Then Comes Marriage

by Roberta Kaplan

  The minute I saw the look on Edie’s face, I knew that she was furious. Suddenly, I remembered that Thea had been a quadriplegic. She had spent a quarter century in a wheelchair, with Edie taking care of her and loving her through it all. I had even seen Thea like that myself when I was her patient. And I had just casually blurted out a remark about throwing her, or people like her, under the bus.

  I immediately felt sick to my stomach. “Edie,” I said, “I’m so sorry. I didn’t mean it to come out that way.” I tried to explain, but Edie was in no mood to hear it. She was tired, she was hurt, and she was absolutely right that I never should have said what I said.

  To quote the Paul Simon song, we as lawyers can sometimes “think too much.” We can get so caught up in the gamesmanship and legal technicalities that we lose sight of the real people behind the cases. The look on Edie’s face reminded me in an instant that this wasn’t about the briefs and PR logos and op-eds; it was about the still-grieving woman standing right there, looking at me with hurt in her eyes. It’s all about Edie, stupid. How could I have forgotten that?

  I felt terrible about upsetting Edie that day—in fact, I still do. But in a strange way, that mistake helped me to remember something vital to our case. I wouldn’t forget again what United States v. Windsor was truly about.

  THE DAY BEFORE my Second Circuit oral argument, Edie, Rachel, and I had gone to Yom Kippur services together in Manhattan, an event that turned out to be incredibly meaningful. Coincidentally, two days before my argument at the Supreme Court, it was time to celebrate another Jewish holiday. Monday, March 25, was the first night of Passover, when Jews throughout the world celebrate the liberation of the Jewish slaves from Egypt more than three millennia ago. We planned a big Seder dinner at the hotel and invited dozens of people—practically anyone and everyone who happened to be in Washington, DC, at the time who had anything to do with the case.

  In the Supreme Court’s original scheduling order, the oral argument in Windsor was supposed to take place on March 27 and the oral argument in Perry was supposed to happen on March 26. But Vicki Jackson, the Harvard Law professor whom the Court had appointed to argue the jurisdictional question in Windsor, had asked the Court to switch the dates because she had planned a Passover Seder at her home in Cambridge for the evening of March 25. The Court readily agreed, and the switch ended up working in our favor, since we would now be able to hear the Perry argument first and listen to what the justices had to say before I argued Windsor. It also meant we could have our own Seder and still have one more day for final preparation before the oral argument.

  Rachel took on the massive task of organizing our Seder. Passover Seders are comprised of many specific dishes—foods that have symbolic meaning for the religious holiday, and which therefore must be prepared with some precision. Above all, no food that is leavened, which includes bread, pasta, and most cookies or cakes, can be eaten during Passover. This is to commemorate the fact that when the newly liberated Israelites were escaping from Pharaoh’s armies, they did not have time to wait for their dough to rise. The restaurant at the hotel was mostly Asian, and at one point I could hear Rachel on the phone explaining, “We cannot have any wontons in the matzoh ball soup!”

  It is also traditional at Passover for everyone present at the Seder to read from the Haggadah, the centuries-old text that lays out the order of the Seder and explains the meaning of the holiday. There are many different versions of this text, some longer than others and some with modernizing touches. Over the years, Rachel and I had created our own relatively lengthy Haggadah with social justice and feminist overtones, as well as a lot of poetry and traditional Hebrew from the Torah and the rabbinic literature. I was glad that we had brought copies of our Haggadahs with us, full of prayers and poems about fleeing from slavery (or its equivalent) to freedom and liberty. It seemed especially appropriate considering not only the particular meaning of the Passover holiday but why we were all there in Washington, DC, in the first place.

  The Seder was magnificent. The large room was so full that it was practically bursting at the seams with friends and family and the many colleagues who had been so supportive of Edie and our team. My parents were there, as was all of Rachel’s family, including our niece and all of our nephews from Massachusetts and California; Pam Karlan and her partner, Viola Canales; Mary Bonauto; Emily Giske; Pam’s law students who’d helped with the case; our whole Paul, Weiss team; James Esseks; and Edie. Even the then-girlfriend of Jacob’s wonderful nanny Ellie Alvarez came and brought her parents from Israel, since they were visiting their daughter for the holiday.

  One of the truly special rituals that we did that night was to go around the table and invite everyone to introduce themselves during the song “Dayenu.” In Hebrew, the word dayenu means “it would have been enough for us,” or “it would have been sufficient.” The song is about being grateful for all of the gifts God has given us, such as liberating us from bondage, giving us the Torah (or Jewish law), and allowing us the gift of rest on Shabbat. In other words, had God given us only one of those gifts, it would have been enough. As I looked around at all the faces in the room singing this word dayenu over and over again, I had tears in my eyes. This extended family—many of whom were gay people just asking to live their lives with dignity and justice—was what all our work (not to mention the Jewish holiday) was really about.

  THE NEXT MORNING, March 26, dawned with overcast skies and freezing temperatures. I woke up early and got ready to head to the Supreme Court to hear the oral arguments in Perry, feeling extremely fortunate that as the lawyer who would be arguing on behalf of Edie Windsor, I had been given a ticket to get into the Court for Perry. Both arguments were expected to draw massive crowds, so I knew some of my colleagues had woken up before dawn to stand in line at the Supreme Court, since that was the only way to get a seat.

  Jaren, Pam, Andrew, James, and Paul, Weiss partner Walter Rieman got to the Court around five a.m., and Pam talked later about the uncomfortable transition that took place once they arrived. Because people had started lining up days before, we had hired “line-standers” to act as proxies, so that the attorneys working on the case would not have to spend a sleepless night on the sidewalk. Hiring line-standers has become common for big cases at the Supreme Court, and many firms do it. But Pam described the surreal scene that unfolded the morning of the Perry argument.

  We got over to the Supreme Court at 5 a.m., and the entire lawyers’ line was made up of homeless black men underneath tarps who had been sleeping there all night. And there was this white guy with a clipboard, and you went up to him and gave him your name, and then he went and woke up one of these guys. The guy would get up, wrap his blanket around him, and get on a bus, and you would then take his place in line.

  And if somebody had been there to take a time-lapse photo of this, you would have seen a line of homeless black men turning into a line of affluent white lawyers over about a two-hour period, and I was just staggered by it.

  Especially for a lifelong civil rights lawyer like Pam, who had not only worked at the NAACP Legal Defense Fund but had devoted her entire career to obtaining rights for the socially marginalized, this was a particularly gut-wrenching experience.

  When Pam and the others took their places in line, they stood in the freezing temperatures for another several hours. Once they finally got into the Court, I had already taken my assigned seat in the first row next to Amy Howe, a member of the Supreme Court bar who, along with her husband Tom Goldstein, runs the SCOTUSblog website. I could not wait to see how the argument unfolded and what the various justices would have to say about the issues in the case.

  Charles Cooper, the attorney defending Prop 8, went first. Cooper had clerked for Justice William Rehnquist and served as an assistant attorney general under President Reagan before cofounding his own law firm, Cooper & Kirk. He was a Southerner, a rock-solid conservative from Alabama who opposed gay rights. But what almost no one knew at the time was that his
own stepdaughter, who had grown up with Cooper as a father figure, had recently told him that she was a lesbian. To my knowledge, Cooper never made any public statement revealing how that news had affected him, but it is hard to imagine that his daughter’s coming out had no impact. Later, it was reported that Cooper had helped to organize his stepdaughter’s wedding to her girlfriend, which took place a little more than a year after the Perry oral argument.

  Cooper started his argument by focusing on whether Prop 8’s proponents even had standing to defend the measure. This was the more technical, jurisdictional part of the case, but the detailed questioning made it clear that the answer wasn’t cut and dried. Then Chief Justice Roberts invited Cooper to address the merits, and that’s when things started to get interesting.

  JUSTICE SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

  CHARLES COOPER: Your honor, I cannot. I do not have any—anything to offer you in that regard.

  I couldn’t believe what I had just heard with my own ears. Turning to Amy Howe, I whispered, “Did he just say what I think he said? Did he just concede that I win my case?”

  Amy whispered back, “Yeah, I think he did.”

  Chuck Cooper had just admitted that, other than the right to marry, any statute that treats gay people differently from straight people would be presumptively unconstitutional. As far as I was concerned, the same logic would apply to DOMA since the couples adversely affected by DOMA were already gay and already married. This was therefore a pretty significant concession that DOMA itself was unconstitutional.

  After that exchange, I was feeling pretty good about our chances, to say the least. And then things only got better, with the following humorous exchange between Chuck Cooper and Justice Kagan:

  JUSTICE KAGAN: If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?

  COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple—are infertile, and the traditional— [LAUGHTER]

  JUSTICE KAGAN: No, really, because if the couple—I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. [LAUGHTER]

  This exchange perfectly summed up the flaws in the procreation argument for denying gay couples the right to marry, although Cooper continued to insist that if one person in the couple—the man, obviously—remained fertile, then the government’s interest in procreation was still satisfied. Justice Kagan kept pushing back, until finally Justice Scalia saw fit to interject, to much laughter, “Strom Thurmond was not the chairman of the Senate committee when Justice Kagan was confirmed.”

  Ted Olson went next, and the first half of his argument went more or less as expected, with Justices Alito, Scalia, and Roberts asking pointed questions, and the other justices periodically interjecting friendly questions. The most interesting part was the following exchange with Justice Scalia:

  JUSTICE SCALIA: I’m curious—when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . .

  When did the law become this?

  TED OLSON: When—may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?

  JUSTICE SCALIA: It’s an easy question, I think, for that one. At the time that the Equal Protection Clause was adopted. That’s absolutely true.

  But don’t give me a question to my question. [LAUGHTER]

  When do you think it became unconstitutional?

  Ted and Justice Scalia went back and forth a bit on the question, but Scalia kept pressing the issue.

  JUSTICE SCALIA: Was it always unconstitutional?

  OLSON: It was constitutional when we—as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that—

  JUSTICE SCALIA: I see. When did that happen? When did that happen?

  OLSON: There’s no specific date in time. This is an evolutionary cycle.

  JUSTICE SCALIA: Well, how am I supposed to decide a case then—

  OLSON: Because the case that’s before you—

  JUSTICE SCALIA: —if you can’t give me a date when the Constitution changes?

  What struck me was that instead of focusing his ire on the “homosexual agenda,” as he had in his dissent in Lawrence, Justice Scalia was now spending his energy and time attacking Ted. Coming into this oral argument, I wasn’t sure how fierce Justice Scalia’s questions might get. Afterward, I felt confident that I didn’t need to worry unduly about any verbal flame-throwing from him, which was a relief.

  When the oral arguments in Perry were over, our whole team reconnoitered at the DC Paul, Weiss office to compare notes. The firm had ordered Chinese food (accompanied by boxes of matzoh) for lunch, so when we walked into the big conference room, the table was laden with little white cartons. The Supreme Court had already posted a link to the audio of the argument, so we all sat around the table, scarfing down Chinese food, listening to it. We would stop the audio periodically, discuss how best to answer certain of the questions the justices had asked, and assess whether we needed to change any part of our strategy.

  We discussed the exchange between Justice Scalia and Ted, with Jaren suggesting two possible answers: either DOMA was unconstitutional in 1996, when it was passed, or it was unconstitutional from 1791 onward, because it had never been the role of the federal government to step in and override the decisions of the states with respect to marriage. We started debating the issue back and forth, and it was about that time that I glanced down at my BlackBerry and read the first few lines of an e-mail that I had just received.

  It was from a lawyer who had been at one of the moots. The e-mail started innocuously enough, just sending “good vibes” for my argument. But as I scrolled down, I saw that the lawyer was proposing to dictate an entire opening argument for me, down to starting with “Mr. Chief Justice and may it please the Court.” The e-mail even provided a handy pronunciation guide, referring at one point to “Mr. Clement [Pronounced Cle MENT with accent on Ment].”

  That was about as far as I got. In a moment of surprising sanity on my part, I slid my BlackBerry across the table to Pam and said, “I don’t think I want to read this. Can you take care of it?”

  As Pam read the e-mail, her mouth fell open. The notion that someone who was not part of our team, had never been involved in any of our subsequent strategy sessions, and had no idea what my opening argument even was at this point would write a brand-new one, send it to me less than twenty-four hours before I was about to stand in front of the Supreme Court, and believe that this was actually a productive way to help me was pretty amazing. What was I going to do, just throw all our months of work and preparation out the window? What kind of lawyer would truly think that we weren’t as prepared as we could possibly be for this argument?

  Pam read the whole thing, then said, “Yeah, I don’t think you need to finish this.” I asked what we should do, and she said—and this is why I so love Pam—“We could send an e-mail that says, ‘Someone has hacked into your e-mail account and is sending bizarre messages. You really need to change your password.’ ”

  I never responded to that e-mail, but one good thing did come out of it. For weeks afterward, whenever people on our team e-mailed each other, they’d include little pronunciation guides such as “It’s pronounced WIND-sor” or “That’s pronounced fo-CUS, in case you care.”

  AS I WAS walking into the hotel later th
at afternoon, my cell phone rang. I took the call while standing in the lobby, and just at that moment, Jacob walked by with his nanny, Ellie. He ran up to greet me, shouting with excitement, but I put my hand out to stop him. “Not now,” I said. This was not something I ever did, but these were extraordinary circumstances, although Jacob couldn’t have been expected to know or understand that.

  Jacob got very upset, and Ellie took him away to try to soothe him. I finished my call and went up to my hotel room to continue working. In fifteen hours, I would be standing in front of the Supreme Court, arguing the most important case of my life, and I intended to work for the rest of the afternoon and evening, with as few distractions as possible, before (hopefully) getting a good night’s sleep.

  Rachel and Jacob were staying at the hotel in a separate room so that I could have space to work and sleep without interruption. It hadn’t occurred to me, but this was very strange for Jacob, who was not used to having his two moms staying in different rooms. We had explained to him why it was necessary, but for a six-year-old logic has little sway over emotion. Not only were we not all staying in the same hotel room together but he had hardly seen me in the last few weeks, and now I had just blown him off when he had been so excited and happy to see me.

  I honestly wasn’t really thinking about any of this, but about thirty minutes or so after I had gone up to my room, as I was reading through my notes for the thousandth time, my phone rang. It was Rachel.

  “Robbie, I need you to come down here right now,” she said. “Jacob is really upset.”

  “I can’t,” I told her. “I’m still preparing.” She told me that Jacob was crying, which was something he didn’t normally do. “You need to come down.”

  “Rachel, I don’t have time. I have to read this really important—”

  “Enough!” she said. “There are a million people working on the case, but Jacob only has two parents, and he needs you right now.” There was no appropriate response other than “Okay, I’ll be right down.”