trying in the courts or through the political process to legalize same-sex marriage but you also had opponents who were trying to introduce either bans through statute or constitutional amendments, um, uh, at the same time.

And so the strategic calculations are, are a lot different in terms of where you fight and where you don't.

Um, but it's this, it's a period between, around the time of Massachusetts.

So the, the, the Massachusetts court, um, ultimately rules in November, 2003, but what happens earlier that year is the Supreme Court in Lawrence v. Texas strikes down state bans on, on sodomy.

And Scalia writes in his, in his descent, um, "Gay marriage is next."

Uh, and that is he writes it explicitly as a warning to conservatives, you know, um, and he was incredibly prescient in, in, in seeing the arc of, of, of this.

And that drives what had been a fairly small effort among conservative activists to push for a federal marriage amendment.

Um, it had not gotten, it, it had been drafted in 2000, been introduced on the hill in 2002, never got traction, um, until, uh, uh, Lawrence.

And within a week, Bill Frist, who's the majority leader at the time, um, endorses it, uh, which, which signals that, um, it's gonna get a real sort of push on the hill.

Uh, and so, uh, and all this is in anticipation of, of the, the expectation that, that Massachusetts is ultimately gonna legalize same-sex marriage.

And because of Massachusetts' state rules, it's gonna be very difficult to beat that back through the political process after that's happened.

Um, and so the strategic question the conservative face, face at that point is there's, like, broad consensus among religious conservatives that pursuing a marriage amendment is really important and people are already using real apocalyptic language that if we let this happen, it's gonna be, you know, 9/11 or it's gonna be, like, really hyperbolic stuff.

WALTER: Yep.

ISSENBERG: Um, but the, so, you know, so the, but the question is how, what should the amendment say?

And so there, there's one debate which is should it just preclude state court, or courts from interpreting any constitution to award marriage rights?

Acknowledging that if a state goes through and this is, you know, more of a proceduralist argument that if a state goes through the political process to legalize same-sex marriage for its citizens, that conservatives should respect that as an exercise in a federalist spirit, exercise that as this is, you know, laboratory of democracy, state should be able to do that, but we, as conservatives, are opposed to activists, judges imposing this on the public.

Um, ultimately, yeah, so, so that's one tension.

And then the bigger tension is do you write this to, um, uh, just ban marriage?

Same-sex say basically that marriage in the United States shall only be between a man and a woman.

Or do you write it to say any equivalent of marriage, which will be civil unions or sort of robust domestic partnership that none of the incidents or benefits of marriage shall be extended to same-sex couples in the United States?

And the, the group that had been pushing this, you know, in, trying to get, in vain trying to get the Bush White House to take this seriously in 2003 almost cracks up over this divide because you have everybody recognizes that the politics of this are such that it's already a heavy lift, obviously, to pass a constitutional amendment, um, and it'll be impossible if this is a blanket ban on states recognizing same-sex couples.

But you have kind of, you know, absolutists within the movement saying, "If we're not gonna stand..." you know, Jerry Falwell folks like that, who were saying, "We're not gonna, um..." You know, most people don't have a great understanding of how Capitol Hill works, um, uh, arguing that we to push for the kind of absolutist vision of this and we shouldn't compromise.

And, and some of the inability to get, uh, the Bush White House on board is that throughout the fall of 2003 after the Massachusetts decision comes in, the conservative activists cannot agree among themselves what the constitutional amendment should say.

WALTER: So we talk about this sorta strategy, and it seems like for years, as you pointed out, like, for conservative a-activists, what they had going for them was just public opinion, right?

Like, you didn't need to do much more than that is to say to especially the politicians who were up for reelection, like, "Look at the data.

It's not popular.

If you support gay marriage or support, seem to be supporting it, you're gonna lose."

And so, right, we saw the tension within the Clinton White House over this.

Um, but then, as you said, like, in your tweet the today, you know, it's almost like something flipped in 2011.

Like, literally you can look at the Gallup polling and you see it's, like, opposition, majority, uh, uh opposed right up until about 2011, and then that's where the tipping point is and it flips to majority supports and then it just keeps going up.

So, you know, you see it going, you know, through the late '80s, 60% plus against, now it's almost 70% or even more at this moment in time for.

And at the same time, you know, it's, it's unclear what that, like, how that became a tipping point.

And the one thing I wanna, want you to address is, you know, it seemed like, yes, the writing looked like it was on the wall, Massachusetts.

Barack Obama gets elected in 2008 and it's like, okay, now we've really hit this, like, cultural moment, tipping point moment.

And it's also the same year that the Proposition 8 amendment in California passes, which, you know, you'd think if there's any state that would defeat an anti-gay marriage amendment in the year 2008 it would be the state of California.

And millions and millions of dollars went in to defeat that amendment.

Hollywood, you know, all the big stars, I remember that, all wearing their, like, no on eight tattoos and bumper stickers and all of that.

And there was a real reckoning, it seems like, at that moment.

So could you talk about, you know, what the proposition eight moment was?

And like everything in life, you know, history is not a straight, direct line.

It doesn't just go from, like, A to B.

They just kept going up and up and up and winning.

It was that you had this incredible setback at, at time where it looked as if the corner was turned.

ISSENBERG: Yeah, so there had been before proposition eight about 35 states that had had, um, state-wide ballot measures to ban same-sex marriage.

WALTER: Right.

ISSENBERG: And in every one of those states, the anti-gay marriage side had succeeded.

And there was, you know, almost always a good rationale for the folks who had been on the losing side of that fight as to why.

They had fewer resources than their opponent, public opinion was against them from the beginning, the polit, it was a fundamentally conservative state, the political establishment was already against them, it was an, uh, a off-year electorate with lower turnout.

Whatever.

Like, there was always a good reason to explain why they kinda should've lost.

Um, and California was the first time that there was not that excuse.

Not only is it a liberal state, it had already had marriage, you know, I think a lotta people outside California don't fully appreciate what happened with Proposition 8.

It wasn't just proactively, preemptively banning a court from awarding marriage, it was for six months, five months this, you know, couples had been getting married in, in California, about 20,000 of them, I think, um, under a state Supreme Court order.

And this was undoing, not undoing their marriages, but taking away the right to, for people in the future.

Um, uh, and I think to, to go at your earlier question, like, uh, or earlier part of the question, like, part of it was just the status quo bias was often on the side of not doing this new and crazy thing.

And in California, the status quo was that gay couples were getting married without obvious incident, and so that was a big deal.

Um, and the whole political establishment in California was opposed to Proposition 8.

Um, uh, not just democratic electeds.

Arnold Schwarzenegger, who was the governor, opposed it.

You know, the, so there was, when, when the gay marriage side lost that fight, they were shocked and they did not have a good explanation.

And it, it, um and they had all the money in the world.

They had $45 million to spend.

Um, uh, it was one of the most expensive ballot contests, uh, uh, in American history that point of any kind.

And so that, that caused a real reckoning within the folks who were doing these campaigns about what did we do wrong?

And there had never been that type of examination previously.

And you, what you get out of it is a sort of new structure.

There was a creation of a group called Freedom to Marry or a re, a relaunch of a group called Freedom to Marry, um, which all of a sudden becomes a kinda hub for all the political, legal strategy and research around this issue, which is a real different model from a kinda interest group.

You know, what, what you'd had before is a human rights campaign and the National Gay and Lesbian Taskforce, which has a whole umbrella of issues that they care about, right?

And so part of, you, you see HRC being split in 1996 over how hard to push back against democrats who support DOMA.

And they're weighing a lot of other interests.

And I get it.

Like, your goal is long-term relationships on the Hill so the next time you go to get, like, Ryan White Act funding, you know, renewed, that a moderate republican or conservative democrat takes your meeting and you could get through to them on this issue, right?

That, like, when you go to them to say that, that the commerce department should tally hate crimes statistics for gay and lesbian attacks and not just on race and gender, that people are responsive to that.

And if we pick a fight, we're not gonna win on marriage, we're just gonna alienate those people.

Like, I get that, like, that's the institutional imperative.

What Freedom to Marry did is it said, "We were built for one goal, and that is marriage in the 50 states and the District of Columbia.

We're gonna put ourselves out of business as soon as that happens.

We do not care about ending Don't Ask, Don't Tell, we do not care about a non-discrimination bill.

We don't care about any of these other things.

We were built for one goal, and that's really unusual, um, this, this sort of discreet policy objective.

And luckily, there were a sort of circle of very wealthy, uh, uh, kinda gay mega donors who had already taken to marriage as an issue, um, and they were ready to fund this.

And Freedom to Marry coordinated a lot of research that, that, um, that kind of revisited a lot of the fundamental assumptions about how activists should talk about this issue, how they should organize their campaigns and undermine a lotta the conventional wisdom about the best way to go about doing that.

WALTER: That was one of my favorite, yeah.

ISSENBERG: And 2011 that you see that those changes take effect.

WALTER: Well, that's one of my favorite, um, uh, anecdotes in the book was about, um, how, you know, it was through this research post-Proposition 8 that they said, the Freedom to Marry folks said, "We gotta stop talking about this in sort of legalese, right?

This is about, you know, ability for gay couples to see each other in hospitals.

All the, all the tax benefits, all the legal rights, and make it about love and commitment, right?

Make this much more about love.

And to, to me it seems so obvious, right?

Well, of course personalize this issue.

Make this about human beings rather than about this legalese.

Um, but why did it take so long for that to happen?

And I'm also wondering if you can weigh in on the fact that during this same time that marriage is not legal, uh, there are still a lotta people getting, gay couples getting married, right?

And having ceremonies.

And, um, so talk about that, that as well.

ISSENBERG: Yeah, so, so some of it is just it's legalistic 'cause this movement, the political activity started... WALTER: Was.

ISSENBERG: Response.

WALTER: Started with lawyers.

Yeah.

ISSENBERG: And so the lawyers were often the ones sort of starting the campaigns and, and, and then adopting the, you know, the political activists adopted the, the arguments that had been used in court, I think, is a, a big part of it.

But the other part of it is that, to some extent, by 2010 or '11, uh, gay marriage campaigners were a victim of one of their successes, which is the success of civil unions.

Civil unions, you know, were never a goal.

Um, they are, uh, uh, a, a lawsuit wins at the, uh, Vermont Supreme Court in December of 1999, the Vermont Supreme Court says, "It is unconstitutional to discriminate against gay and lesbian couples," but says to the legislature, "You don't actually have to let them marry.

You could find some other institution that gives them all the equal benefits of marriage as long as, you know..." And so the legislature comes back with this sort of novel idea of civil unions, which is marriage under a different name.

And at the time, that's obviously incredibly provocative in, in, in Vermont.

Howard Dean wear a, a bulletproof vest as he runs for reelection because there's, like, Vermont, like, a real, you know, um, sense of fear.

It's a more emotionally front political issue than anything else.

But over the next decade, civil unions becomes a safe middle position.

You know, basically every democrat who's running for president in 2004 supports civil unions.

Almost all the ones who are running in 2008, including Obama and, and Hillary Clinton support civil unions.

Um, and by 2010, the folks who were doing opinion research on this basically split the country into three groups.

There are about a third of the country that supports same-sex.

Maybe close to 40% who support same-sex marriage, right?

You have about a third of the country who were just, like, fundamentally anti-gay and opposed a lot of gay rights initiatives.

I don't think it's really about marriage for them; it's about the fact that it's gay rights.

And they you had what they called the moveable middle.

And this was, like, roughly a third of the country, overwhelmingly female.

They told pollsters, uh, uh, almost unanimously that they knew somebody who, they had a friend, coworker or family member who was gay or a lesbian, and they supported civil unions.

And these people had become convinced what, had been persuaded by the a, uh, a decade of these arguments that gay couples deserve hospital visitation rights, that they deserve the ability to pass property onto a, a, a, a, a surviving spouse, that they, you know, all the, that they, you know, all those things.

But they had not, what they did not fully get was the gay, why gay people wanted to get married because they got all the rights and benefits through that system so I support that and then I don't have to reckon with the kind of religious moral questions about marriage.

And so to some extent, the, the civil unions movement had been so inadvertently successful that the people that, that these campaigns in 2010, 2012 were persuading were not people who were opposed to recognizing gay couples, they were people who you had to convince civil unions are not enough and civil unions are insufficient.

And so you had to go back to these people and basically the messaging challenge was we have to tell, explain to these people why gay people wanna get married.

WALTER: Right.

ISSENBERG: And the argument is that they wanna get married for the same reason that everybody else wants to get married, but they had not been told that because they had been told that it's about visiting somebody in the hospital.

And so, and all of a sudden what you start to see is things like putting gay couples in TV ads, which had been basically verboten.

Um, and if you think about who you're persuading as people who were fundamentally anti-gay, you would get why that's a not a great messaging tactic.

WALTER: Right.

ISSENBERG: Think about, I'm trying to get people who already are sympathetic to civil unions to make the jump to supporting marriage, you would get, oh, okay, I won't need to show them what gay people being married looks like and that it's, like, you know, you can identify with it, it's non-threatening, it's, you know, all these things.

And so that, that's the big shift is, is that, like, the audience has changed.

WALTER: And, uh, that's right.

And that there's also, um, this sense, I mean, I found this personally, like, um, we had a ceremony in 1999.

Obviously it's not legal, but the number of, of people who were at that ceremony who are, are very smart, well-educated people had no idea that this was not actually a legally sanctioned event or that we had to set up an entire, like, legal model, uh, structure, um, to do all the things that marriage gives you, right?

It was like, oh, I thought this was all done now.

Like, we, we've sort of gotten to this next place, people are getting married, I know these gay couples, and so it seems like there was as much too about, um, getting people who were supportive of this idea of gay couples having a marriage that, actually, this is not, um, we need to go a step farther, right?

That it's not just trying the, the persuadable middle but even those who were supportive of it didn't quite appreciate or understand that this wasn't a done deal even though there was "Will & Grace" and people seemed to be more accepting of this issue, right?

ISSENBERG: Yeah, you know, and I that think there was an effort for many years among gay marriage campaigners to say, "This is just civil marriage.

Like..." WALTER: Right.

ISSENBERG: You know... WALTER: It's not gonna hurt your marriage.

Don't worry, we're not gonna tell the church.

ISSENBERG: It's not gonna hurt your marriage, it's not gonna interfere with your, your religious denomination, it's not and I think some of that, in effect, was to, to minimize the symbolic value of being married, fully married, not just I had a holy union ceremony or whatever and we got contracts, but that, like, being validated, respected by the institutions of society could come along only with marriage.

And, um, you know, it all and, and part of it that, this picks up the other storyline that we, that we left behind, which is, like, the divisions within the gay rights community, the gay, gay and lesbian community over marriage really shifted.

There's still people who are critical of marriage as an institution.

I mean, there are straight people who are critical of marriage as an institution, um, but what became, you know, I, I think in a way that wasn't clear was gonna be the case in the 1990s.

It became clearer by a decade ago that, um, uh, that pursuing marriage as the kind of, you know, the gold standard of, of relationship recognition was important to people and, um, and that this sort of full inclusion in the American family would require being able to get married on equal terms.

And I don't think that that was clearly stated as a kind of not just a, a, an ambition of, like, political and legal leaders in the LGBT community in the '90s but necessarily by, by, you know rank-and-file gay people 'cause gay folks of a certain generation just came up not expecting that marriage was an option and perhaps not structuring their lives around that as a goal.

And I think what you started to see, you know, and I think that marriage just becoming a political and cultural issue in the '90s in the way that it did, you know, a lotta the story's about, like, breaking down a barrier of imagination.

Like... WALTER: Right.

ISSENBERG: It was crazy in the early 1990s to think not just that gay and lesbian people could get married in your lifetime but that this, like, like, that just, that was nuts that you should demand it or expect it or fight over it.

Um, and so you started to have a generation of gay and lesbian people who treated this as a re...

Even if they weren't in states where it was legal, they could imagine I have an ambition of getting married.

And that was not a, somebody who had that ambition in 1990 was, like, bonkers.

Um... WALTER: Right.

ISSENBERG: And, and so I do think that that's part of it is you had a kind of demand side within the gay and lesbian community, uh, gin up out of in response to the, the sort of, you know, salience of this as an issue.

WALTER: The other thing I want you to touch upon is, is the way in which, um, conservatives, those who didn't like the idea of, of gay marriage, really use the issue of it being, um, you know, an, about freedom, right?

And sort of a, a, a freedom from having your children have to learn about such things, right?

That, um and look, we still see this today, certainly.

Or most, most especially now on transgender issues but this issue of, look, you guys can do whatever you want.

You're adults.

That's totally fine.

But when it comes to oh my gosh, now my kid, my little kindergartner is gonna have to learn about what gay marriage is and then I have to explain to them what a gay relationship is, well, that puts a burden on me.

And that was a pretty effective line of attack for, for many years.

T-talk about that and how it became sort of diffused by, uh, by the pro-marriage movement.

ISSENBERG: Yeah, and so the, I think this is another thing where the kind of political rhetoric is downstream from the legal arguments.

WALTER: Mm-hmm.

ISSENBERG: Um, you know, Hawaii was the first place where a state had to go and defend discrimination in, in its marriage laws i-in a trial in 1996.

And initially, um, the state, uh, attorney general said that, you know, "We have seven possible rationales that we're gonna put forward in, in court for why it's okay to discriminate."

And you had stuff like moral disapproval and it's the best model of the family and, like, some crazy things like it would be bad for Hawaii's tourism industry, which I never really understood, but whatever.

And over a series of, um, uh, uh, legal cases and notably trials that took place in, in Hawaii in 1996 and then in federal court in California, the Prop 8 trial that, that, uh, uh, David Boies and Ted Olson, um, where, where they sued the state, um, courts dismissed almost all of these arguments.

Um, and especially after the Supreme Court ruled in, in the 2003 case that, uh and actually, in a, in the 1996 case and a 2003 case you couldn't just ban gay sex because of moral disapproval.

Like, that was not a justification for having the law.

It threw out a lot of the kind of moral and religiously informed arguments about, or, or just general ideas of superiority of heterosexual relationships, or, or the in, inherent inferiority of, of, of homosexual relationships.

And so much of the political rhetoric was founded upon this idea that they were just, like, fundamentally inferior.

And those got laughed out of court, um, 'cause they just couldn't, they had to put witnesses into courtrooms to, to demonstrate this, like, have social science or, like, something that proved it other than basically citing, like, the Bible and 6,000 of human history.

And they could put nothing in front of a judge.

And the judges were contemptuous of the arguments that were made.

Um, and I think that the last argument that was standing in court was this question about whether children are better off if they're raised in same-sex households ver, uh, or in, in opposite-sex households versus same-sex households.

And the most generous reading of the research that was marshaled behind this is maybe it's too early to tell.

There's no actual evidence that kids are worse off, but there was enough, like, we're not really sure and it sounds like it could get really bad if we don't know.

Um, well what, what I think over the course of, of focusing the legal arguments on the kinda kids-related stuff, they realized how potent this was as a political issue, uh, and, um, uh, you know, the, the and what you had was this real imbalance.

You look at the ads from Prop 8 and you have this, you know, some version of either they're gonna, you know, try to turn your kid gay in school or, as you say, Amy, like, they're, you're gonna have to explain this stuff to them 'cause they hear it in school.

Uh, and then on the other side, literally the conservative ad is Diane Feinstein in her home library saying, "Don't, don't mess with our Constitution."

And you had this incredibly emotionally... WALTER: Right.

ISSENBERG: Potent, scary stuff and this incredibly inert, legalistic constitutional... WALTER: Right.

ISSENBERG: The other side.

And anybody would just look at those two ads and go, like, "Wow, these are hitting different registers."

Um, and so part of what happens is just that, that the messaging around marriage gets this emotional component because you're saying, like, gay people are invested in being married for the same reasons you are.

Um, but then also, they have a community of interest around people, families, coworkers, children who are invested in them being married.

ISSENBERG: So much of Anthony Kennedy's decision in Obergefell is about that the fundamental constituency that he's talking about is not entirely that gays and lesbians are, uh, uh, punished by being excluded from marriage but the children that they raise are being, uh, basically branded with a mark of inferiority because their parents are treated as lesser in the eyes of the law.

And I think that, you know, that that is down to from a, a type of emotional, um, uh, political messaging that, that you started to see a shift towards.

ISSENBERG: And there was just such ambivalence early on.

Anybody who went into one of these campaigns to fight back a gay marriage ban said, "Let's run ads of lesbian parents with their kid," would've said, "No, that violates every rule about what is gonna scare off moderates."

They don't wanna see a, a gay and lesbian couple together.

You know, they talk about the ick factor, it's gonna gross people out.

And then you don't wanna show children because it just makes people and, like, I think that there was this we need to show gay and lesbians as they live and in their communities and, and all this stuff.

And that's a big turn I think.

WALTER: I just wanna read, uh, uh, uh, I noted this.

You noted this too in your postscript, uh, about, um, uh, Gorsuch writing, um, I think this is an Obergefell, right?

This is this opinion in Obergefell about... ISSENBERG: It's Ken, Kennedy.

WALTER: Oh, Kennedy.

Well... ISSENBERG: Or Gorsuch wasn't on the Court during... WALTER: Uh, that's right, that's right, so it couldn't be that.

Uh, I don't know where but this is your line.

"Gorsuch, Gorsuch express sympathy for the concerns," um, of those, uh, who, who held religious be, belief who were upset by these rulings but instructed them to prepare lawsuits that would invite the Court to rule, on quote, "how these doctrines protecting religious liberty interact with the newly expanded civil rights protections."

Um, so it seems like that's sort of where and, and you said, "And this is..." You know, uh, you said, "With the, with that invitation, the Supreme Court seemed to close the book on one era of gay rights jurisprudence and open the next."

So can you explain that and answer a question where sort of where things go next, right?

ISSENBERG: I think that was from the Masterpiece Cake Shop, uh, which was a baker in Colorado... WALTER: Thank you.

Yes.

ISSENBERG: Who, um, a couple had been married in Massachusetts, came, wanted to get a cake for their, they were two men, get a cake for their wedding and the baker said that it, it sort of violated his religious beliefs to, to make a cake.

And then there are a whole lot of things about whether baking a cake is a form of personal expression.

Um, but it showed sort of how much the tide had turned.

Basically, we had for 40 years religious conservatives arguing in, in, in the political sphere that they represented a Judeo-Christian majority in the, I mean, there's a reason that Jerry Falwell's group was called Moral Majority.

The idea was that there was a Judeo-Christian majority in this country and that the laws should reflect those values.

And this drove a lot of the abortion messaging, it drove the idea that we should amend the constitution to reflect this traditional Judeo-Christian view of marriage.

Um, and what you started to see, uh, even before the Supreme Court ruled in Obergefell, was conservatives saying, "We lost the culture wars.

Um, uh, you know, defeat is inevitable and we're now the victims.

We're now a persecuted minority that needs the protections of the Court because we cannot win in the political sphere."

The, the media, Hollywood, academia, the political establishment is systematically structured against us.

We need to be treated as a protected minority under, under, uh, civil rights, civil liberties laws.

Um, and it was exactly the same posture that, that gays and lesbians and other minority groups took when they would, say, go to courts and say, "Yeah, we lost in the political sphere.

It's fundamentally biased against us.

We don't, we're power, we're a powerless minority.

You need to protect us."

And so what we're now seeing is, I mean, this is fundamentally the kind of jurisprudence of, of, of the defeated.

You know, they, they, they've given up on, uh, at least on this sort of gay, gay marriage relationships front, um, uh, trying to define the law as they see fit and now they want basically to be protected from having to be forced into this activity that they don't like.

I mean, I think that and so, that, I think is, is just a response to losing is, is saying, "We want, we need to be sort of sheltered from, from the state forcing us, you know, into this."

And I think that the question, the legal question's how far can that be taken?

There's a case that the Court will rule on presumably later this month called Fulton versus City of Philadelphia, which is about a Catholic social services charity and whether they can refuse to place foster children in, um, uh, with same-sex couples.

Um, you know, could we end up in a place and, and I think a lotta people expect that the Court will rule that, that, that isn't a, a, a, an unfair imposition on their, uh, uh, first amendment religious liberty rights.

Um, but then I think you could have a qu-question, you know, could, let's say, Hobby Lobby, a private company, decide, um, we're gonna give, we're not gonna give dental coverage to, uh, couples who are in same-sex marriages.

We'll only give it to people who are in opposite-sex marriages.

Um, and, and how big is the carve-out, and will that end up having the effect of, yes, there is civil marriage and everybody is married in the eyes of the law but the Court has given wide birth to the private sector to say, "We could just treat different types of married couples differently, um, because of our, our religious, religious beliefs."

And, and so I think that's where the sort of fight on marriage is, and I think the trans stuff is, you know, an example of, uh, uh, religious conservatives going where public opinion is still in their favor and we're still the kind of innate status quo bias of, of this thing is new and foreign and people are uncertain and scared about it and we're, if we're protecting the status quo, we're in a much better position than trying to undo the status quo.

HOLLAND: We are nearing the end of our time, so just quickly, um, do either of you have a copy of the book that you can hold up for our audience out there?

WALTER: Yes, good job.

I, um, I'm the kinda person that takes the cover off mine, so it's terrible.

I'm not good... ISSENBERG: Well, I have the cover, so that's what it looks like.

WALTER: For, for pitching it, but... HOLLAND: Um, so we merely at Politics and Prose want to thank both of you for being here and from our shelves to yours, we hope you're out there staying strong, staying safe and staying well-read.

We will see you next time.

Thanks again, Sasha Issenberg, Amy Walter.

Have a good evening.

WALTER: Thanks so much.

ISSENBERG: Thank you, Julia.

NARRATOR: Books by tonight's authors are available at Politics and Prose bookstore locations or online at politics-prose.com.

(music plays through credits)