Then Comes Marriage

by Roberta Kaplan

  ME: I think it’s an incorrect argument, Justice Breyer, for the—

  JUSTICE BREYER: I understand you do, I’d like to know the reason. [LAUGHTER]

  ME: Of course. Congress did not stay out of it. Section 3 of DOMA is not staying out of it. Section 3 of DOMA is stopping the recognition by the Federal Government of couples who are already married, solely based on their sexual orientation, and what it’s doing is undermining, as you can see in the briefs of the States of New York and others, it’s undermining the policy decisions made by those States that have permitted gay couples to marry.

  States that have already resolved the cultural, the political, the moral—whatever other controversies, they’re resolved in those States. And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of Federal law, you’re not—you’re not taking it one step at a time, you’re not promoting caution, you’re putting a stop button on it, and you’re having discrimination for the first time in our country’s history against a class of married couples.

  Already married, already gay! I finally got to make our argument. In the nine states where gay people were then allowed to marry, there hadn’t been chaos as a result—we hadn’t seen any breakdown or disruption of the social order. Gay marriage wasn’t tearing the fabric of the nation. Whatever reason anyone had for thinking that gay people shouldn’t be allowed to marry, we had a response.

  Justice Sotomayor followed my answer on uniformity by asking, “Do you think there’s a difference between that discrimination [against gay married couples] and the discrimination of States who say homosexuals can’t get married?” I responded by saying again that Windsor and Perry were different cases, but her question gave me a chance to stress once again the real reason why Congress had passed DOMA:

  The answer can’t be uniformity as we’ve discussed. It can’t be cost savings, because you still have to explain then why the cost savings is being wrought at the expense of married couples who are gay; and it can’t be any of the State interests that weren’t discussed, but questions of family law in parenting and marriage are done by the States, not the Federal Government.

  The only conclusion that can be drawn is what was in the House Report, which is moral disapproval of gay people, which the Congress thought was permissible in 1996 because it relied on the Court’s Bowers decision, which this Court has said was wrong, not only at the time it was overruled in Lawrence, but was wrong when it was decided.

  Chief Justice Roberts then jumped in to ask me whether the “84 senators based their vote on moral disapproval of gay people?” With that, he gave me the opening that I’d been looking for, the chance to win my bet with our team by quoting Justice Kennedy’s own words directly.

  ME: I think what is true, Mr. Chief Justice, is that times can blind, and that back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction—

  CHIEF JUSTICE ROBERTS: Well, does that mean—times can blind. Does that mean they did not base their votes on moral disapproval?

  ME: No; some clearly did. I think it was based on an understanding that gay—an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don’t think exists today and that’s the sense I’m using that times can blind. I think there was—we can all understand that people have moved on this, and now understand that there is no such distinction. So I’m not saying it was animus or bigotry, I think it was based on a misunderstanding on gay people . . .

  The moment I said “times can blind,” Chief Justice Roberts—and all the other justices—knew exactly what I was doing. Those words are probably the most quoted phrase from Kennedy’s opinion in Lawrence v. Texas, and they speak precisely to the point I was trying to make. In 1996, lots of people thought gay people were different, not to mention strange and scary, but in 2013, that wasn’t the case anymore.

  Were people homophobic bigots in 1996? No, they were blinded by the times they lived in. What cured the blindness of prior generations in failing to see that their gay brothers, sisters, colleagues, and neighbors have the same human need for love and commitment as everyone else?

  In large part, the reason for this sea change in attitudes toward gay people is the fact that until recently, many Americans simply did not realize that they knew anyone who was gay. Because of the sting of social disapproval and the persistence of discrimination in nearly every facet of everyday existence, for most of the twentieth century and continuing even today, many gay people have lived their lives in the closet so as not to risk losing a job, a home, or the love and support of family and friends. Without the benefit of knowing and understanding the lives of gay people living openly and with dignity in their communities, many Americans failed to see that gay people and their families have the same aspirations to life, liberty, and the pursuit of happiness as everyone else.

  Perhaps the paradigmatic example of this phenomenon is the experience of the senator from my home state of Ohio, Rob Portman, who supported the Ohio marriage bans at issue in this case based on his “faith tradition that marriage is a sacred bond between a man and a woman.” However, shortly before the oral arguments in Windsor, he changed his mind upon learning that his own son is gay.

  Justice Scalia asked me next how many states currently permit “gay marriage,” and I answered nine. “So, there has been this sea change between now and 1996,” he said. I couldn’t really tell whether Justice Scalia expected me to respond with a yes, or a no, but I readily agreed, “I think with respect to the understanding of gay people and their relationships there has been a sea change, Your Honor.” This gave Chief Justice Roberts the idea for his next question.

  CHIEF JUSTICE ROBERTS: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?

  ME: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as was discussed in Bowers and Lawrence, was an understanding that there is no difference—there was [no] fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.

  CHIEF JUSTICE ROBERTS: You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different States is politically powerful, do you?

  ME: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor.

  I knew where the chief justice was going with this. As we had argued before the Second Circuit, one of the four characteristics that the courts have looked to in deciding whether a particular minority group should receive heightened scrutiny is a lack of political power. The chief justice was implying that gay people now had more than enough political power to protect themselves from discrimination through the political process, but I disagreed. “Really?” he asked. I responded, “Yes.” (My mother, who was sitting with my father in the courtroom, later told me that when I gave this answer to the chief justice, she panicked, convinced that a bunch of federal marshals were going to walk over, put me in handcuffs, and escort me away.)

  Then the chief justice said, “As far as I can tell, political figures are falling all over themselves to endorse your side of the case.” (Here was the unforeseen consequence of President Clinton’s op-ed that I had worked so hard to get.)

  My face flushing for the first and only time, I responded:

  The fact of the matter, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights the way gay people have, and only two of those referenda have ever lost. One was in Arizona; it then passed a couple of years later. One was in Minnesota, where they already have a statute on the books that prohibits marriage between gay people.

  So I don’t think—and until 1990, gay people were not allowed to ent
er this country. So I don’t think that the political power of gay people today could possibly be seen within that framework.

  Throughout our entire case, I had succeeded in keeping my personal feelings at bay. As a lawyer, my duty is always to my client, and for four years, I had kept my focus relentlessly on Edie Windsor and the facts of her case. But DOMA wasn’t just a law that I wanted to see struck down as an attorney. It was a law that adversely affected me, my wife, and my son. I wanted to win this case for Edie, but I wanted DOMA struck down for my own family, too.

  As the only gay lawyer who had argued in either Windsor or Perry, I was acutely aware that I needed to keep on an even keel, even more so than the other lawyers. I could not appear to be emotionally invested, even though I was. But in the moment that Chief Justice Roberts used the phrase “falling all over themselves,” years of my own injured feelings came rushing to the surface. Being told by a nurse that I couldn’t take Jacob home. Having a social worker ask what we would tell Jacob when he “grieves the loss of the father.” And I was one of the lucky ones. Many more gay people—too many to count (including Edie)—had suffered far worse indignities in their sometimes too-short lives, and many more would continue to do so, no matter how much political power Chief Justice Roberts believed we had.

  My voice had cracked slightly with emotion as I answered, but as the chief justice began to respond, I quickly regained my composure. “[Y]ou just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted,” he said, “and I’m just trying to see where that comes from, if not from the political effectiveness of groups on your side of the case.”

  I knew I was nearly out of time, and this would be my last substantive response before my argument was over. At that moment, a thought popped into my head that we hadn’t mooted or ever discussed, but it was far too late to ask anyone else what they thought. I know it sounds crazy, but I honestly believe that God, a higher power, or whatever else you want to call it helped to put it there. In an instant, I decided to trust my instincts and forge ahead.

  To flip the language of the House Report, Mr. Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples’ relationships are not significantly different from the relationships of straight married people.

  In the hundreds of hours we had spent preparing, we had never come up with this idea of flipping the phrase “moral disapproval” from the legislative history of DOMA to a “moral understanding” of gay people today. The minute it came into my head and out of my mouth, however, I knew that it was exactly the right thing to say. There was little the chief justice could really say in response and we were out of time anyway, so that’s how my argument ended.

  Paul Clement stood up to do his three-minute rebuttal, and while I sat down next to Pam, my brain still spinning, I leaned toward her and whispered, “I think my answers were okay.”

  “They were great!” she whispered back.

  I hadn’t screwed it up. I had done right by Edie. And I honestly felt in that moment that I wouldn’t have changed a single word in the answers I had given. What an enormous relief.

  AS LONG AS I am still alive and breathing, I will never forget those next few moments when we walked out of the Supreme Court building onto the steps after the oral argument that day. Our whole team had gathered in the lobby, where we were met by Edie, Rachel, Jacob, Rachel’s mom, Rachel’s sister, our nephew Ari, and Pam’s partner, Viola. We could hear the crowd outside yelling and cheering, and in that moment I flashed back to the Court employee’s offer a few weeks earlier to help us slip out the back way. I had to smile. There was no way I would miss this moment for anything in the world.

  Hilary Rosen and Emily Giske were already there, wearing dark Ray-Bans and looking like Secret Service agents, helping to orchestrate the scene. “Is everybody ready?” Hilary asked. “Here we go.” As we started walking out, I could feel Hilary’s hand on my back, pushing me to the front of the group. (Emily later told me that they had joked that they never would have guessed in a million years that they would be doing “advance” for Robbie Kaplan.)

  We stepped out into the brilliant sunshine, and it took a moment for my eyes to adjust. I had figured that there would be a crowd, but I never expected it to be as big as it was: there were literally hundreds of people. As soon as they saw Edie, they erupted into a wild roar. Looking radiant in a gray suit and bright pink scarf, wearing the circular diamond pin that Thea had given her for their engagement almost a half century before, Edie held her arms wide, as if to embrace the entire crowd. Responding to a reporter’s question about the reasons for the “sea change” in attitudes toward gay people at the press conference on the courthouse steps, Edie explained, “Some brave person woke up one morning and said, ‘I’m gay’ . . . and then another person did it, and then another . . .”

  Edie’s answer was perfect, as good as any I had given the justices that day. I looked at her and thought, We did it. We did it—for ourselves, for our families, for the millions of gay people whose lives would be changed for the better.

  We did it, both Edie and I, for all of us—and for Thea.

  16

  EQUAL DIGNITY

  The “Guide for Counsel,” published by the Supreme Court the same year that our case was decided, explains as follows: “Opinions may be handed down at any time after the argument. The only information the Clerk or his staff can give you in this regard is that cases argued during the Term are usually decided before the end of June.” Because Windsor had been argued at the end of March, we knew that the justices would most likely hand down their decision sometime in June. In other words, we were going to have to wait about three months (or twelve weeks, or eighty-four days, or 2,016 hours) before learning whether all of our work had paid off.

  I tried very hard during that waiting period not to think about the fact that, at any given moment, the justices might be deciding Edie’s case or even writing their opinions. But succeeding in not thinking about things that worry me is not one of my talents. Rachel and I decided to go on vacation in April in what proved to be a futile attempt to take my mind off the case. Both Edie and I were stressed out and edgy, desperate for the decision to be handed down.

  The justices of the Supreme Court don’t give advance notice of the day on which they will release any particular decision; they simply announce that on certain dates they will hand down whichever opinions happen to be ready. So once again, as we had done back when we were waiting to hear whether the Court would grant certiorari, we gathered with all of our Internet browsers on SCOTUSblog.com and hit refresh, refresh, refresh.

  Instead of meeting in a conference room at Paul, Weiss, however, this time we decided to gather at my apartment, since it was a lot closer to Edie’s apartment than our offices. We hoped that it would be a little easier on her since she wouldn’t have to come to Midtown. So Rachel, Edie, and the Paul, Weiss team crowded around my dining room table on June 13 to learn which decisions the Supreme Court had released that day. We stared at our open laptops, hitting refresh, refresh, refresh on the SCOTUSblog website. The Court issued three decisions that day, but none of them were in the Windsor case.

  The same thing happened on at least two more occasions (June 17 and 24). Each time, we were disappointed. Ariel Levy, who was then working on a profile of Edie for The New Yorker, was there with us in my apartment. In her piece, “The Perfect Wife,” Levy accurately captures the mood during our vigil: “Kaplan was frustrated, too. She rubbed her forehead. ‘This is worse than waiting for a jury.’ ” I put my head down on my forearms, according to Levy, and “moaned I’ve got to take up smoking or something.”

  Finally, there was only one day left. On Wednesday, June 26, the Court would issue its remaining decisions for the term, which we knew would include not only our case, but the Perry decision as well.

  This was it—the culmination of three and a half years’ work, not to mention the
aspirations of countless Americans. As we all sat there sweating in the New York City summer heat, we were looking for three key signals that we believed would tell us whether we had won or lost the case. The first was which justice had written the opinion. Given his historic legacy of writing the two prior major gay rights decisions Romer and Lawrence, we believed that if Justice Kennedy wrote the majority opinion for Windsor, it would bode well for our prospects.

  Second, we were looking at the order in which the opinions would be released. Knowledgeable SCOTUS watchers had already concluded, based on the number of opinions that each justice had already authored during the term, that for Windsor and Perry, it was likely that Chief Justice Roberts would write one of the two opinions and that Justice Kennedy would write the other. If that happened, SCOTUS protocol dictated that Justice Kennedy’s opinion would be read in the courtroom first. Accordingly, if the Windsor decision was being handed down before the Perry decision, that would be a very good sign as well.

  And the third and final thing we were looking for—the one that would truly guarantee either a victory or a defeat—was which justice or justices had written dissents. We were pretty confident that if Justice Scalia had written a dissent in our case, we probably wouldn’t need to read any further. We would know for certain that we had won.

  Refresh, refresh, refresh. Finally, the news flashed up on our screens: Windsor was the first decision of the day; majority opinion by Justice Kennedy; dissent by Justice Scalia. Even before reading a single word of the decision, we knew we had won—Section 3 of DOMA had been found unconstitutional.

  At that point, pandemonium broke out in my apartment. Everyone was crying, shouting, jumping with joy, or all of the above. As I hugged Rachel, she said through her streaming tears, “Everything will be different for Jacob now.”

  While I was overwhelmed, I somehow managed to keep my tears in check and spent my time screaming and then rushing to my small home office where it was quiet to read the opinion and dissents. But I do remember that I laughed as I looked over at Ariel Levy, who was crying harder than almost anyone else. So much for objective journalism—though to be honest, I’m not sure any sentient human could have been completely objective in our apartment that day.