Then Comes Marriage (22 page)

(Apparently President Obama didn't know that Roberts was gay during the interview; Roberts came out publicly as a lesbian two years later.)

With these words, Barack Obama became the first sitting U.S. President to support marriage equality. His statement was the latest, greatest advance in what had become an amazing run for our side. In February, the Ninth Circuit Court of Appeals ruled that Prop 8 was unconstitutional, setting up a possible appeal to the Supreme Court. Weeks later, Washington and Maryland became the seventh and eighth states to legalize marriage equality. (The New Jersey legislature passed marriage equality, too, although Governor Chris Christie vetoed the measure.) And in one of the four DOMA challenges under way across the country,
Golinski v. Office of Personnel Management
, District Court Judge Jeffrey White in California had ruled that DOMA was unconstitutional.

Golinski
was now the second of the four DOMA cases to win at the district court level. Like the
Gill
case in Massachusetts,
Golinski
was immediately appealed, sending it up to the Ninth Circuit court level. (The fourth case, Mary Bonauto's
Pedersen v. Office of Personnel Management
, was still at the district court level in Connecticut.)

By now, it was clear that the DOMA fight would go all the way to the Supreme Court—and that the justices would choose one of these four cases to hear. The Supreme Court would want a case that already had a circuit court decision, so timing was now more crucial than ever. We needed Judge Jones to make her decision, and make it fast, and then get a quick decision at the circuit court level, if we had any hope of getting to the Supreme Court at all.

Judge Jones, however, still did not feel any pressure to move quickly. On the contrary, she knew this was a historic case, so she continued to take her time. By late May, more than seven months had passed since she had all the filings in hand. Because our “Edie has the sniffles” letters obviously had not worked, there was nothing we could do now but watch with frustration as the other DOMA cases moved forward. On May 31, the First Circuit Court of Appeals released its decision in
Gill
, ruling unanimously that DOMA was unconstitutional. As the first case to receive its circuit court–level decision,
Gill
now looked like the front-runner to go before the Supreme Court.

It is important now to note two things. First, nobody deserved to argue a DOMA case at the Supreme Court more than Mary Bonauto, the undisputed architect of the marriage equality movement. Second, a victory over DOMA would be a victory for all of us, no matter whose case went to the Supreme Court. That said, we wanted the justices to choose
Windsor
, for several reasons.

The most important one was that there was a serious complication with
Gill
. When that case was filed in March 2009, Elena Kagan was not yet on the Supreme Court. She was then the solicitor general of the United States. In that capacity, she was likely involved in discussions concerning the many meetings in which gay rights advocates (such as James Esseks) were trying to persuade the DOJ not to defend DOMA. This was a big red flag: how could Justice Kagan sit in judgment on a case in which she'd been involved? In fact, Justice Kagan had made it clear during her Senate confirmation hearings for the Supreme Court in the summer of 2010 that she took her recusal obligations seriously, telling Senator Patrick Leahy, “I would recuse myself in any case in which I had played any kind of substantial role in the process.”

The last thing we needed was an eight-justice court, bereft of Justice Kagan's vote. In fact,
Gill
and
Golinski
both had been filed while Justice Kagan was the solicitor general, meaning both were at risk of having her recuse herself. But because we filed
Windsor
in November 2010, after Justice Kagan was already on the Court, our case did not have that problem. (We now know that these concerns were well taken. When the final orders were issued in all four DOMA cases in the summer of 2013, Justice Kagan recused herself from both
Gill
and
Golinski.
)

I also wanted the justices to choose
Windsor
because I believed Edie's story would go beyond the legal arguments to touch people's hearts. And let's be honest: I wanted the chance to represent a client before the Supreme Court. Who wouldn't? I relished the thought of arguing an important historical case on such a grand stage.

The truth is, I have never shied away from a stage, even as a kid. One of Jacob's favorite stories about me involves a formative incident at the Red Raider Day Camp, where I spent my summers as a kid in Ohio. One morning, when I was about seven, I went out with my fellow campers to pick blackberries. When it seemed like all the good ones had been picked, I became greedy. Charging deeper into the brush in search of some magical cache of berries, I stepped on a hive of yellow jackets. An angry swarm surged toward me, and before the counselors could rescue me, I was covered with stinging red welts. My hands were so swollen that I could not move my fingers.

Because I was so badly stung, there was talk that I should be sent home early. But in the 1970s, there were different standards of child safety, and the counselors probably did not want my parents to see me like that, so they came up with a plan. “If you stay until the end of the day,” they told me, “we'll make you Camper of the Day.” Camper of the Day! This meant I would get to go up onto a little stage in front of the whole camp to receive the award. So, like the hyper-ambitious little second grader I was, I agreed. The comforts of home and immediate medical attention meant far less to me than winning that award.

Jacob loves when I tell him this story, and although it's funny, it reveals something about me that is still true. I love to win, whether it's corporate litigation, a pro bono case, or a game of Scrabble. At this moment, I wanted more than anything to have the chance to win Edie's case in front of the Supreme Court. And because I had the loving support of Rachel and Jacob, I knew that I could win. (My mother has repeatedly pointed out to me during the course of our daily phone calls that, had I not met and married Rachel, I never would have been involved in this issue, much less had the courage to bring Edie's case.) But the longer it took Judge Jones to make her decision, the more it looked like we would not have that opportunity.

Then, as if spurred by the First Circuit making their decision, Judge Jones suddenly released her decision. On June 6, 2012, she issued a concise, clear opinion with not a single extra word or phrase concluding that DOMA was unconstitutional, even under rational basis scrutiny. In response to BLAG's primary argument that it was okay for section 3 of DOMA to discriminate against married gay couples because of an interest in promoting “uniformity,” Judge Jones had this to say:

[I]t bears mention that this notion of “consistency,” as BLAG presents it, is misleading. Historically the states—not the federal government—have defined “marriage” . . . The federal government neither sponsored nor promoted that uniformity . . .

Yet even if Congress had developed a newfound interest in promoting or maintaining consistency in the marital benefits that the federal government provides, DOMA is not a legitimate method for doing so.

Judge Jones has acknowledged that the First Circuit ruling played a part in her thinking. “When the First Circuit came out with the state's rationale for deciding that DOMA was unconstitutional, we took great advantage of that. It was a rationale that we knew we were going to rely on,” she said. She added, “I couldn't imagine a better plaintiff [than Edie], and it was a story Robbie told very effectively in the papers . . . [I]t's always important to present your plaintiff in a way where, when you put the papers down you think, ‘That person should win this case.' ”

Now we just had to get things rolling in the Second Circuit Court of Appeals. The day Judge Jones's ruling was handed down, we began pressing BLAG to file its appeal. I scheduled a call with the BLAG lawyers, and following some discussion they agreed to file their notice of appeal just two days after the decision. We then filed a motion with the Second Circuit, proposing what James Esseks called “the most aggressive briefing schedule I had ever seen.”

BLAG was not happy. Although they had agreed to the idea of an expedited schedule, this was what one of their lawyers called “warp speed.” BLAG quickly filed a motion opposing the schedule, calling it “radically expedited” and “patently unreasonable.”

Even some of the attorneys on our side were surprised at how hard we were pushing. “I remember looking at the schedule that Robbie wanted to propose, and I'm thinking, ‘They're never going to accept that,' ” James recalls. “And Robbie said, ‘Well, this is what we're proposing.' And we didn't get exactly that, but it was not all that far off in the end.” Ultimately, despite BLAG's objections, the court agreed to a very aggressive schedule, with oral arguments scheduled for September.

In the meantime, U.S. Solicitor General Donald Verrilli Jr. soon made it clear which of the DOMA cases he preferred that the Supreme Court take. And ours was not one of them.

11

PERFECTLY PLEASED

I
n Latin, the word
certiorari
is a present passive infinitive; it means “to be informed.” When the Supreme Court justices grant certiorari, or “cert,” in a case, it means that they have agreed to hear it. Most of the Supreme Court's docket consists of cases raising legal issues that arise repeatedly, so the Court often has to choose from several cases which ones to hear. When the legal issue involves the constitutionality of a federal statute, the solicitor general usually steps in to make a recommendation to the justices as to which case the SG thinks they should take.

On July 3, 2012, the solicitor general filed two cert petitions, one recommending that the Supreme Court take the
Gill
case, and the other recommending
Golinski
, most likely as a backup if Justice Kagan decided that she had to recuse herself in
Gill
. I, of course, was not a happy camper about the fact that two other cases had received the solicitor general's seal of approval, and not ours. What really troubled me, however, was that
Golinski
, like
Windsor
, did not yet have a circuit court decision. If the solicitor general was going to take the unusual step of filing a petition for cert before judgment, I didn't see why he should prefer the
Golinski
case over Edie's.

I was irked but also encouraged: if the solicitor general was willing to overlook
Golinski
's lack of an appellate decision, then that should not hold us back, either. I decided that we too should file our own petition for cert before judgment.

With this step, however, our legal team would be entering unfamiliar territory. Bringing a case in a trial court or arguing an appeal before a circuit court is one thing, but the Supreme Court is another matter altogether. Like any court, the Supreme Court has its own quirks, rules, and customs that can be very different from those of the lower courts. It even has its own loose collection of a few dozen lawyers who argue a disproportionate number of its cases.

A Reuters report examining Supreme Court cases between 2004 and 2012 noted the enormous influence of this group: In that period of time, 17,000 attorneys filed cert petitions before the Supreme Court. Of those, a small group of sixty-six were six times more likely to get their cases accepted. To quote Muriel Spark's Miss Jean Brodie, these lawyers are the “crème de la crème,” or “the elite of the elite.” Reuters noted that “although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide.”

While I had great confidence in our case and in our team, my instincts told me that we needed help. For starters, none of us had ever filed a petition for cert before judgment (which is a rarely used procedural mechanism in any event), and we weren't exactly sure how to go about doing it. We needed to get someone on board quickly who knew the ins and outs of the Supreme Court—a kind of “local counsel” for the high court, ideally a member of the Supreme Court bar. But who? Jaren and I discussed the issue and decided that we did not want a lawyer from another firm, because that could get awkward. We both preferred an academic, ideally one who was gay. That narrowed the field considerably, and we quickly zeroed in on a Stanford law professor by the name of Pamela Karlan.

On paper, Pam was perfect. She specialized in civil rights cases and had worked for the NAACP Legal Defense Fund in the 1980s, where she litigated voting rights cases throughout the South. She had also clerked for Supreme Court Justice Harry Blackmun, who, before he died, publicly gave Pam credit for writing much of the dissent in the infamous
Bowers v. Hardwick
case, which had upheld a Georgia antigay sodomy law in 1986. At Stanford, Pam was cofounder of the Stanford Supreme Court Litigation Clinic, which typically handles several cases a year before the Supreme Court, and she brought her Stanford law students in to work on these cases. In fact, the Stanford clinic has taken part in more Supreme Court cases than all but a few private law firms.

Pam is the real deal. She is known for her brilliant mind, not to mention her prodigious work ethic, and had been repeatedly mentioned as being on the short list of potential Supreme Court nominees. What impressed me most, though, was a comment that she had made in 2009 about why she would probably never be nominated to the Supreme Court: “Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime.” Here was a woman who, like me, speaks her mind. Pam is a clear-eyed, unafraid, openly gay genius who knew her stuff—exactly the kind of person I wanted on our team.