Then Comes Marriage

by Roberta Kaplan

  While there was a lot of discussion within BLAG about exactly how their defense of DOMA would take shape, I did not care that much about any of that, figuring that these were just technical issues the government would work out. I was more interested in finding out who BLAG would choose as its lawyer to represent them in the case. After several weeks and much speculation, BLAG announced on April 18 that it had chosen Paul Clement, a highly regarded conservative attorney with the King & Spalding law firm, to defend DOMA.

  BLAG’s choice was inspired. Clement was not only a member of the Supreme Court bar, he had also served as the solicitor general for three years under President George W. Bush. He had a reputation as an extremely gifted appellate lawyer. One of the attorneys on our team, Jaren Janghorbani, had watched Clement argue in front of the Supreme Court during her clerkship there, and in her opinion he was “one of, if not the very best” oral advocates she had ever seen. Right now, Windsor was just a district court case, so bringing in a lawyer of Clement’s caliber was a bit like hiring Itzhak Perlman to play the fiddle at your kid’s bar mitzvah.

  My Paul, Weiss colleague Neil Kelly fondly remembers that on the day we learned that BLAG had retained Paul Clement, Neil and I, never ones to let moss grow on trees, called Clement’s office at King & Spalding. His assistant answered the phone and, taking a message for him, asked me to spell my last name. According to Neil, I spelled out “K-A-P-L-A-N” for her and then, muting the telephone, looked over to Neil and said, “I am the Jewish lesbian from New York City who’s going to win this case.”

  If—and this was a very big if at that point—our case actually made it all the way to the Supreme Court, Clement would be an intimidating opponent. For the moment, however, we were at the trial court, and I felt I had the advantage there. Clement was not really a trial lawyer, but I was. And the Southern District of New York and the Second Circuit were my home courts. For now, I felt confident moving forward, and what happened next gave me even more confidence.

  Just one week after Clement took on DOMA’s defense, King & Spalding filed a motion that they had changed their mind and would not, in fact, be defending DOMA in court. The firm’s chairman, Robert Hays Jr., said in a brief statement that the “process used for vetting this engagement was inadequate.” Given this formal language, I had the sense that no one at the firm had anticipated the huge backlash that occurred when the fact that they were defending DOMA became public. From the moment BLAG announced its choice, King & Spalding came under heavy fire from LGBT rights groups, including HRC, which was the most prominent and vocal critic. It apparently contacted many of the firm’s clients—including some Fortune 100 companies—to let them know the firm was taking the antigay side in such an important case.

  This backlash left King & Spalding in a terrible position. It did not look good for them to defend an antigay law, but it also did not look good for them to abandon a client once they had taken it on. A few hours after the firm’s announcement, the situation got even messier when Paul Clement made an announcement of his own, stating that he was leaving King & Spalding for another firm and would in fact continue to defend DOMA. He publicly released a copy of his impassioned resignation letter, which read, in part:

  I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.

  Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high . . . I recognized from the outset that [DOMA] implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it.

  Clement obviously wanted his decision to be viewed as taking the ethical high road. But if honor requires completing one’s representation of a client in the face of public criticism, this leaves open the question whether to take on a particular client in the first place. Since I am 100 percent confident that Clement has zero issues with treating gay people fairly, why did he want to take on this case?

  I believe the answer to this question lies, at least in part, in the surprisingly dramatic difference in cultural and legal views of LGBT rights between 2011 and today. At the time that Paul Clement took on DOMA’s defense, only five states permitted same-sex marriage. As I write this in 2015, thirty-seven states, covering approximately 72 percent of the U.S. population, allow it today—and there is an excellent chance that by the time this book comes out, the Supreme Court will have ruled that all fifty states must permit it. We have seen a true sea change in attitudes, a shift so fast and complete that it took most Americans (myself included) by complete surprise. When Clement agreed to defend DOMA, it is very likely that he believed the battle over same-sex marriage could still swing either way. After all, in 2011, you could be opposed to marriage equality and still be considered a moderate. Clement was often mentioned as a potential candidate for the Supreme Court, so naturally he (like most lawyers) would welcome the chance to argue such a high-profile case.

  Yet even at that time, there were signs that a major shift in public opinion was under way. In December 2010, largely due to the efforts of the Department of Defense’s counsel, my friend and former Paul, Weiss partner Jeh Johnson, as well as those of my high school prom date, Aaron Belkin, the U.S. Congress repealed the military’s Don’t Ask, Don’t Tell policy—meaning that in 2011, openly gay people would finally be allowed to serve in the U.S. military. Jeh and I had worked together on the Tokyo case back in the 1990s, and he and I have been close ever since. He’s an amazing lawyer, but more than that, he is a great public servant; he is now serving as the Secretary of Homeland Security. With respect to Don’t Ask, Don’t Tell, Jeh led a national listening tour within the Armed Forces, going to military bases all over the country to ask service people their thoughts, and as a result wrote the report recommending repeal of the legislation. Jeh is truly an unsung hero of the gay rights movement. But now that Don’t Ask, Don’t Tell was finally dead and gone, how could we allow gay people to fight and die for our country but not allow them to marry the people they loved? Very soon, Americans would start to see the absurdity of that disconnect. In fact, in May of that same year—just one month after King & Spalding withdrew from the DOMA defense—a Gallup poll showed that for the first time, a majority of Americans supported marriage equality.

  With any luck, Clement and his team’s job would only become more challenging as time went by. And the BLAG lawyers made it more difficult for themselves by virtue of a few missteps early in the case.

  DURING A CONFERENCE call between our team and the BLAG team on May 5, one of their lawyers asked us for documentation regarding Edie’s first marriage. Really? I thought. This is how you plan to defend DOMA? Apparently, they believed that the fact that Edie had once briefly been married to a man showed that being gay was a choice. I knew, however, that the details of Edie’s first marriage were actually a very powerful argument for our side. In fact, I was so thrilled that BLAG wanted to get into this issue that I actually did my own version of the Saturday Night Live Church Lady’s Superior Dance with my colleagues in my office, as soon as the call ended.

  We asked Edie to tell us the whole story, which we later recounted in a supplemental affidavit to the court.

  Before I met Thea, shortly after I graduated from Temple University in 1950, I married a man in Philadelphia.

  He was my older brother’s best friend, whom I had long looked up to and respected. He and my brother were friends throughout high school and “hung out” together at our house. They both served as soldiers in World War II—my brother in the Air Force, and his friend in the Army in Europe. The friend often visited my family when he was on leave during the war. Du
ring all those years, I had a bit of a crush on him; and he thought of and treated me as a “kid sister.”

  When the war ended, he and I started college together. By that time, I had matured into a woman, and he had noticed. He began asking me out on dates, and I accepted his offers. Although I had had the feeling that I was attracted to women, and not men, since I was a young girl, I never considered the possibility of consummating those feelings with anyone, and I did not want to. In the context of the homophobia that was so prevalent in the 1950s, I certainly did not want to be a “queer.” Instead, I wanted to live a “normal” life.

  I cared very much for him, and I was able to convince myself that I could have a life together with him. He was exactly what most girls wanted in a man. He was big, handsome and strong, yet sweet. I think that if I had been straight, he would have been the love of my life. We went to all the dances together and did the things that couples did back then, which did not include physical intimacy prior to marriage.

  During our third year of college, he asked me to marry him, and I accepted.

  Soon after the engagement, I met and developed, for the first time in my life, strong romantic feelings for another person, a female classmate of mine at Temple University. I fell deeply in love with her.

  I did not know what to do next, but I had such terribly strong feelings for this woman that I decided I needed to break off my engagement. I told my fiancé that I was not ready to get married. Inside, however, I knew that I needed to figure how to deal with my love for this woman.

  Of course, times were very different then—people did not even talk about being gay or the possibility of having a life with someone of the same sex. I associated my same-sex attractions with shame, and I did not want to be “queer.” In fact, people tried to reassure me that I was not destined to be “queer.” I therefore tried to stick it out with my fiancé.

  Although I would get jealous when I saw two women together on the street on a Saturday night, what I thought I really wanted was to be like my older sister—to have a husband, children and lead a “normal” life. Because of the intense social pressure and homophobia, even the woman I fell in love with in college was not interested in staying together in a relationship with me.

  Meanwhile, this man persisted and kept asking me out. I loved him and so did my whole family; everyone thought we made a great pair. My time with him was wonderful in many ways, although not romantically, as I soon discovered after we were married in May 1951.

  After the wedding, it did not take long for me to realize that I could not fulfill any of his or my own expectations for the relationship. I couldn’t love him the way a wife should love her husband, and, after a few months, I told him so. I also explained that I was yearning for women and that I needed something else in my life. I explained to him that he deserved much better, and that I wanted him to have someone in his life for whom he was the most desirable person imaginable.

  And so, with a heavy heart, I moved back in with my mother. My husband and I soon divorced on March 3, 1952.

  Edie Windsor had every reason in the world of the early 1950s to want to be straight and married: societal pressure, family expectations, the commitment of a good man whom she adored. But she simply could not do it. As Edie recounted in her interview with Nina Totenberg of NPR, “I told him the truth. I said, ‘Honey, you deserve a lot more. You deserve somebody who thinks you’re the best because you are. And I need something else.’ ” As Edie told me this story, I remembered my own feelings while in college, when I had been so desperate not to be gay that I thought, Maybe I should just marry a man and make do. But like Edie, I knew in the end that I just could not do that to another person. It would be not only dishonest, but cruel.

  If BLAG thought that Edie’s first marriage and divorce proved gay people could choose their sexual orientation, I was more than happy to help them make that blunder. As a matter of fact, Edie’s first marriage proved exactly the opposite—that she had no choice about being gay. We entered Edie’s marriage and divorce certificates from Philadelphia into the record, and I felt encouraged that BLAG seemed to be off the mark in its preparation for the case—an impression that only grew as we moved deeper into the discovery phase.

  BY THE TIME Paul Clement came on board, five long months had passed since we had filed Edie’s suit, and virtually nothing had happened; despite my “Edie has the sniffles” letters, we had made no progress in actually moving the case forward. Between the DOJ’s two thirty-day extensions, the appointment of BLAG, and the kerfuffle between Clement and King & Spalding, we had faced delay upon delay, none of which were the result of anything we had set in motion, so I was even more desperate to get the process moving. We set up a conference in early May with the BLAG lawyers and Magistrate Judge James Francis, who was handling scheduling and other pretrial matters on behalf of Judge Jones, to discuss the schedule. I was a woman on a mission.

  Normally, the process in a case like this is both rigidly defined and predictable. Typically, the first thing that happens after a complaint is filed is that the defendant files a motion to dismiss the case on the ground that the plaintiff has failed to plead valid causes of action. The plaintiff then files a brief opposing dismissal. Then, assuming the court denies the motion to dismiss, both sides engage in discovery, which involves producing documents, taking depositions, and compiling the affidavits and briefs that will explain the facts of the case for the judge. At the close of discovery, either or both sides can file a motion for summary judgment based on the evidence marshalled during discovery, which the judge may or may not grant. As a result, both sides already knew how this case would unfold, but I hoped that in this conference, we could at least urge the magistrate judge to help it unfold as quickly as possible.

  “We’re ready to go,” I told Judge Francis. “If BLAG files their motion to dismiss according to schedule, we can both oppose it and at the same time file our own motion for summary judgment immediately after that.” In other (nonlegal jargon) words, Let’s get this show on the road!

  You could practically hear the tires screeching to a halt as the BLAG attorney told the judge, “We’re not ready.” I believe I actually let out a groan. The defense did not care how long this process took—and why should they? In court cases, delay is often the rule, not the exception, particularly for defendants, so this was just business as usual. BLAG wanted more time, and we could not file our motion until they had filed theirs, so we were stuck; there was literally nothing we could do to speed up the process. Unless we just threw the process out the window altogether.

  “Fine,” I said. “If you guys aren’t ready to file your motion to dismiss, then we’ll file our motion for summary judgment first. We all know what the arguments are, so what difference does it make which order we go in? Let’s just do it this way—it will save time.”

  The BLAG lawyers looked stunned, as if I had suggested performing the final crypt scene in a production of Romeo and Juliet before the balcony scene. In the buttoned-up world of judicial process, a move like this was beyond unorthodox—it was extraordinary. But at this point, I cared far more about timing than about process. I did not know if switching the order of filings had ever been done before, but why not try it?

  James Esseks was stunned, too, saying later that the move put everything “kind of ass-backwards.” But fortunately, Judge Francis liked my idea. He actually seemed irritated that BLAG had asked to delay the case again, so he went a step further and set up an expedited schedule: we would exchange written discovery requests by June 3, and the discovery process had to be finished by July 11. This gave BLAG’s attorneys only a couple of weeks to depose our experts, which they were not happy about. Despite their protests, Judge Francis held firm. I was ecstatic. At long last, we might actually be able to get this case moving. We left the conference ready to plunge into discovery.

  Doing discovery in a civil case is a bit like undertaking an archaeological dig. It can be slow and tedious work, akin to sifting
through mountains of dirt (or in today’s world, gigabytes of data) to find valuable pottery shards. But doing discovery well is often the key to winning cases.

  I had learned an important lesson from our mistakes in the 2006 New York marriage case, when we had failed to submit experts on our side to bolster our arguments. This time, we made sure to compile affidavits that covered all the bases. They included affidavits from UCLA psychology professor Letitia Anne Peplau, pointing out that sexual orientation exists and is stable over time; Yale history professor George Chauncey, demonstrating that gay people have been subjected to discrimination; and Cambridge child psychology professor Michael Lamb, concluding that children raised by same-sex parents do just as well as children raised by opposite-sex parents.

  We also submitted affidavits from Harvard history professor Nancy Cott, explaining that marriage has changed dramatically over time and has always been the purview of the states, rather than the federal government; and from Stanford political science professor Gary Segura, demonstrating that gay people as a group do not possess a meaningful amount of political power. By contrast, BLAG decided against using any of their own expert witnesses at all.

  Our expert affidavits would serve to strengthen our argument to Judge Jones by establishing a firm factual record upon which we had built the case. We worked closely with the experts to compile their affidavits, after which BLAG would have a chance to question our experts at depositions, in hopes of finding cracks in their arguments. Unfortunately for their side—but luckily for us—Paul Clement did not do the depositions himself. Instead, he sent a brand-new attorney from his firm to take the depositions of our expert witnesses.

  During the depositions, this young BLAG lawyer seemed nervous and ill-prepared. Granted, he was facing a difficult task, trying to poke holes in the arguments of academics who were among the foremost experts in their fields. Often he seemed to be throwing whatever he could at the wall in the hope that something might stick. With Harvard professor Nancy Cott, our expert on the role of the states in marriage, for example, he veered into polygamy during the nineteenth-century in the Utah Territory, the marriages of freed slaves during Reconstruction, and the regulation of Native American affairs by the federal government. Cott calmly refuted all his points, and he then tried out a few more tropes about the supposed slippery slope of polygamy before giving up. If anything, Cott’s position was stronger after her deposition than before it.