Then Comes Marriage (23 page)

The solicitor general's brief came out on July 3. The next day, even though it was the Fourth of July holiday, I decided to go ahead and e-mail Pam. While I am definitely not known for doing anything at a slow pace, in this case, we really had no time to waste.

Reading my rather terse e-mail now, it is a wonder I thought anyone might suddenly throw aside their hot dogs and Fourth of July fireworks to respond.

Professor Karlan:

I am a partner at Paul, Weiss and counsel to Edith Windsor in the estate tax DOMA challenge pending in the Second Circuit. (Decision by SDNY Judge Barbara Jones on rational basis grounds was issued last month.)

I was wondering if you had any time to discuss some issues with us. I very much apologize for e-mailing you on the July 4th holiday; unfortunately, the issues are somewhat time sensitive.

Thanks so much in advance for your time; any help you can provide us will be greatly appreciated.

Best regards,

Robbie Kaplan

Pam read this scintillating e-mail while standing at her kitchen sink in Palo Alto, dressed in biking clothes for her morning ride—which she graciously postponed in order to talk with me on the phone. “Yeah, sure, I'd love to help,” she said. Just like that, we signed on the newest
Windsor
team member who became our not-so-secret weapon.

MONDAY, AUGUST 6, 2012,
was one of those unbearably hot and sticky summer days in Washington, DC. Jaren Janghorbani, Joshua Kaye, James Esseks, and I plunged into the humidity, traveling to the capital for a meeting at the solicitor general's office as part of our ongoing quest to get Edie's case heard by the Supreme Court. At Jaren and Julie's suggestion, I had added Josh, a fabulous lawyer and person, who had recently come back to Paul, Weiss after completing a judicial clerkship.

With Pam Karlan's help, we had filed our petition for cert before judgment on July 16, but the chances the justices would choose
Windsor
were still very low. It is very rare for the justices to receive petitions for cert before judgment, and even rarer for them to grant one—in Pam's estimation, they only hear such a case once every few years at best. And, of course, our position was made weaker by the solicitor general's filings recommending that the court take
Gill
or
Golinski
, but not
Windsor
. (The likely reason why the solicitor general had chosen
Golinski
was because the district court in that case had decided the issue on heightened scrutiny grounds—the DOJ's preferred argument—rather than on a rational basis, as Judge Jones had in our case.) Still, the justices would not be making their decision until the fall, which meant that we had time to try to persuade the solicitor general's office to change its mind and back
Windsor
instead. That was what this meeting was all about.

We gathered in a giant conference room at the Department of Justice, and as at any government meeting in DC, there were dozens of lawyers present. The meeting was run by Principal Deputy Solicitor General Sri Srinivasan, a sober-minded son of Indian immigrants who would later be appointed to sit on the DC Circuit and was widely reported to be on President Obama's short list for the Supreme Court. Sri was the person we needed to persuade, and we wasted no time telling him the compelling facts of Edie's case.

As everyone knew, of the nine Supreme Court justices, the one whose vote likely mattered the most was Justice Anthony Kennedy. Four justices—John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito—were solidly conservative in outlook and voting records. Four others—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—were considered to be reliably liberal. Justice Kennedy was therefore the deciding fifth vote in most high-profile cases, the justice we needed to convince in order to win.

I strongly believed that of the four pending DOMA cases the justices could choose to hear, Edie's was likely to resonate the most with Justice Kennedy. After all, Edie and Justice Kennedy were contemporaries in age, and I thought that her stories of FBI interviews and McCarthy-era fears were sure to be familiar to him. An article in
Time
magazine had reported that when Justice Kennedy taught at the McGeorge School of Law in Sacramento in the 1960s, one of his closest friends was a closeted gay man, which meant that he would probably find the facts of Edie's story compelling. I brought all of this up at our meeting and reiterated the other strong points of our case: the fact that Edie's tax-bill injury was so straightforward; that she was such an appealing plaintiff; and that there was no chance she and her spouse could split up during the case.

But Sri and the other government attorneys did not seem to be very interested in the facts. They wanted a case that had a circuit court decision, plain and simple.
Gill
had one, but the possibility of a Kagan recusal loomed over that case.
Golinski
and
Pedersen
did not have one, and of course neither did
Windsor
. And Sri was unmoved by the fact that we had filed a petition for cert before judgment, since the solicitor general had already done that for
Golinski
, which was then still pending in the Ninth Circuit.

In fact, in one sense, the government's cert before judgment petition in
Golinski
had backfired from a procedural standpoint. Once the Ninth Circuit judges became aware of it, they decided to stay the case rather than issue a decision. The government's chances of persuading the Court to hear
Golinski
thus actually decreased. At our meeting, Sri assumed that the same thing would happen with
Windsor.
“How do you know the Second Circuit won't just stay your case?” he asked me.

“They won't,” I said. “Believe me, I may not be a Supreme Court practitioner, but I do know my home court in the Second Circuit. Not only are they not going to stay the case, but we are going to get a very fast decision.”

Sri raised his eyebrows. He did not seem to believe a word I had said, but I forged ahead. “I am a New York lawyer,” I told him. “That's what I do. You guys know the Supreme Court, but I know New York courts. We are going to get a very fast decision from the Second Circuit, you will see.”

I believed and hoped that I was right, because that was our only chance. Three weeks after our meeting in DC, the solicitor general filed another brief, once again advising the Supreme Court in no uncertain terms to take either
Gill
or
Golinski,
with the
Windsor
and
Pedersen
cases pretty much an afterthought, to be considered only in the unlikely event that the Supreme Court rejected the other two.

Our poor position in the four-way race to the Supreme Court was not only disheartening, it was threatening to hurt our chances before the Second Circuit. I found this out in August, when I contacted George Washington University law professor Alan Morrison, who had come up with an ingenious new argument as to why DOMA should be struck down.

Alan's daughter, Nina, is a lesbian and a good friend of ours, as well as a highly regarded criminal defense attorney, so Alan had been interested in the DOMA challenges from the very beginning. He had called Mary Bonauto soon after she filed
Gill
in 2009, offering to help out in any way he could.

As Alan plunged deeper into the issues surrounding DOMA, he came to a profound realization. “I had an insight,” he says, “that DOMA was not only mean-spirited and vicious, but it had other negative consequences, too: it meant that all the federal laws and rules about ethics simply didn't apply to same-sex couples.” In other words, if a married lesbian was working for the federal government, DOMA ensured that her wife wouldn't be subject to any of the disclosure laws, recusal rules, or conflict of interest regulations with which married federal employees normally must comply. This was not only nonsensical, it was contrary to sound public policy and even national security.

“I realized that this was important, because it showed how irrational DOMA was,” Alan says. “No rational person could have meant to do that.” Alan asked Mary if he could write an amicus brief about this for
Gill
, and she readily agreed.

Shortly after that brief was filed, Alan came to a second realization. “The same thing was true about bankruptcy and tax,” he says. “There were huge loopholes in the tax laws, for example, that allowed same-sex couples to engage in tax avoidance in ways that opposite-sex couples couldn't.” In other words, DOMA made it possible for same-sex couples to flout all kinds of laws, an unintended, and heretofore mostly unnoticed, consequence. Alan added these arguments to his brief and filed it in the Ninth Circuit in support of
Golinski
.

When I read Alan's briefs, I was struck by how powerfully they articulated a completely different anti-DOMA argument—one that might appeal to more conservative judges. I e-mailed Alan right away to ask if he would file a brief in the Second Circuit for us, too. He told me he was very busy and suggested I just cite his existing briefs, so he would not have to write a new brief for us. The reason he was begging off was apparent: he didn't think
Windsor
had a chance of making it to the Supreme Court.

Stubborn as always, I decided to call Alan and give him the same pitch that I had delivered to Sri. “Listen,” I said, “this case is moving fast. We're going to get a decision soon, and we really need your brief.” Thankfully, Alan said yes, and his was one of the seventeen amicus briefs filed on behalf of
Windsor
in the Second Circuit. We also had briefs filed by 145 members of the House of Representatives; the American Psychological and the American Psychiatric Associations; the Partnership for New York City; the states of New York, Connecticut, and Vermont; the city of New York, and others—all pulled together with lightning speed, in time for filing before the September oral argument.

I was worried about the oral argument in the Second Circuit because we already had two strikes against us. The first was that the three-judge panel that would hear our case included two conservatives: Chief Judge Dennis Jacobs and Judge Chester Straub. We knew Judge Straub was unlikely to vote our way, and I suspected that Chief Judge Jacobs might not, either. Judge Jacobs was a frequent speaker at Federalist Society functions who had never, to my knowledge, decided that a federal statute was unconstitutional outside of the criminal context. Jaren, who had clerked for Chief Judge Jacobs, did believe we would get his vote, although she admitted that this was more of a gut feeling than anything supported by his record.

The second strike was that the oral argument was scheduled for September 27, the day after Yom Kippur.

For those unfamiliar with Jewish holidays, Yom Kippur is the Day of Atonement, considered to be one of the holiest days of the Jewish year. It is a day of repentance, and most Jews—even those who are not particularly religious—spend twenty-four hours fasting and reflecting on their sins of the past year. Thus, from sundown on September 25 to sundown on September 26, I would be observing Yom Kippur, which meant no work, no studying, no eating. This was not, obviously, the best way to prepare for an oral argument, but I am far too religious (and superstitious) to mess around with God.

As a child in Cleveland, I had been told countless times the story of the Los Angeles Dodgers pitcher Sandy Koufax, who sat out the first game of the 1965 World Series because it fell on Yom Kippur. Legions of baseball fans were aghast that one of the best pitchers in the league would choose to miss a World Series start, but for American Jews of my parents' generation, Koufax's decision was nothing short of heroic. When I learned that our oral argument would fall on the day after Yom Kippur, the first thing I thought of was Sandy Koufax, and the second was to begin drafting a request for the court to change the date. That request was denied, so instead of spending the day before the oral argument reading, practicing, and otherwise preparing, I did the next best thing: Rachel and I took Edie to Yom Kippur services.

We went to Congregation Beit Simchat Torah, the LGBT synagogue where Rachel and I had first met thirteen years earlier. On High Holy Days, so many people want to come to services there that the congregation meets at the giant Jacob K. Javits Convention Center on Eleventh Avenue. There must have been five thousand people at services that day, and we spent hours there, praying and reflecting. Although she is Jewish, Edie does not know a lot of the religious rituals and customs, so I helped her read the Hebrew prayers and follow along. Then she and I were invited to open the Ark.

In a synagogue, the Ark is a large cabinet where the Torah, the sacred scrolls considered by most religious Jews to be either inspired by or the actual words of God, are kept. At certain points in Jewish services, the Ark is opened for the Torah scrolls to be placed for reading, walked around the congregation, or simply so that the entire congregation can see the scrolls during important prayers. These are moments of great holiness, and being invited to open the Ark is considered to be a great honor. Edie whispered to me, “How do I do this?” I whispered back, “Don't worry. Just follow me.” The two of us walked up to the Ark and opened the doors together, a moment I would not have traded for any extra time preparing an oral argument.

THE NEXT MORNING,
September 27, Edie and I walked with our team into the Thurgood Marshall Courthouse in Lower Manhattan for the oral argument. And as soon as it began, everything I had anticipated about how the argument would go went right out the window.

Paul Clement argued first for BLAG, and I split the
Windsor
argument with Stuart Delery, one of the highest-ranking gay officials at the DOJ. Unlike Supreme Court arguments, where the attorneys are given little time and the justices pepper them incessantly with questions, each side received a leisurely forty-five minutes. This was the first time I had met Paul Clement in person. I walked over to introduce myself and I remember noticing that all he had in front of him was a single piece of paper in a manila folder, which he presumably intended to use as the outline for his argument. Wow. That was impressive. What surprised me, however, as Clement's argument unfolded, was that Chief Judge Jacobs seemed eager to focus on whether DOMA should be considered under rational basis or heightened scrutiny.