Then Comes Marriage (17 page)

“Robbie,” Tony said, “I understand two people have called you, and you've refused to agree to an extension.” I readily conceded that he was correct and explained why. “Edie's not getting any younger. We need to get this case moving.”

Tony paused, then said, “I'm asking you for an extension because we are seriously considering what position the government should take in this case.” He told me that he was having discussions about our case with President Obama and Attorney General Eric Holder, and that they needed more time to decide what to do.

I have to admit, I did not believe him. I thought the Obama administration, like any defendant, was simply playing for time, messing with my client and my case, and I was irritated. DOMA was a terrible law, and I suspected that the government attorneys were not thrilled about having to defend it. Still, the government almost always defends its own laws in cases like this, so I felt they just needed to figure out their strategy and get on with the process, rather than holding everything up.

Given my assumption that this was an unnecessary delaying tactic, I decided to make some demands of my own. “Okay, Tony,” I said, “I'll give you the extension, but I want something in exchange. I want you to agree that we won't have any standing issues in the case.” If Tony agreed, it would mean the government couldn't argue against us on any technical, non–DOMA-related defense, such as claiming that Edie had “exhausted her administrative remedies” by taking all the necessary steps to get her tax refund from the IRS. I had been suspecting the DOJ might try a defense like this, since they had already done so in the other DOMA cases.

Tony seemed taken aback. “No way,” he said. “I won't give you anything.” This type of bargaining was not really how things were done in the world of constitutional litigation, but I did not come from that world. I was a corporate litigator, and this was very much how we did things in my world. I was more than happy to negotiate, but Tony shut that down fast.

“Robbie,” he said, his voice even. “I'm telling you that the attorney general of the United States of America himself is asking you for this extension.”

“Let me think about it,” I said. “I'll call you back.” I hung up the phone.

I told my law partner Marty Flumenbaum, who sits in the office next door to mine, about the conversation. When he heard what had transpired, he said, “Robbie, are you crazy? The attorney general is asking for an extension on behalf of the president. Give it to them.” Clearly, Marty felt there was no room for debate. Reluctantly, I went back into my office and called Tony.

“Okay, Tony,” I said. “We'll give you the extension.” Tony thanked me, and the conversation could have, and probably should have, ended there. But I couldn't help myself. I needed to remind Tony whose side the angels were on. “Tony,” I said with more than a hint of irony in my voice, “I just want you to know that as you and the president deliberate upon this, I'll be praying for both of you.”

THE FACT OF
the matter was that the Department of Justice was in a particularly uncomfortable position in our case. Regardless of how Judge Jones ruled, we knew there would be an appeal, as the case was about the constitutionality of a federal statute and had much broader implications than just Edie's personal situation. The eventual appeal would be heard by the United States Court of Appeals for the Second Circuit, and unlike other circuit courts, the Second Circuit had not yet decided how it would analyze laws that discriminated against gay people. Every circuit to have addressed this question to date had concluded that only rational basis review should be applied to such laws.

“Rational basis” is the most deferential form of judicial scrutiny. When a court applies rational basis review, it will uphold the law that's being challenged as long as the government can show any legitimate interest to which the law is tied, however loosely. The government need not even show that the reason it advances is one that actually motivated the law. Nor does it need to show that the law does a very good job of serving the alleged purpose. During meetings with our team, I often referred to this as the “spit test,” since it really doesn't take much to satisfy it. If the court decided to assess DOMA under rational basis, we still could win, but we would have a much higher hill to climb.

But the Second Circuit had not yet decided whether rational basis review was the right standard for cases involving discrimination against gay people. If the Second Circuit were to decide that some form of heightened scrutiny should apply to cases involving this kind of discrimination, it would be a very big deal, potentially determining the outcome of the case.

“Heightened scrutiny” encompasses two higher levels above and beyond rational basis—“strict” and “intermediate” scrutiny. When a court looks at a law using either one of these heightened standards, as a practical matter, the burden shifts—the assumption is no longer that the law is constitutional; the burden is now on the defendant (usually the government) to show that the law furthers an “important” government interest and that the law is “substantially related” to that important interest. (Under strict scrutiny, the government's interest in the law must be “compelling” and the law must be “narrowly tailored” to achieve that goal.) In other words, under either one of these tests, there has to be (as I often say) a “pretty damn good reason” for the law to exist as well as a strong connection between what the law actually does and what the law was intended to accomplish. If the court chose to assess DOMA under heightened scrutiny, the chances were very high that we would win.

Most laws are considered under rational basis, because our society has the expectation that legislators know what they are doing and do not generally seek to pass unconstitutional laws. Moreover,
all
laws necessarily draw lines, and we obviously can't have a legal system where all lines are suspect. But heightened scrutiny exists because sometimes laws do unfairly target certain groups of people, such as women and racial minorities. The Supreme Court has pointed to four factors that explain when a law that draws these kinds of distinctions should trigger heightened scrutiny:

1.  There is a history of discrimination against that group of people.

2. Being a member of that group affects a person's ability to contribute to society.

3. Being a member of that group is not a choice (it is immutable); or, if it is a choice, one shouldn't have to choose not to be a member of the group in order not to be discriminated against.

4. The group doesn't have enough power to protect itself from discrimination through the political process.

DOMA was clearly written to deny gay people federal recognition of their marriages. If we could show that gay people, as a group, fit within this framework, then we could persuade the court to assess DOMA under heightened scrutiny. At that point, the government would have to put up an extremely strong argument to keep the law. I believed we would win our case either way, but getting heightened scrutiny would certainly be a tremendous benefit.

Of the twelve circuit courts in the United States at that time, most had already decided cases that established the precedent that laws affecting gay people should be considered under rational basis. This made the situation easier for the DOJ; its lawyers could just follow that precedent in writing their briefs in the other DOMA cases. In fact, that's exactly what the DOJ had done in Mary Bonauto's
Gill
case in the First Circuit. But because the Second Circuit had no precedent, the DOJ would be forced to take a position. If the DOJ declared in its brief that DOMA should be considered under rational basis, it would be making a strong—and politically unpalatable—statement that gay people did not need or deserve such protection.

James Esseks, on behalf of the ACLU, had already been in discussions with the Justice Department about this issue for a year and a half. As he describes it, “We wanted to put the government in a box. We knew it was not easy for them, but we wanted them to know, ‘This is coming.' ”

In those meetings, gay rights advocates had been lobbying hard for the government to change its stance on DOMA—partly because of the tone-deaf, insensitive brief that the DOJ had filed back in June 2009 in an earlier DOMA case. In that brief, the government had defended DOMA, which was its responsibility. But what took gay rights advocates by surprise was the language that the DOJ lawyers used.

In one section, the DOJ drew parallels between the plaintiffs' case and (1) an incest case involving an uncle and niece, and (2) a case involving a sixteen-year-old bride. DOMA, the DOJ argued, “permits States to choos[e] to recognize or reject same-sex marriages . . . it adopts on the national level, and permits on the state level, a wait-and-see approach to new forms of marriage.”

Incensed by the government's arguments, John Aravosis and Joe Sudbay put up a fiery post on AMERICAblog on June 12 entitled “Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget. Invokes incest and marrying children.” Aravosis and Sudbay called the brief “despicable, and gratuitously homophobic.” They then went on to argue: “Before Obama claims he didn't have a choice, he had a choice. Bush, Reagan, and Clinton all filed briefs in court opposing current federal law as being unconstitutional. . . . Obama could have done that.”

For months, James and others had been working behind the scenes, doing the difficult, unglamorous work of lobbying to achieve that result. At a minimum, they wanted to convince the DOJ to change the way it was defending the law. Best-case scenario, they wanted to convince the DOJ not to defend it at all.

Others were coming on our side, too. On February 13, the
New York Times
ran an editorial called “In Defense of Marriage, for All,” which concurred with these arguments, declaring that “The 1996 Defense of Marriage Act is indefensible—officially sanctioned discrimination against one group of Americans imposed during an election year. President Obama seems to know that, or at least he has called on Congress to repeal it. So why do his government's lawyers continue to defend the act in court?”

We had given the government lawyers their extra thirty days. What they would do with that time was anybody's guess.

THE FOLLOWING WEEK,
while I was on spring break with my family, I received an e-mail from Brian Martinez at the DOJ asking about my availability for a call with Tony West. James Esseks, Mary Bonauto, and Gary Buseck of GLAD were on the e-mail, too. Seeing that, I felt a surge of excitement. Why would Tony West need to talk to all of us? There was no reason I could think of, unless . . .

I sent a quick e-mail to Andrew Ehrlich, now a Paul, Weiss partner. “I think they are going to tell us they're not defending,” I wrote. Andrew replied minutes later with “Holy sh
^*
t!!!” As I dialed in for the call, my hands were shaking.

Once we were all on the line, Tony broke the news I had not dared to hope for—the government would refuse to defend DOMA. He told us that President Obama, Attorney General Holder, and he himself had discussed the matter at great length and had decided that the law was unconstitutional and that they would recommend that the court consider it under heightened scrutiny. Some of the others on the call started asking technical questions, but all I could think was
Who cares about that? They're not defending!
I don't think I have ever been more surprised about anything in my entire life. I literally had tears streaming down my face.

At the end of the call, after Tony had gone through all the logistics about how the DOJ would be announcing their dramatic change in policy, he asked, “Robbie? You remember that thing you said to me before on our call—about praying for me and the president?”

“Yeah,” I said. “Of course.” I felt a little chagrined, remembering my prior glib tone.

“Well,” he said, “I just want
you
to know, Robbie, that
sometimes
, prayer works.”

It is almost impossible to overstate how important this decision was for our side—or how brave President Obama had been to make it. It is extremely unusual for the government to decline to defend federal laws, especially when doing so might come at a political cost. In all the back-and-forth with the DOJ, I had remained cynical. I knew what I thought the administration
should
do, but I never dreamed that they would actually do it.

But this ended up being an important lesson for me. In the incredibly fast-paced world that we live in today, with instantaneous news feeds, tweets, and Facebook posts, it is all too easy to fall prey to cynicism, to assume that everything that is done by the president or his administration is part of some Washington, DC, inside game and is not based on principle or policy. And while I generally am allergic to making direct comparisons between the LGBT civil rights movement and the African American civil rights movement, given their stark historical differences, I think it is no coincidence that it was, in fact, three African American men—President Barack Obama, Attorney General Eric Holder, and Assistant Attorney General Tony West—who made the decision not to defend DOMA. How could they, in good conscience, sit down and write a brief claiming that gay people are not discriminated against? Or that being gay has anything to do with one's ability to contribute to society? Or that gay people can choose not to be gay? Or that gay men and lesbians have so much political power that they don't need to rely on the courts to enforce their constitutional rights? Gay people clearly needed the assistance of the courts to obtain their basic civil rights, and these three courageous men were not willing to argue otherwise.

After I hung up the phone, I hurriedly wrote an e-mail to our team. My hands were still shaking, so it was a bit of a mess: