By now, it was clear that the DOMA fight would go all the way to the Supreme Court—and that the justices would choose one of these four cases to hear. The Supreme Court would want a case that already had a circuit court decision, so timing was now more crucial than ever. We needed Judge Jones to make her decision, and make it fast, and then get a quick decision at the circuit court level, if we had any hope of getting to the Supreme Court at all.
Judge Jones, however, still did not feel any pressure to move quickly. On the contrary, she knew this was a historic case, so she continued to take her time. By late May, more than seven months had passed since she had all the filings in hand. Because our “Edie has the sniffles” letters obviously had not worked, there was nothing we could do now but watch with frustration as the other DOMA cases moved forward. On May 31, the First Circuit Court of Appeals released its decision in Gill, ruling unanimously that DOMA was unconstitutional. As the first case to receive its circuit court–level decision, Gill now looked like the front-runner to go before the Supreme Court.
It is important now to note two things. First, nobody deserved to argue a DOMA case at the Supreme Court more than Mary Bonauto, the undisputed architect of the marriage equality movement. Second, a victory over DOMA would be a victory for all of us, no matter whose case went to the Supreme Court. That said, we wanted the justices to choose Windsor, for several reasons.
The most important one was that there was a serious complication with Gill. When that case was filed in March 2009, Elena Kagan was not yet on the Supreme Court. She was then the solicitor general of the United States. In that capacity, she was likely involved in discussions concerning the many meetings in which gay rights advocates (such as James Esseks) were trying to persuade the DOJ not to defend DOMA. This was a big red flag: how could Justice Kagan sit in judgment on a case in which she’d been involved? In fact, Justice Kagan had made it clear during her Senate confirmation hearings for the Supreme Court in the summer of 2010 that she took her recusal obligations seriously, telling Senator Patrick Leahy, “I would recuse myself in any case in which I had played any kind of substantial role in the process.”
The last thing we needed was an eight-justice court, bereft of Justice Kagan’s vote. In fact, Gill and Golinski both had been filed while Justice Kagan was the solicitor general, meaning both were at risk of having her recuse herself. But because we filed Windsor in November 2010, after Justice Kagan was already on the Court, our case did not have that problem. (We now know that these concerns were well taken. When the final orders were issued in all four DOMA cases in the summer of 2013, Justice Kagan recused herself from both Gill and Golinski.)
I also wanted the justices to choose Windsor because I believed Edie’s story would go beyond the legal arguments to touch people’s hearts. And let’s be honest: I wanted the chance to represent a client before the Supreme Court. Who wouldn’t? I relished the thought of arguing an important historical case on such a grand stage.
The truth is, I have never shied away from a stage, even as a kid. One of Jacob’s favorite stories about me involves a formative incident at the Red Raider Day Camp, where I spent my summers as a kid in Ohio. One morning, when I was about seven, I went out with my fellow campers to pick blackberries. When it seemed like all the good ones had been picked, I became greedy. Charging deeper into the brush in search of some magical cache of berries, I stepped on a hive of yellow jackets. An angry swarm surged toward me, and before the counselors could rescue me, I was covered with stinging red welts. My hands were so swollen that I could not move my fingers.
Because I was so badly stung, there was talk that I should be sent home early. But in the 1970s, there were different standards of child safety, and the counselors probably did not want my parents to see me like that, so they came up with a plan. “If you stay until the end of the day,” they told me, “we’ll make you Camper of the Day.” Camper of the Day! This meant I would get to go up onto a little stage in front of the whole camp to receive the award. So, like the hyper-ambitious little second grader I was, I agreed. The comforts of home and immediate medical attention meant far less to me than winning that award.
Jacob loves when I tell him this story, and although it’s funny, it reveals something about me that is still true. I love to win, whether it’s corporate litigation, a pro bono case, or a game of Scrabble. At this moment, I wanted more than anything to have the chance to win Edie’s case in front of the Supreme Court. And because I had the loving support of Rachel and Jacob, I knew that I could win. (My mother has repeatedly pointed out to me during the course of our daily phone calls that, had I not met and married Rachel, I never would have been involved in this issue, much less had the courage to bring Edie’s case.) But the longer it took Judge Jones to make her decision, the more it looked like we would not have that opportunity.
Then, as if spurred by the First Circuit making their decision, Judge Jones suddenly released her decision. On June 6, 2012, she issued a concise, clear opinion with not a single extra word or phrase concluding that DOMA was unconstitutional, even under rational basis scrutiny. In response to BLAG’s primary argument that it was okay for section 3 of DOMA to discriminate against married gay couples because of an interest in promoting “uniformity,” Judge Jones had this to say:
[I]t bears mention that this notion of “consistency,” as BLAG presents it, is misleading. Historically the states—not the federal government—have defined “marriage” . . . The federal government neither sponsored nor promoted that uniformity . . .
Yet even if Congress had developed a newfound interest in promoting or maintaining consistency in the marital benefits that the federal government provides, DOMA is not a legitimate method for doing so.
Judge Jones has acknowledged that the First Circuit ruling played a part in her thinking. “When the First Circuit came out with the state’s rationale for deciding that DOMA was unconstitutional, we took great advantage of that. It was a rationale that we knew we were going to rely on,” she said. She added, “I couldn’t imagine a better plaintiff [than Edie], and it was a story Robbie told very effectively in the papers . . . [I]t’s always important to present your plaintiff in a way where, when you put the papers down you think, ‘That person should win this case.’ ”
Now we just had to get things rolling in the Second Circuit Court of Appeals. The day Judge Jones’s ruling was handed down, we began pressing BLAG to file its appeal. I scheduled a call with the BLAG lawyers, and following some discussion they agreed to file their notice of appeal just two days after the decision. We then filed a motion with the Second Circuit, proposing what James Esseks called “the most aggressive briefing schedule I had ever seen.”
BLAG was not happy. Although they had agreed to the idea of an expedited schedule, this was what one of their lawyers called “warp speed.” BLAG quickly filed a motion opposing the schedule, calling it “radically expedited” and “patently unreasonable.”
Even some of the attorneys on our side were surprised at how hard we were pushing. “I remember looking at the schedule that Robbie wanted to propose, and I’m thinking, ‘They’re never going to accept that,’ ” James recalls. “And Robbie said, ‘Well, this is what we’re proposing.’ And we didn’t get exactly that, but it was not all that far off in the end.” Ultimately, despite BLAG’s objections, the court agreed to a very aggressive schedule, with oral arguments scheduled for September.
In the meantime, U.S. Solicitor General Donald Verrilli Jr. soon made it clear which of the DOMA cases he preferred that the Supreme Court take. And ours was not one of them.
11
PERFECTLY PLEASED
In Latin, the word certiorari is a present passive infinitive; it means “to be informed.” When the Supreme Court justices grant certiorari, or “cert,” in a case, it means that they have agreed to hear it. Most of the Supreme Court’s docket consists of cases raising legal issues that arise repeatedly, so the Court often has to choose from several cases which
ones to hear. When the legal issue involves the constitutionality of a federal statute, the solicitor general usually steps in to make a recommendation to the justices as to which case the SG thinks they should take.
On July 3, 2012, the solicitor general filed two cert petitions, one recommending that the Supreme Court take the Gill case, and the other recommending Golinski, most likely as a backup if Justice Kagan decided that she had to recuse herself in Gill. I, of course, was not a happy camper about the fact that two other cases had received the solicitor general’s seal of approval, and not ours. What really troubled me, however, was that Golinski, like Windsor, did not yet have a circuit court decision. If the solicitor general was going to take the unusual step of filing a petition for cert before judgment, I didn’t see why he should prefer the Golinski case over Edie’s.
I was irked but also encouraged: if the solicitor general was willing to overlook Golinski’s lack of an appellate decision, then that should not hold us back, either. I decided that we too should file our own petition for cert before judgment.
With this step, however, our legal team would be entering unfamiliar territory. Bringing a case in a trial court or arguing an appeal before a circuit court is one thing, but the Supreme Court is another matter altogether. Like any court, the Supreme Court has its own quirks, rules, and customs that can be very different from those of the lower courts. It even has its own loose collection of a few dozen lawyers who argue a disproportionate number of its cases.
A Reuters report examining Supreme Court cases between 2004 and 2012 noted the enormous influence of this group: In that period of time, 17,000 attorneys filed cert petitions before the Supreme Court. Of those, a small group of sixty-six were six times more likely to get their cases accepted. To quote Muriel Spark’s Miss Jean Brodie, these lawyers are the “crème de la crème,” or “the elite of the elite.” Reuters noted that “although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide.”
While I had great confidence in our case and in our team, my instincts told me that we needed help. For starters, none of us had ever filed a petition for cert before judgment (which is a rarely used procedural mechanism in any event), and we weren’t exactly sure how to go about doing it. We needed to get someone on board quickly who knew the ins and outs of the Supreme Court—a kind of “local counsel” for the high court, ideally a member of the Supreme Court bar. But who? Jaren and I discussed the issue and decided that we did not want a lawyer from another firm, because that could get awkward. We both preferred an academic, ideally one who was gay. That narrowed the field considerably, and we quickly zeroed in on a Stanford law professor by the name of Pamela Karlan.
On paper, Pam was perfect. She specialized in civil rights cases and had worked for the NAACP Legal Defense Fund in the 1980s, where she litigated voting rights cases throughout the South. She had also clerked for Supreme Court Justice Harry Blackmun, who, before he died, publicly gave Pam credit for writing much of the dissent in the infamous Bowers v. Hardwick case, which had upheld a Georgia antigay sodomy law in 1986. At Stanford, Pam was cofounder of the Stanford Supreme Court Litigation Clinic, which typically handles several cases a year before the Supreme Court, and she brought her Stanford law students in to work on these cases. In fact, the Stanford clinic has taken part in more Supreme Court cases than all but a few private law firms.
Pam is the real deal. She is known for her brilliant mind, not to mention her prodigious work ethic, and had been repeatedly mentioned as being on the short list of potential Supreme Court nominees. What impressed me most, though, was a comment that she had made in 2009 about why she would probably never be nominated to the Supreme Court: “Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime.” Here was a woman who, like me, speaks her mind. Pam is a clear-eyed, unafraid, openly gay genius who knew her stuff—exactly the kind of person I wanted on our team.
The solicitor general’s brief came out on July 3. The next day, even though it was the Fourth of July holiday, I decided to go ahead and e-mail Pam. While I am definitely not known for doing anything at a slow pace, in this case, we really had no time to waste.
Reading my rather terse e-mail now, it is a wonder I thought anyone might suddenly throw aside their hot dogs and Fourth of July fireworks to respond.
Professor Karlan:
I am a partner at Paul, Weiss and counsel to Edith Windsor in the estate tax DOMA challenge pending in the Second Circuit. (Decision by SDNY Judge Barbara Jones on rational basis grounds was issued last month.)
I was wondering if you had any time to discuss some issues with us. I very much apologize for e-mailing you on the July 4th holiday; unfortunately, the issues are somewhat time sensitive.
Thanks so much in advance for your time; any help you can provide us will be greatly appreciated.
Best regards,
Robbie Kaplan
Pam read this scintillating e-mail while standing at her kitchen sink in Palo Alto, dressed in biking clothes for her morning ride—which she graciously postponed in order to talk with me on the phone. “Yeah, sure, I’d love to help,” she said. Just like that, we signed on the newest Windsor team member who became our not-so-secret weapon.
MONDAY, AUGUST 6, 2012, was one of those unbearably hot and sticky summer days in Washington, DC. Jaren Janghorbani, Joshua Kaye, James Esseks, and I plunged into the humidity, traveling to the capital for a meeting at the solicitor general’s office as part of our ongoing quest to get Edie’s case heard by the Supreme Court. At Jaren and Julie’s suggestion, I had added Josh, a fabulous lawyer and person, who had recently come back to Paul, Weiss after completing a judicial clerkship.
With Pam Karlan’s help, we had filed our petition for cert before judgment on July 16, but the chances the justices would choose Windsor were still very low. It is very rare for the justices to receive petitions for cert before judgment, and even rarer for them to grant one—in Pam’s estimation, they only hear such a case once every few years at best. And, of course, our position was made weaker by the solicitor general’s filings recommending that the court take Gill or Golinski, but not Windsor. (The likely reason why the solicitor general had chosen Golinski was because the district court in that case had decided the issue on heightened scrutiny grounds—the DOJ’s preferred argument—rather than on a rational basis, as Judge Jones had in our case.) Still, the justices would not be making their decision until the fall, which meant that we had time to try to persuade the solicitor general’s office to change its mind and back Windsor instead. That was what this meeting was all about.
We gathered in a giant conference room at the Department of Justice, and as at any government meeting in DC, there were dozens of lawyers present. The meeting was run by Principal Deputy Solicitor General Sri Srinivasan, a sober-minded son of Indian immigrants who would later be appointed to sit on the DC Circuit and was widely reported to be on President Obama’s short list for the Supreme Court. Sri was the person we needed to persuade, and we wasted no time telling him the compelling facts of Edie’s case.
As everyone knew, of the nine Supreme Court justices, the one whose vote likely mattered the most was Justice Anthony Kennedy. Four justices—John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito—were solidly conservative in outlook and voting records. Four others—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—were considered to be reliably liberal. Justice Kennedy was therefore the deciding fifth vote in most high-profile cases, the justice we needed to convince in order to win.
I strongly believed that of the four pending DOMA cases the justices could choose to hear, Edie’s was likely to resonate the most with Justice Kennedy. After all, Edie and Justice Kennedy were contemporaries in age, and I thought that her stories of FBI interviews and McCarthy-era fears were sure to be familiar to him. An ar
ticle in Time magazine had reported that when Justice Kennedy taught at the McGeorge School of Law in Sacramento in the 1960s, one of his closest friends was a closeted gay man, which meant that he would probably find the facts of Edie’s story compelling. I brought all of this up at our meeting and reiterated the other strong points of our case: the fact that Edie’s tax-bill injury was so straightforward; that she was such an appealing plaintiff; and that there was no chance she and her spouse could split up during the case.
But Sri and the other government attorneys did not seem to be very interested in the facts. They wanted a case that had a circuit court decision, plain and simple. Gill had one, but the possibility of a Kagan recusal loomed over that case. Golinski and Pedersen did not have one, and of course neither did Windsor. And Sri was unmoved by the fact that we had filed a petition for cert before judgment, since the solicitor general had already done that for Golinski, which was then still pending in the Ninth Circuit.
In fact, in one sense, the government’s cert before judgment petition in Golinski had backfired from a procedural standpoint. Once the Ninth Circuit judges became aware of it, they decided to stay the case rather than issue a decision. The government’s chances of persuading the Court to hear Golinski thus actually decreased. At our meeting, Sri assumed that the same thing would happen with Windsor. “How do you know the Second Circuit won’t just stay your case?” he asked me.
“They won’t,” I said. “Believe me, I may not be a Supreme Court practitioner, but I do know my home court in the Second Circuit. Not only are they not going to stay the case, but we are going to get a very fast decision.”
Sri raised his eyebrows. He did not seem to believe a word I had said, but I forged ahead. “I am a New York lawyer,” I told him. “That’s what I do. You guys know the Supreme Court, but I know New York courts. We are going to get a very fast decision from the Second Circuit, you will see.”
Then Comes Marriage Page 17