Sometimes it seemed as if the BLAG lawyer was just going through the motions. While questioning Stanford professor Gary Segura, however, he actually went a bit off the rails. Segura was our political science expert, so the BLAG lawyer was trying to elicit a response showing that gay people actually had a significant degree of political power. But the way he did it was somewhat curious, to say the least.
“I have a good friend, who is a celibate, chaste gay man,” the lawyer said. “He believes that gay marriage should be banned. And would his interests be different from the rest of gays and lesbians? How would you analyze that?”
This was an odd question for a deposition (even one in this case), to say the least. While I could not figure out where he was going with this, I saw no reason to prevent Professor Segura from answering the question. “Objection to the form,” I said, and then turning to Professor Segura, “You can answer,” I said. He replied:
I would say [that] [t]here are individuals with lots of different positions on lots of different matters. When I am looking at what a group’s interest is, I would look for the consensus viewpoint among the largest percentage of that population. In this case, I think your friend is very, very out of the mainstream of thinking of others who would self-identify as gay or lesbian.
At this point, I glanced at the BLAG lawyer and saw that his face had flushed deep red. I was not sure where he was going with this, but the exchange seemed to be striking a personal chord. Even though we were on opposing sides, I had no interest in embarrassing him or seeing him sweat, so I jumped in. “At some point I need to take a break,” I said. “Let me know when would be good for you.”
“Now is a good time to take a break,” the young lawyer croaked. I wish I could say that he regained his composure afterward, but unfortunately he never really did. It was one of the odder depositions I had ever experienced.
In defense of that young attorney, it was not easy being on the pro-DOMA side of the table, from either an evidentiary or a strategic standpoint. Even though President Obama had declined to defend the law, the DOJ was still technically a party to the case, so several of their attorneys came to the depositions. They would sit on BLAG’s side of the table, but they always came over to us beforehand to shake hands and say things like, “Sorry about this. Obviously, we’re with you.” During lunch breaks, the DOJ lawyers would often join us, while the BLAG attorneys would sit off by themselves.
At this point, I had enough confidence in our arguments that I was willing to give BLAG whatever they wanted, as long as it kept the process moving. I would say, “Listen, whatever documents you want, just ask us. We’ll give you everything.” To my surprise, the BLAG lawyers did not ask for much. Although they could have asked to depose Edie, they chose not to. They probably believed it would look bad for them to interrogate an eighty-two-year-old widow in hopes of denigrating her forty-four-year-long relationship with the now deceased love of her life—a wise call on their part.
In the nuts and bolts of trial preparation, we were clearly ahead. Meanwhile, outside the conference rooms where our team was building her case, Edie was also starting to gain attention in the battle for public opinion.
OUT MAGAZINE’S JANUARY 2011 profile of Edie was the first in what was to become an avalanche of coverage. That spring, a Boston-based lesbian publication called GO magazine included Edie in its “100 Women We Love” issue, and the ACLU announced that it would award its Roger Baldwin Medal of Liberty to Edie, who would be honored along with Constance McMillen, a young lesbian who had sued her Mississippi school district for barring her from attending the prom with a female date. Writer Jill Hamburg Coplan also contacted us, hoping to do an interview with Edie for an extensive profile in New York University’s alumni magazine.
When I e-mailed Edie to ask if she wanted to do the interview, she responded with weariness. In a June 7 e-mail, she wrote, “I feel overdone and I don’t have a lot to say publicly . . . I just don’t have the energy. Right now, I’m stalling doctor’s appointments until I finish the whole Pride month activities . . . Just too much.”
Edie’s e-mail worried me because she usually relished her public appearances. She loved giving speeches, and she seemed to truly enjoy plunging headlong into crowds, sometimes with an enthusiasm that outstripped her sense of self-preservation. But she was in her eighties now, with the vast catalogue of minor ailments that age brings, not to mention her ongoing heart trouble. I was constantly worried about her health and safety, especially since her activities and profile increased the deeper we got into the case.
One thing I did to alleviate my anxieties in this regard was to begin asking some of the younger associates to serve as Edie’s “body person.” Whenever Edie went anywhere related to the case, whether it was down the street or across the country, someone on our team would accompany her. At first, she did not seem to mind. In fact, she enjoyed being escorted by Paul, Weiss associates. But later, as time went on, Edie began to chafe at being “handled.” She would say, “I’m going to the bathroom,” and then disappear for half an hour. Alexia Koritz called this “giving us the slip,” and Edie became very good at it. “She didn’t like the idea of someone taking care of her, really,” Alexia remembers. “Once, at Georgetown law school, we were getting her lunch and she just took off to see students and talk to them.”
Jaren Janghorbani remembers that one of the perennial battles that everyone fought with Edie was to prevent her from taking the subway. “You’d arrange for the black car, then pick her up, then take her to where you needed her to be, making sure everything was taken care of,” she says. “But Edie never wanted to do any of that. She just wanted to get on the subway. She didn’t want to sit in traffic. She did not want to wait for the car. We all used to joke about it, like, ‘Robbie’s going to kill us if we lose Edie on the subway.’ The last thing we needed to do was get into trouble with Robbie for taking our beautiful old client onto the subway and losing track of her.” Edie was not trying to make life difficult for the associates; she just wanted to do her own thing—even if that thing meant heartburn for whoever was traveling with her.
On the other hand, traveling with Edie gave people on the team a chance to really bond with her. In June, when Edie flew to Orlando to accept the ACLU award, Julie Fink went with her. “This was not a normal Paul, Weiss assignment, to be a fifth-year associate who’s flying to Florida to accompany your client to get an award,” Julie remembers. But although it was an unusual assignment, Julie found herself grateful for the time she spent with Edie.
On the flight down, they did math puzzles together and talked for hours. “It was great to talk with Edie about her relationships, and her and Thea, and how they met,” says Julie. “We just got to know each other very well. It’s not a normal client-lawyer relationship, the relationship we all have with each other—whether it’s Robbie and Edie, or me and Edie, or Jaren, or Alexia, or anyone else. The whole team was more like a family than anything else.”
At the ACLU event, Julie played bodyguard to Edie, who was greeted like a rock star. “Everybody wanted to buy Edie a drink,” Julie recalls. Edie happily obliged, accepting (though not always drinking) the only alcohol she’s not allergic to, vodka, and posing for photographs with everyone who asked. Her fame was growing and her story was getting out, which could only help us. More than ever, I believed that if people came to know Edie well and learned the details of her four decades with Thea, they would come to see DOMA as an unfair, discriminatory, antigay relic. For that reason, I wanted to make sure that every one of our court filings focused on Edie’s personal story as much as possible.
Which is why, around that same time, I gave Julie another unusual assignment. One of the briefs drafted by our side felt too lawyerly to me. “The draft of this brief is terrible. It’s not up to Paul, Weiss standards,” I told Julie. “I want more feeling in it, more emotion. I want a brief that is in keeping with the greatest traditions of this law firm.” She did not say anything, so I said, “Li
sten, you need to ‘Julie this up.’ Go have a drink somewhere, take Jaren with you—get drunk if you have to—but fix this brief.”
Julie took my advice, literally. She called Jaren and invited her to Ted’s Montana Grill, a restaurant across the street from the office. Over beer and pickles, they talked at length about the filing, with Julie finally deciding that “I wanted someone to read this legal document and cry. These women devoted their whole lives to each other. Thea was sick for thirty years, and Edie took care of her. Whatever relationship you, the reader of this brief have, this is the one you’d rather have. And the government has discarded it.”
The next draft of the brief was brilliant, as was so much of the work the team did. On June 24, we filed our five expert affidavits, as well as our motion for summary judgment. I happened to be on a family trip to Israel with Rachel and Jacob, and though I did not mind being away for the filings, I was sorry to miss another big event that happened to take place that very same day.
WE WERE SITTING at a restaurant in the Neve Tzedek (ironically, in Hebrew, “abode of justice”) neighborhood of Tel Aviv, enjoying a meal of Israeli-style Spanish tapas, when my BlackBerry buzzed. I looked at the message and let out a whoop of joy: the New York legislature had just passed the Marriage Equality Act, making it legal for gay New Yorkers to marry. Five years after I had lost the Hernandez case, forcing Edie and Thea—and countless other gay New Yorkers—to travel to Canada to wed, same-sex couples would finally be able to marry in our own home state.
We had known that there was a fierce battle going on behind the scenes in the New York legislature because one of Rachel’s and my closest friends, and one of New York’s top political consultants, Emily Giske, was leading the charge. (My former client Danny O’Donnell, perhaps at least in part because of our defeat at the Court of Appeals in 2006, had over the years become one of the most prominent legislative sponsors of the bill.) Emily had been sending me a series of e-mails that, in her own inimitable style, became terser and terser as time went on. I could always tell how the political situation was changing by the number and volume of e-mails that Emily sent—the fewer and briefer the e-mails, the better the chances of passage. But I do not think that anyone else outside of Albany had any realistic conception that the legislation might actually pass in 2011. Just a year and a half earlier, the state senate had rejected a marriage equality bill by a vote of 38–24—a resounding defeat that we had watched, heartbroken, on closed-circuit TV in a conference room at Paul, Weiss. And in late 2010, when then–Governor David Paterson had floated the idea of trying to pass a marriage equality bill during the legislature’s lame-duck session, he had given up when it was clear the votes simply were not there.
So, while I had every confidence in my friend Emily’s political skills, I had tried not to get my hopes up. The news that New York had just become the sixth state to extend marriage rights to gays and lesbians was incredibly gratifying, and it was also good news for our case.
The fact that we were bringing a DOMA challenge in a state that did not permit marriage between same-sex partners had always been a bit of a wrench in our case. From a technical, legal standpoint it was not an impediment, since New York did officially recognize such marriages when performed in Canada. From a perception standpoint, however, it certainly was not the strongest fact for our case. Now that New York was permitting marriage—and even better, by legislative vote rather than by court order—we were instantly on stronger footing.
Governor Cuomo, who had played a key role in championing marriage equality, signed the legislation into law that very same day, Friday, June 24—the first day of New York City’s Pride weekend. Rachel and I wanted more than anything to be back in New York for the parade that Sunday, but we were not scheduled to leave Tel Aviv until the 28th. We did check out a few earlier flights online, but with the time zone differences and the length of the trip, we simply could not make it back in time. I was very sorry we would miss the parade and the community outpouring of joy, but at least I knew that when we did get back, we would be returning to a changed New York. Edie’s case would be stronger than ever.
Late that night, I received an e-mail from my law partner Andrew Ehrlich, who had worked with me on the 2006 Hernandez case and was the very first colleague I had brought in to help with Edie’s case. “We have come a long way since that terrible morning we got the Hernandez decision,” he wrote. “Thank you for letting me be part of the journey. Congratulations.”
The dominoes appeared to be falling our way—which is perhaps why BLAG, two weeks later, began flailing a bit in their filings, making claims that went beyond unlikely and into the realm of the absurd.
10
PROFESSOR DIAMOND
AND CAPTAIN UNDERPANTS
If Thea had been “Theo”—in other words, if she had been born a man rather than a woman—then Edie, upon being widowed, would not have had to pay a single penny of estate tax on her inheritance. This was a simple fact, true in all fifty states, and it was a pillar of our case. If we could establish this fact to the satisfaction of the court, then we could focus our argument on the fact that DOMA, and DOMA alone, was the reason why Edie was forced to pay those taxes.
In a court case, however, you cannot just say that a statement is a fact. Establishing an undisputed fact for purposes of a case can be a two-step process: first, the plaintiff files “requests for admissions,” laying out the factual groundwork for the case. Then the defense responds by either admitting or denying the truth of each fact asserted, with the goal of eliminating unnecessary argument over elements of the case that everyone can and should be able to agree on. In its response to our filing, which asked BLAG to admit as fact that Edie would not have paid those taxes if Thea had been a man, BLAG asserted that they were “without sufficient knowledge or information to admit or deny whether this hypothetical estate would have been entitled to the marital tax deduction.”
It was a pretty disingenuous answer, and not their only one. When we asked BLAG to admit that “lesbians and gay men have experienced a history of unequal treatment in the United States because of their sexual orientation,” BLAG replied that the statement was “undefined and vague.” In fact, of the twenty-eight requests for admission we filed, BLAG failed to provide any meaningful response to twenty-three of them, stating over and over again that the terms and phrases we used were “undefined,” “vague,” or both.
To a certain extent, this was just lawyers lawyering. Court battles commonly go this way, with no side wanting to cede an inch of territory to the other side. I didn’t mind most of BLAG’s posturing, because I had fully expected them to reject a certain number of our requests as a matter of course. But the two that rankled were their refusal to acknowledge that Edie paid those taxes solely because Thea was a woman, and their insistence that they had no idea what we meant by “discrimination.” We answered with a sharp letter to Magistrate Judge Francis, skewering BLAG for its nonresponses:
[T]here is clearly nothing even remotely vague about terms like “discrimination,” “unequal treatment,” “stereotypes,” “denied jobs,” or “terminated from jobs.” . . . These phrases are not part of some technical or scientific jargon, are common English words, and mean precisely what their plain language indicates. . . .
Moreover, it is simply not plausible that the House of Representatives does not understand what the term “discrimination” means in light of the fact that there are numerous federal statutes directly addressed to prohibiting discrimination (albeit none that would protect gay men and lesbians).
Ten days later, the magistrate judge issued his order: BLAG would not have to respond to most of our requests for admission, because the issues presented were too complex. “Any complete answer to the questions posed here could fill volumes and would not serve to streamline the legislation,” he wrote. Magistrate Judge Francis did, however, order BLAG to admit or deny our central point—namely, that Edie would not have had to pay any estate taxes if Thea had bee
n a man. BLAG ultimately did admit that this was true, an admission that would play a big role later at the Supreme Court. Our case was getting stronger—and then, once again, BLAG made a misstep that we were able to exploit.
One of BLAG’s core arguments in the case was that being gay was a choice rather than immutable. This was the reason they had asked for documentation of Edie’s first marriage—they wanted to show that Edie supposedly had a choice about being a lesbian since she had once been married to a man. In the discovery process, rather than asking experts to file affidavits in support of their argument, BLAG chose instead to cite published articles. One was by a researcher named Lisa Diamond, an associate professor of psychology and gender studies at the University of Utah, who had written a book called Sexual Fluidity: Understanding Women’s Love and Desire.
I had never heard of Lisa Diamond, but when I Googled her, I made several surprising discoveries. First, she had been publishing articles about lesbians and lesbian sexuality for years, not the typical résumé of a person who wants to be part of a DOMA defense. As I scrolled through her list of publications, awards, and grants, I became convinced that she was more likely on our side than BLAG’s. Then I found the holy grail: a 2008 interview in the Salt Lake Tribune where she explained that her research had been misused by an antigay group called NARTH:
Then Comes Marriage Page 15