First, the purpose itself of DOMA was illegitimate. The law, we noted, was passed out of fear or dislike of the unknown: “The very language of its title indicates that DOMA was enacted to defend or ‘guard against’ people who appear to be different.” In constitutional terms, this is called animus, and laws that are infected by such animus are not legally valid.
Second, DOMA had broad impacts that Congress clearly never anticipated. In other words, DOMA targeted gay people and then imposed upon them “disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate governmental interest”:
By amending the Dictionary Act, rather than any specific federal program, DOMA categorically disqualifies gay people who are married from all federal rights, privileges, and obligations of marriage, creating a sweeping exclusion that is disconnected from any specific rational justification . . .
The fact that DOMA is not a discrete or tailored statute, but instead sweeps across over 1,100 federal statutes that confer benefits or impose responsibilities on married people strengthens the conclusion that it fails rationality review.
Third, throughout U.S. history, the states, not the federal government, have always had the right to determine who can marry. The passage of DOMA marked the first time that the federal government chose to ignore the states’ decisions in this area. “Statutes provoke suspicion when they upset the relationship between the federal government and the states in novel or unusual ways,” we wrote. “Sometimes the most telling indication for a severe Constitutional problem will be the lack of historical precedent for Congress’ intervention.”
Each of these three reasons was different, and each of them offered a legitimate reason why DOMA should be subjected to, if not heightened scrutiny, at least more careful consideration by the Court. My hope was that in enumerating them so plainly in the checklist section, we could give the justices who were expected to vote our way plenty of ammunition to sway the others—in particular, of course, Justice Kennedy.
We ended our brief by asserting that the facts of Edie’s case only reinforced the conclusion that DOMA was unconstitutional:
In her complaint, Ms. Windsor challenged the marital deduction generally available to married couples. If Congress had passed a discrete statute simply excluding married couples who are gay from the benefits of the estate tax’s spousal exemption, it would be impossible to discern a rational connection between that exclusion and any of the interests that have been advanced on behalf of DOMA.
For example, even if the federal government has a legitimate interest in encouraging responsible procreation by straight couples, it would be irrational to think that denying gay couples the benefits of the estate tax deduction would do anything to further that interest. Hardly any straight couples—especially straight couples of an age where their relationship still runs a risk of “produc[ing] unplanned and unintended offspring”—would make decisions about “responsible procreation” based on their eligibility for a deduction from an estate tax likely to be levied only decades later and only on a small fraction of the population. And none are likely to be influenced in their immediate procreative or childbearing choices by how that tax is or is not levied on gay people . . .
Finally, while BLAG repeatedly argues that the Court should not “constitutionalize” the issue because “the democratic process is at work,” the question presented here is a narrow one: is there a sufficient federal interest in treating married gay couples differently from all other married couples for all purposes under federal law? There is not. By suggesting that the Court cannot or should not answer this question, BLAG fails to recognize that the protections of the Fifth Amendment are abiding. DOMA is impossible to reconcile with the promise of impartial governance that the Constitution’s guarantee of equal protection extends to all of our Nation’s citizens.
After weeks of migraines, sleepless nights, and endless rewrites, we finally had a brief we were happy with, and on Sunday, February 24—two days before the filing deadline—our whole team gathered in a huge conference room at Paul, Weiss for the final read-through. We had poured our collective blood, sweat, tears, and souls into this document, and this was our last chance to catch typos or any odd-sounding sentences. We decided that the best way to do so was to actually read each and every word of the brief out loud.
That day, Rachel was busy with another project and our plans for child care fell through. So I brought six-year-old Jacob with me to a conference room at Paul, Weiss, handed him an iPad loaded with movies, and placed an oversized pair of earphones on his head. Then, with the whole team seated around a conference table, I asked everyone to read one sentence each, going around the table, as if we were reading from the script of a new play by my friend Terrence McNally. This turned out to be a surprisingly effective way to read through the brief, and it ended up being one of my favorite moments in the whole case.
The brief was seventy-seven pages long, so the process took us a little over three hours. As we were reading, Jacob watched his movies, and every once in a while he would get so excited by something he had seen on the screen that he would want to share his thoughts about the scene with all of us. He quickly settled back down each time, but just as we reached the very end of the brief, Jacob actually leapt off his chair in the middle of one of his favorite Tintin movies and exclaimed, “The problem is, they’re running out of gas!” We all cracked up. It was the perfect note to end on.
We filed our brief on February 26, 2013, and that same day, after reading the final brief, Colleen McMahon sent me a note. “The editing is simply superb,” she wrote. “There’s not an extra word or phrase. It’s as close to flawless as any brief I’ve ever read.”
This was extraordinary praise coming from someone I admired as much as Colleen, not to mention a federal judge, so I forwarded the note to Pam with the comment, “OK, I’m ready to retire.”
Pam replied with her usual dry wit and an always-welcome reference to one of my favorite Broadway musicals: “What a wonderful email,” she wrote. “And did you ever see Sondheim’s Merrily We Roll Along? One of the characters says something like ‘and after you hear this song, you’ll want to swallow poison because there will be nothing left to live for.’ Seriously, like the videos say, ‘Things get better.’ This is a high point, but it won’t be the only one.”
13
TO DE-GAY OR
NOT TO DE-GAY
On the morning of March 4, Pam boarded a flight in California to come to New York City for our first moot court session. She had a connecting flight in Charlotte, North Carolina, and when she turned on her cell phone in the airport there, she saw it lighting up with multiple voice mail messages. As she started listening to them, she realized that they all said essentially the same thing—“I’m so sorry, Pam,” or “Pam, I’m terribly sorry.” The problem was, Pam had no idea what all these people were talking about.
She called me at the office, and when I picked up the phone, I too said, “I’m so sorry.” At this point, completely exasperated, Pam asked, “Why in the world is everyone feeling so sorry for me?”
It turns out that while Pam had been in the air, the Supreme Court had issued an order dividing up the lawyers’ time in the upcoming Windsor oral arguments. For the merits arguments, as the parties had already agreed and proposed to the Court, BLAG would get thirty minutes, and the solicitor general and I would each get fifteen minutes. But for the jurisdictional issues, a Court-appointed Harvard Law School professor named Vicki Jackson would get twenty minutes, BLAG would get fifteen minutes, the solicitor general would get fifteen minutes, but counsel for Edie Windsor would not get any time at all.
The Court had taken the step of appointing Vicki Jackson to argue as amica (or “friend”) for the Court because everyone in the case agreed, albeit for different reasons, that the Court did have jurisdiction to resolve the constitutionality of Section 3 of DOMA. President Obama and the DOJ had taken the position that, while they agreed DOMA w
as unconstitutional, out of a respect for Congress they would not give Edie her money back until the Supreme Court had decided the issue in her favor. Edie, of course, wanted the Supreme Court to decide the case so that she could get her refund check from the IRS. And BLAG took the position that it was the appropriate party to defend DOMA in court and that the decision of the Second Circuit should be reversed. So the Supreme Court appointed Vicki Jackson to be the one lawyer to argue that there was no jurisdiction.
In other words, the Court had decided not to allot any time at all for Pam to argue the issue. In terms of the case, this was probably a good sign, since it seemed unlikely that the Court would find there to be no jurisdiction if they were not going to give Edie any argument time. But it was incredibly disappointing that Pam wouldn’t get to participate in the oral argument.
When she heard the news, Pam was crestfallen. This was a historic case, and she had been excited to have the chance to argue it. Pam had been preparing for weeks and had even invited her eighty-one-year-old aunt, who lived in New York City, to come watch her at the first moot court. But now there was no reason for her aunt to do so because Pam wouldn’t be arguing anyway. “I thought, there goes my moment in the sun,” she remembers with whimsy in her voice.
And then, as a pure coincidence, Pam ran into a group of her friends who also happened to be at the Charlotte airport at that time. They were fellow civil rights lawyers flying home from Selma, Alabama, where they had been taking part in an anniversary commemoration of Martin Luther King’s historic march from Selma to Montgomery. Seeing and talking to her friends not only boosted Pam’s spirits but clarified her perspective. “I thought, I’m a civil rights lawyer,” she said later. “This is a long struggle, and whether I get to argue this case or not is not the biggest deal in the world.” This is classic Pam, always keeping priorities clear and thinking of the greater good no matter what.
By the time she arrived in New York for the moot court, Pam was her usual centered and supportive self—which was fortunate for me, since the first moot was not exactly a resounding success.
BECAUSE I HAD never argued a Supreme Court case before, I was constantly being bombarded with advice. People were literally coming out of the woodwork, wanting to help, convinced I would screw up, or simply wanting a stake in a piece of history. That is to be expected in any Supreme Court case, especially one as important as Windsor. My inexperience at the Supreme Court obviously made me nervous, but I hoped that the moot court sessions would help me to get a solid grip on which arguments were working and which were not in my oral argument.
In a moot court, a lawyer faces a panel of “judges” (usually other lawyers) to practice his or her argument. The panel asks questions, often mimicking the tone or style of the real judges or justices who will be hearing the case, while other people are sometimes invited to watch, take notes, and offer constructive criticism or suggestions on how to improve. That is the ideal scenario, anyway. But our first moot was, to put it mildly, not ideal.
The moot took place in a large room at NYU’s law school, and when I walked in I was astonished by how many people were there. At one end of the room there was a long table behind which the judges would sit, and in front of that table, at the very center of the room, there was a lectern for me to use while I argued. I was literally encircled by dozens of people sitting in rows of seats around the room.
Waiting to begin, I obviously felt enormous pressure. I was painfully aware that a number of accomplished Supreme Court advocates—some of whom were there that day—were wondering to themselves, Why in the world is Robbie Kaplan arguing this case? I had come to learn and work on my strategy, but I also felt that I had something to prove. What I had hoped would be a tightly focused exercise felt, from the very beginning, more like a lopsided contest, like one between gladiators in the Roman Coliseum. (I probably should have begun with the traditional saying used by the gladiators before they began to fight that I remembered from my high school Latin class: Morituri te salutamus, or “We who are about to die salute you.”)
“The nature of moots,” James Esseks explained, “is that you get a lot of very opinionated people telling you with great conviction that you have to do ‘x’ and you can’t do ‘y,’ and all the advice is different. You have to sort through it and figure out what you’re going to do. And while some points do come through consistently, a whole lot doesn’t.” In other words, from the moment I started, I would have to assess which of the many conflicting pieces of advice to follow and which to discard.
I stood in front of the moot panel and began my oral argument. “My client Edith Windsor met her late spouse Thea Spyer in 1963. They were fortunate enough to be able to spend the last two years of Dr. Spyer’s life together as a married couple. When her spouse died—”
“But not in New York,” one panelist interjected.
“Excuse me?” To be honest, I really hadn’t expected to be interrupted in the first three seconds of my argument. First of all, that’s not what is typically done in moot courts, since you want to have a chance to work on your actual opening. Second, although the Supreme Court justices are notorious for interrupting lawyers, even they were not likely to cut someone off before she had even completed her third sentence. We then veered into a ten-minute detour about whether Edie and Thea’s marriage was recognized under New York law (it clearly was), and then I was able to continue my opening.
Things didn’t get much better from there, because it soon became clear that I was not the only one in the room who felt the need to prove something that day. “People were asking these very esoteric questions,” recalls Julie Fink. “I don’t think they were questions that anybody really expected.”
“It was an odd panel to have for Robbie’s first moot,” Pam remembers. “Lots of academics. And academics often have their own theories of what cases are actually about, so they’re not usually the most helpful people to moot in front of.”
I parried a lot of questions, but unfortunately not too many that were likely to come up in front of the actual justices. I tried to get through the main points of our argument but kept getting bombarded with questions from left field, right field, and from completely out of the ballpark. The moot was truly all over the map, with the moot court judges at times seeming far more concerned with having their own theories heard than helping me to prepare for my oral argument.
After a lengthy back-and-forth with the panelists, my oral argument, such as it was, ended. We then moved on to the debriefing session, where the panelists and observers could offer their critiques and suggestions. That’s when things really started to veer off course.
At least one extended discussion was based on one panelist’s theory that DOMA was really analogous to a hypothetical restriction on who could ship cargo on freight trains. The panelist suggested that even though the issue was obviously not addressed in our briefs, we should argue that marriage is like a public utility that everyone should have equal access to and that the government must therefore offer it on equal terms to everyone. This was a pretty far-out theory, one that was unlikely to resonate with anyone but the most staunch libertarians, but I had to respond to it anyway. Others suggested similarly odd strategies, in comments that James Esseks later noted were “even less connected to the real concerns the Supreme Court might have than the questioning had been.” And several people suggested that we take the focus off of Edie, minimizing the facts of the case and concentrating only on prior case law.
My frustration—and that of the whole Windsor team—was growing. All around the room, the crowd of observers were shifting uncomfortably in their seats, aware of the disconnect between our strategy and the panelists’ questions and comments. Fortunately for me, given my job as a litigator who argues for a living, I have developed pretty thick skin over the years. But a comment from one lawyer really sent our team over the edge:
You shouldn’t get into facts . . . your low-hanging fruit is all the things that are irrational. Make it about
an irrational federal statute. De-gay the case. De-gay this case.
De-gay the case? This seemed absurd. From the very beginning, our strategy had been to make the whole case about Edie and Thea—about their dignity as a couple, their unequal treatment, and the overt discrimination of DOMA. There didn’t seem to be any legitimate way to “de-gay the case,” and even if there was, I had no interest in doing so.
But the lawyer was not finished. Several others on the panel had already suggested that we model our argument on City of Cleburne v. Cleburne Living Center, a case decided by the Supreme Court in 1985. In that case, the city of Cleburne, Texas, had denied a permit for the Cleburne Living Center (CLC) to build a group home for mentally disabled people. Lawyers for the CLC argued that the justices should apply heightened scrutiny in the case, because mentally disabled people have historically suffered from discrimination. In the majority opinion, written by Justice Byron White, the Court found in favor of CLC, but on rational basis, rather than heightened scrutiny.
Cleburne was clearly relevant to our case, since it was one of the relatively few times that the Court had found legislation to be unconstitutional while applying rational basis review, rather than heightened scrutiny. And because the Court was not expected to apply heightened scrutiny in Windsor, we needed to be prepared to win on rational basis review as well.
While I had no objection to discussing how best to strategically employ Cleburne, the strategy that was being recommended was, in my opinion, misguided since it downplayed the importance of Justice Kennedy’s gay rights decisions in Romer and Lawrence. Here was the attorney’s suggestion:
Cleburne, Cleburne, Cleburne. This is a Cleburne case . . . Cleburne reverse-engineers the animus. It never says people hated the mentally retarded people in the neighborhood . . . Cars on the street? These people drive less than frat boys. Noise? These people party less than frat boys . . . Cleburne just walks back all the reasons and says why they don’t possibly connect to the statute. So it’s a disconnect. Cleburne, Cleburne, Cleburne, disconnect, disconnect, disconnect . . .
Then Comes Marriage Page 21