Then Comes Marriage

by Roberta Kaplan

  “Already married, already gay.” We were convinced that this was the way to win our case, which is why the suggestion to “degay” Windsor had felt so wrong at the first moot. In fact, we ended up turning that recommendation into a joke, too—a silly joke, but one that always made us laugh. At a meeting, someone would point to me or Julie or Alexia and intone in a pseudo-foreign accent: “De gay! De gay!” This was based on the white-suited character Tattoo played by Hervé Villechaize in the TV show Fantasy Island, who would race to the bell tower and shout, “De plane, de plane!” when the plane with guests arrived at the beginning of every episode. For some strange reason, we always found this hilarious, although by that point it was entirely possible that we would have found practically anything hilarious, given how slap-happy we all were.

  I HAD NEVER seen a Supreme Court oral argument in person, so a few weeks before ours was scheduled to take place, I took the train down to Washington, DC. I wanted to get a feel for the courtroom and watch the justices in action, to get a sense of their demeanor and tone.

  Because I had already been admitted to the Supreme Court bar, I was allowed to sit in the special front section that is reserved for such lawyers. The first thing I noticed was two women in full military uniforms sitting right in front of me, huddled together discussing the case, which as I recall had something to do with government immunity in medical malpractice claims. Overhearing a few stray comments, I soon realized that one of the women was a lesbian and that she was married. This was the first moment when I realized that we were going to win. Seeing this openly gay uniformed servicewoman sitting at the Supreme Court talking about her marriage in a case that had nothing to do with gay rights, I knew we had come way too far to be turned back now.

  A few weeks later—just about a week before the Windsor oral argument—I returned to the Supreme Court. This time I had been graciously invited by a Court employee to come get a feel for the lectern, a grand old antique with a manual crank on the side to move its podium up and down. Josh Kaye came with me, and we were both thrilled and grateful to have the opportunity to explore the Court and get a feel for its history. It was also a nice break from our near constant preparation routine.

  The Supreme Court employee walked me up to the lectern, and I put down my bag and papers, straightened my jacket, and stepped up to it. I imagined myself standing there in front of the justices, making an impassioned argument for the dignity of gay people . . . but the podium was a bit too high. I reached for the crank to adjust the height. “STOP!” the employee shouted, jolting me out of my law-geek fantasy. “Don’t touch that!” I’m not sure why I wasn’t allowed to touch the crank, as other lawyers have; one was even commanded to do so during an oral argument by Justice Ginsburg, who was distracted because the podium was at the wrong height. Whatever the reason, I cautiously backed away slowly from the lectern; the last thing on earth that I wanted to happen was for me to break a historic antique at the Supreme Court a week before my argument.

  After a few moments, the employee led us out of the courtroom. And that was when I got what seemed like an odd question: “Will you need any help getting out of the Court on the day of the argument?” I turned, initially confused. “Thanks so much, but although Edie is hard of hearing and will need the help of a special hearing device, she can walk just fine on her own, so I don’t think we will need any other help,” I said. I thought about it further and asked, “Actually, I’m not sure what you mean?”

  It turned out that another lawyer on the case had asked for help getting out the back door after oral arguments, and I knew instantly that there was only one lawyer who that could be. Apparently Paul Clement, the BLAG lawyer who was arguing in favor of the constitutionality of DOMA, had been asked by his client to leave as unobtrusively as possible, presumably so that he wouldn’t have to confront the packs of media on the Court’s front steps. This was the second moment when I couldn’t help thinking, We are going to win this case. Josh and I looked at each other and smiled—he knew just as well as I did what this meant.

  “No, thank you,” I replied. “I’m pretty sure that Edie will want to go out the front door that day.”

  14

  ALREADY MARRIED,

  ALREADY GAY

  About ten days before the oral argument, Julie Fink, Josh Kaye, and I moved from Manhattan to a hotel in Washington, DC, near the National Mall. Other members of the Paul, Weiss team—Jaren, Alexia, Colin, and Andrew—would join us there the week before the argument. Pam Karlan took up residence at another hotel, just a few blocks away from the Supreme Court, since it was her tradition to walk over to the Supreme Court building on the morning of arguments.

  We were in the home stretch now, tying up loose ends as I continued to practice. Morning, noon, and night I repeated to myself the points we wanted to make and responses to potential questions from the justices. The rest of the team kept researching, digging up helpful facts about which states had enacted which laws, when they had done so, how many people were affected by them—anything that had the remotest chance of being helpful. It was as if I were cramming for the biggest oral exam of my life. Actually, that’s exactly what it was.

  There were other details to take care of, too. I had a closet full of suits at home in New York, but I was far too superstitious to simply wear any old outfit to argue my first case at the United States Supreme Court. I had to look right, so I asked my friend Emily for advice, and she referred me to someone she knew at the Ralph Lauren store on Madison Avenue.

  I went in for a fitting, and, to be honest, I chose the fabric and style as if I were deciding between an iced latte or a cappuccino at the coffee shop on our corner. Mary Murray, the saleswoman, laughed and said, “I’ve never seen anyone make decisions so quickly.” But I knew what I wanted: a dark navy suit with pinstripes (conservative, which was appropriate for the Supreme Court) and a silk round-collared, cream-colored blouse. Of all the issues I needed to spend time worrying about at that point, clothing was not high on my list.

  Shoes, however, were another matter. I had bought two new pairs—one a somewhat flashier pair of Gucci pumps, the other a more conservative pair from Ferragamo. The Guccis were more comfortable, but I still couldn’t decide which pair to wear. Once we got to Washington, Pam suggested I should ask her own personal style consultant: NPR’s legendary Supreme Court correspondent Nina Totenberg.

  Pam and Nina were old friends, and Pam, who tends to focus on matters of the mind far more than those of fashion, occasionally would get clothing advice from the always fashionably dressed Nina. “I’ll bring her over,” Pam said. I laid my suit out on the bed, put the shoes on the floor next to it, and ordered up a pot of tea from room service. If we were going to meet to discuss Supreme Court fashion, we might as well be civilized about it.

  When Pam and Nina arrived, I poured each of them a cup of tea and then gestured toward my outfit. “So, what do you think?” I asked. “The Ferragamos are more conservative, which might be more appropriate for the Court . . .”

  Nina just laughed and said, “Robbie, I am positive that the justices will not be able to see your shoes.” I knew she was right, since I would be standing behind the historic lectern that I had already seen. But still, given my state of high anxiety, almost any and every detail somehow seemed crucial—or at least important, anyway. We did not discuss any legal strategy or details of the case, but I told Nina I was planning to go with the Ferragamos, and she nodded. From then on, whenever we e-mailed back and forth about developments in the case, we would joke about my shoes.

  In fact, Nina even ended up using my shoes as a detail in a blog post just after the oral argument, writing, “Lawyer Roberta Kaplan, representing DOMA plaintiff Edith Windsor, wore conservative Ferragamo pumps for her argument, deciding against the jazzier Guccis, with a bigger brass buckle. Neither is what I would call racy.” As she told me later, she received a lot of praise for her amazingly detailed reporting on this issue.

  That same week, I woke
up one morning to find an unexpected and very welcome op-ed in the Washington Post. George Will, one of the leading conservative pundits in the country, had written a piece entitled “DOMA Infringes on States’ Rights.” In it, Will advanced what was called the federalism argument against the constitutionality of DOMA. Will had taken his cue from some prominent law professors led by Ernest Young of Duke and Randy Barnett of Georgetown (who had also led the constitutional arguments against Obamacare). They had submitted an amicus brief on our side arguing that DOMA was unconstitutional because it violated the Tenth Amendment, which provides in relevant part that “the powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states.” In other words, Will urged the justices to strike DOMA down not because it failed to respect the equal dignity of married gay couples like Edie and Thea but because Congress did not have the constitutional authority to pass it in the first place, since only the states, not the federal government, can regulate marriage.

  Following this argument, Will argued that each state—regardless of whether it had voted to allow marriage equality (like New York) or had instead voted to ban it (like Mississippi)—should get to make its own decisions about this issue. As he wrote, “By striking down DOMA—by refusing to defer to Congress’s usurpation of states’ powers—the court would defer to 50 state governments, including the 38 today that prohibit same-sex marriage.”

  Will’s reasoning, of course, was not the same as ours. We wanted the justices to find DOMA to be unconstitutional, of course. But we wanted them to do so on equal protection grounds since DOMA discriminated against gay people, not because it offended the Tenth Amendment conception of states’ rights. It wasn’t inconceivable, however, that the federalism argument that Will was making might actually convince one or more of the more conservative justices to vote our way. After all, states’ rights is an important issue to many conservatives, and certain of the justices had made it clear in their opinions that they were strong believers in this view of the relationship between the states and the federal government. It is interesting to consider whether some of these conservatives, who undoubtedly have LGBT children, siblings, or friends, were supporting us on states’ rights grounds because doing so allowed them to avoid the equal protection arguments. In an ideal world, I wanted to win Edie’s case for the right reasons—but we don’t live in an ideal world and a win was a win, so I was happy to see Will’s op-ed.

  The closer we came to March 27, the better I felt about our chances. Edie soon came down to DC, joining us at the hotel. No matter where we were, people would stop her for pictures and to wish her good luck. Facebook and Twitter were awash in HRC’s red marriage equality logo. In addition to George Will, much of the conservative establishment seemed to be turning our way as well. The best example of this came a few weeks after our Supreme Court argument, when Commentary magazine, a bastion of the neoconservative establishment, published an article contending:

  To allow the federal government to formulate a national standard for what has long been a state decision would drive one of the last nails into the coffin of federalism. In Windsor, the Supreme Court has an opportunity to reanimate the dying spirit of the nation’s many-layered and many-leveled political system. Striking down DOMA and leaving the recognition of gay marriage to the political process in the states is not just the federalist thing to do, it is the conservative thing to do.

  These were all encouraging signs, but we kept trying to think of ways to make our case more persuasive, especially to Justice Kennedy.

  One thing that is distinctive about Justice Kennedy’s jurisprudence is the fact that he is the author of the majority opinions in what were then the two major Supreme Court cases affirming the civil rights of gay people: Lawrence v. Texas in 2003, which overturned Bowers v. Hardwick and struck down Texas’s sodomy law; and Romer v. Evans, which in 1996—the year DOMA was passed—decreed that an antigay amendment passed by the state of Colorado was unconstitutional. I had read those opinions over and over again until my eyes were bloodshot, because I wanted to make sure that I had truly absorbed Justice Kennedy’s thought process and reasoning.

  One passage in the Lawrence opinion was particularly appropriate since it spoke to the vexing question of why otherwise open-minded people like President Clinton had chosen in the past to support DOMA:

  Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

  In our briefs, we had taken great care not to point fingers at the lawmakers who had voted for DOMA, and I wanted to do the same thing in my oral argument. It’s considered bad form to seem to be overtly lobbying for a particular justice’s vote at argument. But rather than citing Justice Kennedy’s opinions directly, I could try to echo his language in a more subtle fashion, using his own words and phrases like “times can blind.” This served another purpose, too. I knew that in all likelihood, one or more of the justices would attempt to box me in on a point I didn’t like or want to be boxed in on. The best thing to do in those moments is to pivot, or redirect the argument back to your own strongest points. Interjecting phrases from the justices’ own opinions is a time-honored way to do that, which led my brilliant colleague Jaren to come up with a fantastic idea.

  “Why don’t we put together a list of all the Kennedy quotes that might be useful?” she asked. We quickly went through his Lawrence and Romer opinions and pulled out the best phrases we could find, creating a cheat sheet I could use that we called “Kennedy’s Greatest Hits.” It included the most important passages from Justice Kennedy’s opinions in Romer and Lawrence, such as:

  • Sweeping and comprehensive is the change in legal status effected by this law. . . . Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

  • It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.

  • For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.

  • It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

  I studied this sheet for hours, quite literally walking around the streets of Washington, DC, like a crazy person, repeating the phrases out loud over and over again so that they would be on the tip of my tongue during the March 27 oral argument. People on our team even began placing bets on when, or whether, I would manage to work any of them into my o
ral argument. Regardless of the office pool odds, I was determined to do so.

  By now I had practiced my answers to the justices’ potential questions to the point where I could practically recite them in my sleep. Everything was going smoothly, until one unfortunate moment just three days before the argument.

  This was our final moot, my last chance to calibrate my answers before appearing in front of the justices. Edie, Pam, the rest of the team, and I met in the evening in a big conference room at the Paul, Weiss offices in downtown DC, and for the umpteenth time, I began laying out our arguments. Very soon, Pam started grilling me on the issue of heightened scrutiny, asking me again and again why laws that treat gay people differently should get heightened scrutiny when laws that treat other groups differently—such as the physically or mentally disabled—clearly did not. She kept pounding on the issue, trying to exploit cracks in my argument, and I suddenly felt exhausted.

  “You know what?” I exclaimed, speaking out of turn and no longer in moot mode. “Enough! If I have to during the argument, I’m going to throw handicapped people under the bus.” What I meant to say, of course, was that I would try to sidestep this problematic issue if the justices brought it up. It wasn’t my job, after all, to look out for the legal rights of other minority groups; it was my job to win our case for Edie Windsor. But unfortunately, and to my deep regret, that is not what I said.