Then Comes Marriage

by Roberta Kaplan

  When I got to their hotel room, I saw that Rachel was absolutely right. Jacob was as upset as I had ever seen him, sitting on the floor in a corner in the bathroom with his back to us. Seeing him like that completely broke my heart, and I crouched down to try to apologize and to kiss and hug him. But he wouldn’t budge until Rachel finally said, “Jacob, how would you feel if you and Eema [the Hebrew word for ‘mother,’ which is what Jacob calls me] went back to her room and you guys had milk and cookies together?”

  At last Jacob turned to look at us. “Really?” he said, sniffling.

  “Yes,” Rachel said. “We will all go to Eema’s room together.” This was what Jacob wanted, to have our whole family together, and so the three of us went up to my room, ordered milk and cookies from room service, and cuddled up on the bed to watch cartoons. We watched several episodes of SpongeBob SquarePants and Johnny Test, and Jacob sat contentedly between Rachel and me, munching on cookies.

  As Rachel noted later, this was a perfect metaphor for what the case was about. Children need their parents. They need to know that their parents will be there for them whenever they want them, and getting married is a way to help make sure those relationships are kept safe. By spending that time with my wife and our child, we were embodying what family means in the truest sense of the word. In fact, in retrospect, I really can’t think of a better way to have spent my final afternoon before my Supreme Court argument.

  15

  SKIM MILK

  At 6:35 a.m. on March 27, 2013, I sent Pam the following e-mail from my hotel room: “The blowout is happening. In case you were concerned.” This was not some coded secret message about last-minute SCOTUS strategy, it was literally true—I was referring to the fact that at that very moment, my friend David Milligan was in my hotel room giving me a very big, very Washington, DC–style hairdo. My e-mail, of course, was a follow-up to the joke I had made back in December when we learned that Windsor was going to the Supreme Court. At approximately 6:40 a.m., Pam characteristically responded in kind, noting that she was “confident that you will have the biggest hair in the whole damn room.” As for her own hairdo, she observed that “I’m sprayed to a fine lacquer . . . see you over at the Court.”

  Emily had arranged for our transportation, so Rachel, Emily, Edie, Edie’s friend Virginia Maraweck, and I all piled into a big black car for the short ride over to the Court—or what we thought was going to be a short ride. The Court was literally less than two miles away from our hotel, mostly a straight shot along the National Mall, but somehow the driver ended up on the highway, heading out of Washington, DC. Really? This was how my big day in front of the Supreme Court was starting off? I thought I was going to have a heart attack. Soon enough, however, the driver exited the highway and we were there.

  Already, there was a huge crowd of people, reporters, camera crews, and police gathered outside the Supreme Court building. We walked into a side entrance, went through security, and made our way to the cafeteria, where Pam had suggested that we should all meet that morning. From the moment we walked in, however, people started mobbing Edie, wanting to shake her hand, get her autograph, and take selfies with her. She loved the attention, but it wasn’t the ideal atmosphere for us to be able to focus. The lawyers’ lounge would be quieter, but Edie and her friend could not go in there since they were not lawyers, so we weren’t sure where we could go to get some peace and quiet. Fortunately, one of the many kind Supreme Court employees offered to take us to the clerk’s office, where Edie was “protected” from her legions of fans.

  Pam, James, Jaren, and I were soon ushered into the lawyers’ lounge, where the lawyers appearing before the Court traditionally wait before argument. I had been there a few weeks earlier, when I had gone to see a Supreme Court oral argument, so I was familiar with the instructions that General William Suter, the Clerk of the Supreme Court, regularly gave to the lawyers. As General Suter informed everyone in the lawyers’ lounge that the Court had extra pencils, cough drops, and sewing kits available for counsel, I remember thinking to myself, What in the world would I do with a sewing kit right now? Even if I had lost a button on my blazer, I’m pretty sure that if I tried to sew it on right before standing up to argue in front of the Supreme Court, I would probably take off a finger in the process. Another friend who had argued before the Court had advised me to put on my makeup in the lawyers’ lounge, but I didn’t do that either, convinced that if I tried, I would end up looking like Chuckles the Clown from The Mary Tyler Moore Show.

  After the formal presentation by General Suter, I started to pace. In those moments before heading into the courtroom, I couldn’t help but think back to the argument I had made, and lost, for marriage equality in New York in 2006. Seven years had passed since then, and in that time, the world had changed dramatically. At the New York Court of Appeals, my message to the judges was Be brave. Do the right thing, even if it’s hard. Today, my message to the justices would be: Already married, already gay. In other words, in 2006, the burden was on our side to explain why gay people should be allowed to marry. By 2013, the burden had shifted, and it was up to the other side to explain why the otherwise legal marriages of gay couples should be categorically disrespected under federal law.

  Walking into the courtroom, I actually felt pretty calm. Pam, James, Jaren, and I took our seats at the counsels’ table, and as I glanced around the room, I saw that the Court officers had done everything in their power to squeeze as many people into the courtroom as possible. I noticed (while trying very hard not to notice) that a whole slew of Washington, DC, celebrities, such as White House advisor Valerie Jarrett, Democratic Leader Nancy Pelosi, and our own congressman, Jerrold Nadler, walked up to pay their respects to Edie, who was sitting in the second row with Rachel and Viola. My goal was to do my best to ignore all the commotion and focus on my argument, but I was pleased to notice that my hair was at least blown out in the same fashion as that of Nancy Pelosi. As usual, Pam had been correct.

  We all rose as the nine justices entered, and at 10:18 a.m., Chief Justice John Roberts opened the proceedings with the words, “We will hear argument this morning in Case 12-307, United States v. Windsor, and we will begin with the jurisdictional discussion.” As my Paul, Weiss mentor Marty London had exhorted in his text to me months ago, “on to the Show.”

  The justices began with the jurisdictional arguments, which involved a very technical discussion of federal statutes and case law about the authority (or lack thereof) of the Supreme Court to hear the case. Vicki Jackson did a superb job, as did Sri Srinivasan, who argued for the Department of Justice. Paul Clement argued for BLAG, and I was struck by how fast he talked. My whole career, no one has ever believed I’m from Cleveland, assuming that I’m a native New Yorker because I tend to speak so quickly. Throughout my career, people have been telling me that I needed to speak more slowly. But as I sat there listening to Paul Clement, I realized that this may be the one place on the planet where speaking quickly was definitely an advantage.

  During the jurisdictional arguments, I had shpilkes, or “ants in my pants,” since I had tons of nervous energy and was impatient to stand up and get the show on the road. When the jurisdictional arguments concluded, Chief Justice Roberts called for a short break, and then—at long last—it was time for the arguments on the merits. Paul Clement would go first for thirty minutes, then Solicitor General Don Verrilli for fifteen, and then it would be my turn. I would be the last lawyer, and the first and only gay person, to argue in the entire two days (or almost three hours) of oral argument in the Perry and Windsor cases combined.

  Paul Clement opened by telling the justices that “the legal question on the merits before this Court is actually quite narrow.” The federal government, he said, has the “choice to adopt a constitutionally permissible definition” of marriage, rather than having to submit to follow the pro-LGBT equality choices of states like New York.

  Justice Ginsburg was the first to interject, speaking in her usual neu
tral but determined tone:

  Mr. Clement, the problem is if we are totally for the States’ decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people—if that set of attributes, one might well ask, what kind of marriage is this?

  I was thrilled that Justice Ginsburg dove right in with what, after all, was one of our main themes—the sheer breadth of DOMA and how it unjustly discriminated against married gay couples in so many different ways. We had always been worried that enumerating the government benefits that married gay couples were being denied under DOMA would look bad, since it might look like our only goal was to seek what is often derogated as an entitlement, rather than a constitutional right. In other words, although we really wanted this point to be made, I preferred not to be the person to make it. Now that Justice Ginsburg had just made it herself, we were off to a very good start.

  A few minutes later, Justice Kennedy made the same point, but interlaced with elements of the federalism argument that had been circulating recently among conservative thinkers. He observed that DOMA

  applies to, what, 1,100 Federal laws . . .

  [W]hen it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.

  Paul responded by saying that “the very fact that there are 1,100 provisions of Federal law that define the terms ‘marriage’ and ‘spouse’ goes a long way to showing that Federal law has not just stayed completely out of these issues,” and then asserting that “the fact that DOMA involves all 1,100 statutes at once is not really a sign of its irrationality. It is a sign that what it is, and all it has ever purported to be, is a definitional provision . . . all it does is define the term [marriage] wherever it appears in Federal law in a consistent way.”

  So far, the questions the justices had asked were more helpful for our side, but Paul Clement was more than holding his own, answering their questions with his usual fluency and confidence. A few minutes later, however, came an exchange with Justice Ginsburg that would redefine the notion of marriage equality in the post-Windsor era:

  PAUL CLEMENT: No State loses any benefits by recognizing same-sex marriage. Things stay the same. What they don’t do is they don’t sort of open up an additional class of beneficiaries . . . that get additional Federal benefits. But things stay the same. And that’s why in this sense—

  JUSTICE GINSBURG: They’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question.

  It’s—as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage: the full marriage, and then this sort of skim milk marriage.

  Suddenly, there was a lot of appreciative laughter coming from the audience, but because Justice Ginsburg speaks so softly, I wasn’t sure that I actually had heard what she had said, so I turned to Pam. When Pam told me that Justice Ginsburg had just coined the phrase “skim milk marriage,” I had to use all my self-control not to pump my fist in the air in elation. We had spent countless hours on our team debating how best to express the point that under DOMA, gay married people were being treated as second-class citizens. We had gone around and around trying to find a phrase that would best sum it all up. By characterizing Edie’s marriage under DOMA as a “skim milk marriage,” Justice Ginsburg had, in a span of thirty seconds, crystallized what our case was really about.

  Justice Ginsburg had also used the phrase “as Justice Kennedy said,” which was a sign that she understood that the winning side needed his vote. The fact that she had made this point so forcefully, and had attached Justice Kennedy’s name to it, could be read to indicate that she, too, thought we were in good shape.

  Justice Kagan was the next to interject:

  Mr. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it’s uniformly recognized the marriages that are recognized by the State. So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something—maybe Congress had something different in mind than uniformity.

  So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some . . . rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?

  I guess the question that this statute raises, this statute that does something that’s really never been done before, is whether that sends up a pretty good red flag that that’s what’s going on.

  Paul calmly segued into his response:

  When you look at Congress doing something that is unusual, that deviates from the way they have proceeded in the past, you have to ask, Well, was there good reason? And in a sense, you have to understand that, in 1996, something’s happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity.

  Up until 1996, it essentially has it both ways: Every State has the traditional definition [of marriage]. Congress knows that’s the definition that’s embedded in every Federal law. So that’s fine. We can defer.

  Okay. 1996—

  Paul seemed ready to move on, but Justice Kagan wasn’t done:

  Well, is what happened in 1996—and I’m going to quote from the House Report here—is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

  Is that what happened in 1996?

  There was another pronounced collective gasp throughout the courtroom. I had seen Paul Clement argue several times, and I’d never seen him even remotely shaken. But this question understandably threw him off. His answer confirmed that he was on shaky ground:

  Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach . . .

  I have been privileged to observe many excellent cross-examinations in my career (including many by my partners Ted Wells and Marty London), but this was surely at the top of the list. The way that Justice Kagan built her questioning in layers, leading to her final question, should be taught in a class on trial skills. And she seemed to enjoy every second of it.

  From the very beginning of the case, our goal had been to describe DOMA as exactly what it was—a radical departure from how Congress had always treated married people and an effort to “fence off” gay people from the rest of federal law and recognition. Paul Clement’s strategy was to try to characterize DOMA as just an ordinary statute, passed by Congress with overwhelming majorities and signed by President Clinton as if he were simply reauthorizing a federal program as relatively uncontroversial as the National Park Service or the U.S. Postal Service.

  In our brief, we had included numerous vitriolic quotes from the 1996 congressional debate over DOMA—that homosexuality was “based on perversion” or “inherently destructive.” In footnote 3, we showed that such animus was still alive and well in the amicus briefs, which used language such as “immoral,” “radically disruptive to society,” and “a vector of injury and disease” when describing gay people. We had specifically included those quotes in the hopes of provoking precisely the exchange that had just taken place between Justice Kagan and Paul
Clement, to show that DOMA was something extraordinary, even for 1996.

  The moment Paul uttered the words “if that’s enough to invalidate the statute, then you should invalidate the statute,” I thought, We just won. This point was our whole case: the only reason for treating gay marriages differently than straight ones is what is referred to in constitutional terms as “animus.” We had specifically written our brief (including the checklist section in the middle that I rewrote dozens of times) so that the justices on our side could take this information and run with it. All along we had believed that this was the argument that had the best chance of persuading Justice Kennedy. And once again, another justice had just made our point for us.

  WHEN PAUL’S TIME was up, Solicitor General Verrilli stepped up to the lectern. By this point, I was feeling pretty confident about our chances, but as the solicitor general started his oral argument, my feelings turned to a mild state of panic. My anxiety was not the result of how the arguments were going but stemmed instead from the fact that the solicitor general was making the exact same point that I had planned to make during my opening.

  DOMA, he explained to the justices, “exclude[s] from an array of Federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.” In my opening, which we had written and rewritten hundreds of times trying to make it as powerful and concise as possible, the second sentence was “[W]hen a married gay soldier is killed in the line of duty, military officials must notify the dead soldier’s parent, instead of the spouse.”

  Although we had worked with the DOJ on general strategy, we hadn’t exchanged notes with them on our openings. I’m not sure that the solicitor general would have shared his opening with me even if I had asked, since DOJ lawyers tend to play things like this close to their chest. The fact that both the solicitor general and I wanted to open with the military argument speaks to how powerful that argument really was. Now, however, I had to change my opening, and fast.