Then Comes Marriage

by Roberta Kaplan

From the moment Matt Coles called me, I was obsessed with figuring out how to win the case for marriage equality in New York. At that point, the only state that had legalized marriage between lesbian and gay couples was Massachusetts, and the idea that other states might follow caused many Americans to break out in hives. As a result, our message to the judges would need to be: Be brave. Do the right thing, even if it’s hard.

  In other words, what we had to do was convince the judges that New York was different—that it should be a trailblazer among the fifty states, a leader of other states rather than a follower. This wasn’t a crazy idea. New York, after all, has one of the largest populations of openly LGBT residents, behind only California and Texas. It also has a history of acting boldly in gay civil rights. In 1980, more than twenty years before the Supreme Court’s Lawrence decision removed the criminal sanction from gay sexual relationships, the New York Court of Appeals, New York’s highest court, had struck down its own antisodomy statute in a case called People v. Onofre. And New York was also ahead of the curve with respect to second-parent adoption by gay parents as well, thanks to the Jacob and Dana decision back in 1995.

  So why shouldn’t New York continue to lead the way in gay civil rights? Sure, six out of ten Americans still believed gay marriage should be illegal, but New York was better than that. This was the argument that I believed would give us our best chance in the New York Court of Appeals, which ultimately would decide the issue.

  In the beginning, however, it was not clear that our case would make it that far. As soon as New York shut down the New Paltz marriage experiment, attorneys from all over the state rushed to file lawsuits. At least five suits began making their way through the court system, and as is typical in a big civil rights case, there was fierce jockeying for position. Everyone wanted to be the lawyer who brought marriage equality to New York State. The ACLU and Lambda Legal, both of whom had been working on the issue for years, each wanted their case to be the one chosen by the Court of Appeals to decide the issue.

  We filed our case, Sylvia Samuels et al. v. New York State Department of Health, on behalf of thirteen plaintiff couples. It was a common practice in those days to have a “rainbow coalition” of plaintiffs in gay rights cases. The theory was that by having many different kinds of couples (gay men, lesbians, older people, parents, couples of different races) as plaintiffs, the judges would be able to see the breadth of the affected population.

  But as I soon found out, there is at least one significant problem with this strategy. In a case with so many couples, inevitably some of them break up. A few of our plaintiff couples separated over the next two years, which did not help. We needed to bring in some new plaintiffs who we knew that we could count on not to separate while the case was pending, so I decided to add New York State Assemblyman Daniel O’Donnell—the brother of comedian and talk show host Rosie O’Donnell—and his then boyfriend (now husband) John Banta. The ACLU was worried that Danny would receive the lion’s share of the press attention, but I insisted. As a private firm lawyer, I have more freedom; I don’t have a constituency I have to please, and I do not have to raise money. I focused on what I thought would best help to win the case.

  Bringing in Danny O’Donnell was not the only time the ACLU and I clashed over strategy. While ACLU attorney James Esseks and I were mostly on the same page, Matt Coles and I had our differences.

  From the start, we disagreed about how best to argue the case. Matt insisted that we open our brief with what is known as the substantive due process argument, based on the decision of the Supreme Court in the 1967 case Loving v. Virginia, a case defended by an interracial couple whose marriage was not recognized in their home state. For this argument to succeed, however, the court would have to conclude that the fundamental right to marry necessarily includes marriages between gay couples. I did not think we would succeed in convincing the court of this argument back then, since historically no one ever thought of marriage as an institution involving gay people. Instead, I believed the far better strategy would be to emphasize the equal protection argument, which posits that the Constitution does not allow the government to treat gay people any differently than straight people with respect to marriage. In my mind then and continuing today, this equal protection argument is, at its core, what LGBT rights cases are really all about—the simple proposition that gay Americans, like all Americans, have the constitutional right to equal protection under the law.

  Disagreements will arise in any case with multiple lawyers. But when I told Matt I thought he was making a mistake with his strategy, things got heated. We were on a conference call with several other lawyers, and when Matt continued to insist that we open the brief with the due process argument, I pushed back.

  “Listen, Matt,” I said, “I’m telling you, I know how these judges think. I clerked on the New York Court of Appeals. This is really not the way to go.” The main reason Matt had brought me on to this case, after all, was because of my experience clerking on the court. Why not try to use what I knew from that experience to improve our chances?

  But Matt apparently had heard enough. He informed me that he was tired of hearing about my Court of Appeals experience and that I needed to just listen to him. I am sure the conversation went on, but I did not hear it because I had already hung up the phone. As a corporate litigator, having an adversary yell hardly fazed me, but I was not about to be publicly scolded by a colleague.

  Andrew Ehrlich, one of the Paul, Weiss associates (now my law partner) working with us on the case, was also on the conference call. He told me that after I hung up, there was a moment of silence on the line, and then Matt said, “Is Robbie going to call back in?”

  “I don’t think so,” Andrew replied.

  We ultimately ended up opening the brief with due process, as Matt had insisted. I worked hard on that brief—even reading stacks of paperwork and taking numerous calls from the ACLU during my honeymoon with Rachel in Venice. I suppose there is some irony to fighting so hard for marriage equality that you risk spoiling your own honeymoon.

  THE FIVE MARRIAGE equality cases made their way through New York’s lower courts, and by the beginning of 2006, four of them—including ours—had lost at the intermediate appellate court level, while the fifth had been tossed out. Now it was on to the highest level, the Court of Appeals, but which case would the judges choose to hear? There was frantic lobbying behind the scenes, but ultimately the court decided to roll all four cases into one, giving it the name of Lambda’s original case, Hernandez v. Robles. The lawyers on the various cases decided that four attorneys, including Lambda’s Susan Sommer and me, would present oral arguments, which were scheduled for May 31, 2006, just six weeks after Jacob was born.

  This was it: we were going to pull together to win marriage equality for all New Yorkers. I had taken part in some high-stakes cases for Paul, Weiss, so I was used to working under pressure, and for the most part I even enjoyed it. But this was different.

  Unlike in 1995, when I was deeply closeted during my clerkship with Judge Kaye, I was by now a reasonably high-profile lesbian. There were few other openly gay partners at Paul, Weiss, and when I had first made partner, I had merely been peeking out of the closet. By the time Rachel and I married, I felt comfortable enough to invite more than a dozen colleagues from the firm and their spouses to our wedding. Rachel and I also worked actively for pro-LGBT political causes and candidates, often holding fund-raisers in our home. For the purposes of this case, I was not just a lawyer arguing for marriage equality; I was the lesbian lawyer arguing for the right to marry. And everyone knew it.

  Of the seven judges on the Court of Appeals at that time, I knew four of them personally. I knew Judge Kaye well, of course, from my clerkship with her. Judges George Bundy Smith and Carmen Ciparick also had been on the court during my clerkship, so I knew them as well. There was one other judge whom I also knew very well, but for a very different reason.

  Back when I was a summer associate at Paul, We
iss, I was sent down to Huntsville, Texas, to work on a pro bono death penalty case. We were representing a convicted murderer, a mentally disabled man named Johnny Paul Penry who had been convicted of raping and killing a young woman in 1979. Although Penry had been on death row since 1980, the Supreme Court had granted him a retrial, saying that the jury had not properly considered evidence of his mental retardation.

  Robert Smith, the Paul, Weiss partner on the case, was a conservative, Federalist Society kind of guy, not your typical anti–death-penalty lawyer. (According to its website, the Federalist Society “is a group of conservatives and libertarians interested in the current state of the legal order . . . This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.”) I worked very closely with Bob, primarily helping him prepare for the cross-examination of prosecution witnesses, and he taught me a great deal. I became hooked on the process of preparing for trial, and I made a special request (one that was granted) for Paul, Weiss to allow me to stay the entire summer in Huntsville.

  It was a long, emotional, intense summer, and by the end I had bonded with the whole Paul, Weiss team, including Bob Smith. Watching how vigorously this powerful corporate lawyer fought for his client, a man whom society would just as soon forget, was a great lesson for a young law school student. I never forgot the example that Bob had set. And now, sixteen years later, I was about to see him in a very different context. Bob was now a judge on the Court of Appeals, the fourth judge I knew.

  I liked and respected Bob, but it was clear that our chances of getting his vote were slim. We only needed four votes to win, though, and I thought I knew how we could get them. I knew that we had Judges Kaye and Ciparick, and I believed that we could get the vote of Judge Albert Rosenblatt, too. As a result, we only needed one more vote. I thought our best hope would be to so convince Judge Rosenblatt that we were right, he would then try to persuade his colleague, Judge George Bundy Smith, to vote our way. Judge Smith, who is African American, had been a Freedom Rider in the sixties, so he obviously was a proponent of civil rights. But could we convince him to see marriage equality as a civil rights issue as well? I believed that Judge Rosenblatt was the key to making that happen, a point I kept in mind as I prepared.

  But just a few weeks before the oral argument, Judge Rosenblatt announced a stunning decision: he was recusing himself from the case.

  We received the word through a court order, and the minute I heard the news, I slumped forward and put my head in my hands. Without Judge Rosenblatt, our chances of winning were reduced to almost nothing. In theory, we could still end up with a 3–3 tie, at which point the case would be reargued and a seventh judge would be brought in to cast the deciding vote, but it seemed very unlikely that we could get any of the other three judges (two of whom were Upstate women appointed by Governor George Pataki) on board.

  Judge Rosenblatt’s recusal was extremely disappointing, not to mention somewhat baffling. Initially there was speculation, later confirmed by the local New York City gay paper, that the reason for Judge Rosenblatt’s recusal was the fact that his daughter, an attorney in Los Angeles, had worked on amicus briefs in two other marriage equality cases brought by Lambda Legal. As far as I know, Judge Rosenblatt has never spoken publicly about why he recused himself from Hernandez. But his decision left us scrambling as we approached the date of the oral argument. Winning now appeared to be a long shot, and we had to be prepared for anything, including pointed questions about polygamy, incest, and bestiality, which at the time were the favorite go-to points of the anti–gay-marriage groups. This was going to be quite a ride.

  THE ORAL ARGUMENT became contentious quickly.

  Susan Sommer from Lambda went first for our side. Marriage, she told the court, is a “well-settled, long-recognized fundamental right”:

  The decision whether and whom to marry is among life’s most momentous decisions: to enter into one of life’s most intimate, significant, and sustaining relationships with one other person that you love, a relationship that the state supports and sanctions in a myriad of tangible and intangible ways.

  No one disagreed with that assertion, although Judge Robert Smith immediately interjected to ask whether that fundamental right to marriage was meant to include gay people. Susan parried that exchange deftly enough, but she soon found herself stuck in the mud on the polygamy issue.

  SUSAN SOMMER: [N]othing in this case will decide one way or another whether a claim to polygamy is one that establishes a fundamental right and has to be . . .

  JUDGE ROBERT SMITH: So . . . does that imply that a claim to polygamy would be open if we decide in this case?

  SOMMER: No, it implies, actually, the contrary: that it would not change the status of a claim to polygamy . . .

  JUDGE SMITH: What is that status, in your view, today?

  SOMMER: Well, there is actually a nineteenth-century Supreme Court precedent that upheld [bans on] polygamy. But it’s not an issue that has visited the courts . . .

  Oy, I thought, as I sat at the plaintiffs’ table. This was really not the direction we wanted to be going in. Dwelling on polygamy meant missing opportunities to make our own points; it meant we were playing defense, instead of offense. But Susan could not seem to get Judge Smith off the subject, so the polygamy discussion went on for several excruciating minutes before she wound her way back to fundamental rights. And then Judge Smith suddenly switched tacks, asking pointed questions about the role of procreation and children in marriage.

  You make the point that no other state [besides marriage] gives lots and lots and lots of benefits to married people that it doesn’t give to single people. Isn’t the justification for that, in very large part, to preserve the proper—to preserve what the legislature could deem the right environment for the begetting and raising of children?

  Judge Smith was tipping his hand as to how he would vote, and it definitely was not our way. We would somehow have to sway one of the other judges, and we would have to put up the argument of our lives to do it. Susan finished her time, and then it was my turn.

  As quickly as I could, I got into my “New York is different” argument. I told the judges flatly that if they followed their own precedents in cases like the Onofre sodomy case, then they would have to conclude that gay couples had a constitutional right to marry in New York. Judge Smith jumped in again, bringing the discussion back to the question of children.

  “Could a legislature rationally conclude that on the whole it’s preferable for our children to have a mother and a father, rather than two mothers or two fathers?” he asked. I responded by explaining that the scientific evidence—as presented in briefs and statements from the American Pediatric Association, the American Psychiatric Association, and others—showed that there was absolutely no difference for the well-being of children if their parents were straight or their parents happened to be gay. Judge Smith pounced, asking, “[I]s it that there’s absolutely no difference, or no difference has been proven?”

  Almost as soon as he had raised his question, I realized we had a problem. I could only respond with what had been filed in amicus briefs—essentially, summary statements about what various studies had shown. But I now understood that this was not enough. We should have entered our own experts into evidence to build more of a factual record and make this point airtight. As an experienced trial lawyer, Judge Smith knew that we had not done our homework, and he wasted no time trying to pick a hole in our argument. I doubt we could have won his vote in any case, but I was keenly aware that our mistake might hurt us with the other judges.

  Susan Sommer had been hit with the polygamy question, and now it was my turn to face another prevailing antigay argument. Following up on the question of children, Judge Victoria Graffeo asked:

  There are children raised in other kinds of family constructs. You could have siblings, two sisters who are raising the children of one of the sisters and the legislature hasn’
t afforded those individuals all the same rights as a married couple . . . [w]as the legislature denying them due process or equal protection in denying the benefits of marriage as well?

  In other words, she asked me the siblings question. This was in the grand tradition of what lawyers like to call slippery-slope arguments: if we permit gay marriage, what is there to stop brothers and sisters from demanding the right to marry? I did not want to get sidetracked, but I had to respond, so I said:

  [That’s] a good question. Let me try to answer it. First of all, on due process . . . there would be no fundamental due process right there, because I don’t think anyone can really believe that a relationship between two sisters raising children is anything like the relationship between the appellants, the same-sex couples here. So it’s just fundamentally different.

  But Judge Graffeo needed clarification. What made it different? The fact that there was a sexual component? Now I was starting to get exasperated. I did my best to maintain my composure, explaining:

  Exactly. The relationship of having someone in your life choose what’s going to happen when you’re on an operating room table . . . How you will be buried. How you want to spend your finances. Whether you want to buy a house together. What choices you want to make about your children. Physical intimacy. All those things, I agree that sisters sometimes share [some of] those. But I think we can agree that for the most part the nature of that relationship is fundamentally different.

  I could not believe that in 2006 we still had to answer questions like this. Opposite-sex marriage had always been legal, but so far it had not led to a rash of brothers wanting to marry their sisters and sisters their brothers. So why should marriage equality for gay people lead to two sisters or two brothers wanting to marry? The very premise was absurd.

  Every chance I had, I just kept hammering away at the same points: New York is different. This court is different. New York should not follow the precedents of other states; it should lead. “This is a state that has a proud and distinctive tradition of interpreting its state constitution in matters of import to New Yorkers in ways that are different,” I told the judges. Be brave! Do the right thing!