Then Comes Marriage

by Roberta Kaplan

  I believed and hoped that I was right, because that was our only chance. Three weeks after our meeting in DC, the solicitor general filed another brief, once again advising the Supreme Court in no uncertain terms to take either Gill or Golinski, with the Windsor and Pedersen cases pretty much an afterthought, to be considered only in the unlikely event that the Supreme Court rejected the other two.

  Our poor position in the four-way race to the Supreme Court was not only disheartening, it was threatening to hurt our chances before the Second Circuit. I found this out in August, when I contacted George Washington University law professor Alan Morrison, who had come up with an ingenious new argument as to why DOMA should be struck down.

  Alan’s daughter, Nina, is a lesbian and a good friend of ours, as well as a highly regarded criminal defense attorney, so Alan had been interested in the DOMA challenges from the very beginning. He had called Mary Bonauto soon after she filed Gill in 2009, offering to help out in any way he could.

  As Alan plunged deeper into the issues surrounding DOMA, he came to a profound realization. “I had an insight,” he says, “that DOMA was not only mean-spirited and vicious, but it had other negative consequences, too: it meant that all the federal laws and rules about ethics simply didn’t apply to same-sex couples.” In other words, if a married lesbian was working for the federal government, DOMA ensured that her wife wouldn’t be subject to any of the disclosure laws, recusal rules, or conflict of interest regulations with which married federal employees normally must comply. This was not only nonsensical, it was contrary to sound public policy and even national security.

  “I realized that this was important, because it showed how irrational DOMA was,” Alan says. “No rational person could have meant to do that.” Alan asked Mary if he could write an amicus brief about this for Gill, and she readily agreed.

  Shortly after that brief was filed, Alan came to a second realization. “The same thing was true about bankruptcy and tax,” he says. “There were huge loopholes in the tax laws, for example, that allowed same-sex couples to engage in tax avoidance in ways that opposite-sex couples couldn’t.” In other words, DOMA made it possible for same-sex couples to flout all kinds of laws, an unintended, and heretofore mostly unnoticed, consequence. Alan added these arguments to his brief and filed it in the Ninth Circuit in support of Golinski.

  When I read Alan’s briefs, I was struck by how powerfully they articulated a completely different anti-DOMA argument—one that might appeal to more conservative judges. I e-mailed Alan right away to ask if he would file a brief in the Second Circuit for us, too. He told me he was very busy and suggested I just cite his existing briefs, so he would not have to write a new brief for us. The reason he was begging off was apparent: he didn’t think Windsor had a chance of making it to the Supreme Court.

  Stubborn as always, I decided to call Alan and give him the same pitch that I had delivered to Sri. “Listen,” I said, “this case is moving fast. We’re going to get a decision soon, and we really need your brief.” Thankfully, Alan said yes, and his was one of the seventeen amicus briefs filed on behalf of Windsor in the Second Circuit. We also had briefs filed by 145 members of the House of Representatives; the American Psychological and the American Psychiatric Associations; the Partnership for New York City; the states of New York, Connecticut, and Vermont; the city of New York, and others—all pulled together with lightning speed, in time for filing before the September oral argument.

  I was worried about the oral argument in the Second Circuit because we already had two strikes against us. The first was that the three-judge panel that would hear our case included two conservatives: Chief Judge Dennis Jacobs and Judge Chester Straub. We knew Judge Straub was unlikely to vote our way, and I suspected that Chief Judge Jacobs might not, either. Judge Jacobs was a frequent speaker at Federalist Society functions who had never, to my knowledge, decided that a federal statute was unconstitutional outside of the criminal context. Jaren, who had clerked for Chief Judge Jacobs, did believe we would get his vote, although she admitted that this was more of a gut feeling than anything supported by his record.

  The second strike was that the oral argument was scheduled for September 27, the day after Yom Kippur.

  For those unfamiliar with Jewish holidays, Yom Kippur is the Day of Atonement, considered to be one of the holiest days of the Jewish year. It is a day of repentance, and most Jews—even those who are not particularly religious—spend twenty-four hours fasting and reflecting on their sins of the past year. Thus, from sundown on September 25 to sundown on September 26, I would be observing Yom Kippur, which meant no work, no studying, no eating. This was not, obviously, the best way to prepare for an oral argument, but I am far too religious (and superstitious) to mess around with God.

  As a child in Cleveland, I had been told countless times the story of the Los Angeles Dodgers pitcher Sandy Koufax, who sat out the first game of the 1965 World Series because it fell on Yom Kippur. Legions of baseball fans were aghast that one of the best pitchers in the league would choose to miss a World Series start, but for American Jews of my parents’ generation, Koufax’s decision was nothing short of heroic. When I learned that our oral argument would fall on the day after Yom Kippur, the first thing I thought of was Sandy Koufax, and the second was to begin drafting a request for the court to change the date. That request was denied, so instead of spending the day before the oral argument reading, practicing, and otherwise preparing, I did the next best thing: Rachel and I took Edie to Yom Kippur services.

  We went to Congregation Beit Simchat Torah, the LGBT synagogue where Rachel and I had first met thirteen years earlier. On High Holy Days, so many people want to come to services there that the congregation meets at the giant Jacob K. Javits Convention Center on Eleventh Avenue. There must have been five thousand people at services that day, and we spent hours there, praying and reflecting. Although she is Jewish, Edie does not know a lot of the religious rituals and customs, so I helped her read the Hebrew prayers and follow along. Then she and I were invited to open the Ark.

  In a synagogue, the Ark is a large cabinet where the Torah, the sacred scrolls considered by most religious Jews to be either inspired by or the actual words of God, are kept. At certain points in Jewish services, the Ark is opened for the Torah scrolls to be placed for reading, walked around the congregation, or simply so that the entire congregation can see the scrolls during important prayers. These are moments of great holiness, and being invited to open the Ark is considered to be a great honor. Edie whispered to me, “How do I do this?” I whispered back, “Don’t worry. Just follow me.” The two of us walked up to the Ark and opened the doors together, a moment I would not have traded for any extra time preparing an oral argument.

  THE NEXT MORNING, September 27, Edie and I walked with our team into the Thurgood Marshall Courthouse in Lower Manhattan for the oral argument. And as soon as it began, everything I had anticipated about how the argument would go went right out the window.

  Paul Clement argued first for BLAG, and I split the Windsor argument with Stuart Delery, one of the highest-ranking gay officials at the DOJ. Unlike Supreme Court arguments, where the attorneys are given little time and the justices pepper them incessantly with questions, each side received a leisurely forty-five minutes. This was the first time I had met Paul Clement in person. I walked over to introduce myself and I remember noticing that all he had in front of him was a single piece of paper in a manila folder, which he presumably intended to use as the outline for his argument. Wow. That was impressive. What surprised me, however, as Clement’s argument unfolded, was that Chief Judge Jacobs seemed eager to focus on whether DOMA should be considered under rational basis or heightened scrutiny.

  As I sat listening at the counsels’ table, I began wondering: Was it possible that Chief Judge Jacobs was actually considering whether to rule on heightened scrutiny? No federal court had ever done that in a gay rights case, so this was an exciting—and unexpected—deve
lopment. We could win our case either way, but we were pretty much guaranteed to win if the panel decided to apply heightened scrutiny to DOMA.

  When it was my turn to step to the podium, I was prepared to take any opportunity I could to urge the panel in that direction. But first, I wanted to open by sending a specific message to Chief Judge Jacobs. After all, he was the judge who, in an earlier talk at the Federalist Society, had criticized lawyers who “use public interest litigation to promote their own agendas, social and political.” He obviously did not approve of cases brought solely to advance social causes, so I wanted to make clear that he understood that this was not that type of case.

  Good morning. This case presents a single question, is Section 3 of the Defense of Marriage Act, or DOMA, unconstitutional as applied to Edith Windsor, an eighty-three-year-old lesbian widow who had to pay a $363,000 estate tax bill and wants her money back. Judge Jones held that it was.

  This case was about Edie Windsor and an unfair tax burden, no more, no less. I went on to argue that “this case is not about the federal right to marry. It is about circumstances where states define marriage, and where DOMA explicitly said we are going to leave that to the states.” In dividing up our oral argument time, we had decided that Stuart, arguing for the United States, would address the heightened scrutiny question, but I did manage to make a few salient points when Judge Christopher Droney asked me which level of heightened scrutiny (strict or intermediate) applied here.

  [W]e believe that being gay or lesbian is closer to being an African American than it is to being—I hate to get so personal about this, than being a woman, because there is nothing about being gay or lesbian that has anything to do with an individual’s ability to perform in society and that’s essentially what I believe the courts are looking at . . .

  When the oral arguments were over, I felt pretty confident that we would win—and now there was even a sliver of hope that we might win on heightened scrutiny. If that happened, it would likely propel our case directly to the Supreme Court. If, that is, the decision came down quickly enough.

  Three weeks later, on Thursday, October 12, I was sitting in my apartment slogging through a tedious task. Each October, Paul, Weiss partners are required to submit a report to all the other partners at the firm describing everything they did in the previous year. Those annual reports are then circulated to each of the other Paul, Weiss partners so that everyone can read them. I’m generally not a procrastinator, but I hate doing this report and always put it off until the last possible minute, so I had stayed home that morning in order to force myself to get it done.

  When my phone rang, I stopped what I was doing to pick it up. It was Colleen McMahon, the former Paul, Weiss partner who had led the Jury Project and introduced me to Chief Judge Judith Kaye all those years ago. Colleen was now a federal district court judge and a close friend.

  “Robbie, what in the hell are you doing at home?” she asked me.

  “I’m writing my report,” I said, confused as to why she was asking.

  “The Second Circuit has ruled,” she shouted. “You won.”

  What? This did not seem possible. After all our weeks and months of rushing, rushing, rushing, I was caught totally off guard by how quickly the Second Circuit had released its decision. Releasing an opinion just three weeks after oral argument was insanely fast, even for New Yorkers.

  To my shock and delight, the court had ruled for Edie on the basis of heightened scrutiny, the first federal circuit court decision ever to explicitly apply that standard to a law that discriminates against gay people. As Jaren would later put it, “No judge, much less no conservative judge, had ever said heightened scrutiny should apply to sexual orientation. And here was this older, white male conservative judge doing it. He just said, ‘Of course this applies.’ And he was right.”

  As I raced through Chief Judge Jacobs’s opinion, I was stunned at its eloquence and how persuasively it advanced the arguments for our side. The court’s opinion declared it “easy to conclude that homosexuals have suffered a history of discrimination.” That history was unconnected to gay people’s worth, for while there are “some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society, at least in some respect,” being gay “is not one of them.” The court’s opinion also recognized that “there is nothing amorphous, capricious, or tentative” about being gay, thereby rejecting any suggestion that sexual orientation was a choice. And finally, the court answered the question of whether gay people “have the strength to politically protect themselves from wrongful discrimination.” They did not, the court declared; gay people “are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

  Assessed under this heightened standard, DOMA had no chance of surviving. Even the other side had admitted as much, as Judge Jacobs wrote: “At argument, BLAG’s counsel all but conceded that [the] reasons for enacting DOMA may not withstand” heightened scrutiny. This opinion was a resounding affirmation that laws that treated gay people differently simply because they are gay needed to be scrutinized more carefully by the courts.

  Judge Jacobs also demolished the “slutty heterosexuals” argument—the very argument that Judge Robert Smith had employed in 2006, when he wrote the Hernandez opinion denying gay New Yorkers the right to marry. Six years had passed since that decision, enough time for another conservative, Republican-nominated New York judge to deem the argument nonsensical in the context of DOMA:

  DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.” Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

  DOMA is therefore not substantially related to the important government interest of encouraging procreation.

  In a paragraph foreshadowing one of the major arguments that would be made in the marriage equality cases post-Windsor, Chief Judge Jacobs concluded that Baker v. Nelson, a 1971 case in which two gay men in Minnesota sought to marry, that the Supreme Court had dismissed for want of a substantial federal question, did not foreclose Edie’s case: “Even if Baker might have had resonance for Windsor’s case in 1971, it does not today . . . In the forty years after Baker, there have been manifold changes to the Supreme Court’s equal protection jurisprudence.”

  In his concluding point, Jacobs dispatched in a single paragraph the argument that gay people should not have the right to marry out of a respect for either religious beliefs or “tradition.” He even inserted this zinger at the end, referring to St. Paul’s Chapel across the street from the federal courthouse in Manhattan:

  Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

  I did not know whether to laugh, cry, or shout with joy. The opinion was brilliant, even though Chief Judge Jacobs clearly had rushed to draft it. He had included almost nothing about the facts of the case, which was unusual, and the first printed opinion of the case even had different typefaces for the majority opinion and the dissent. The court had raced to get this decision out, and given the DOMA petitions at the Supreme Court, I believed I knew why.

  Now that Windsor had its circuit court decision—and a decision that invoked heightened scrutiny to boot—our case became the front-runner to be heard by the Supreme Court. Gill was the only other case with a circuit court decision, but it was likely that Justice Kagan would have to recuse herself
from hearing it. In an instant, all of our hurrying and fretting and nudging had paid off. Now, if the Supreme Court decided to take a DOMA case, it would most likely be Windsor.

  One week after the decision, Sri Srinivasan called me to discuss the latest DOMA case “rankings.” We had been planning to file a new brief with the solicitor general’s office, but Sri told me that “without being definitive, given our policy, I don’t think you need to be filing anything. We are planning to file a supplemental brief tomorrow.”

  “Great,” I said. “And what will our new ranking be?”

  “I believe you will be perfectly pleased,” Sri replied. He told me that their prior reasons for not preferring Windsor had been “taken care of” by the Second Circuit decision, and we then went on to discuss a few points about the opinion, but the one thing that stuck in my mind after I hung up the phone was that phrase: “perfectly pleased.”

  On October 26, the solicitor general’s office filed its brief recommending that the Supreme Court take Windsor. Our whole team was jubilant, and in the midst of all the high-fiving at the office, I made sure to call Pam Karlan at Stanford. “Did you see the brief?” I said.

  “I’m perfectly pleased!” she said.

  Now we had just one more step to get to the Supreme Court: the justices had to actually agree to hear our case.

  THE SUPREME COURT is a secretive and occasionally mysterious institution. It is difficult, if not impossible, to know what goes on behind closed doors, so at that point all we could do was hope that when the justices met to decide which DOMA case to take, they would choose Edie’s.

  These meetings, called conferences, typically happen a few times a month during the Supreme Court’s term, which runs from October to June. The justices meet in a private room at the Court and discuss the cases up for consideration, and if four justices vote to hear one case, it will be heard. The justices can also decide to combine more than one case on the same issue, lumping them together and letting the attorneys sort out among themselves who should make the oral arguments.