Then Comes Marriage (24 page)

As I sat listening at the counsels' table, I began wondering: Was it possible that Chief Judge Jacobs was actually considering whether to rule on heightened scrutiny? No federal court had ever done that in a gay rights case, so this was an exciting—and unexpected—development. We could win our case either way, but we were pretty much guaranteed to win if the panel decided to apply heightened scrutiny to DOMA.

When it was my turn to step to the podium, I was prepared to take any opportunity I could to urge the panel in that direction. But first, I wanted to open by sending a specific message to Chief Judge Jacobs. After all, he was the judge who, in an earlier talk at the Federalist Society, had criticized lawyers who “use public interest litigation to promote their own agendas, social and political.” He obviously did not approve of cases brought solely to advance social causes, so I wanted to make clear that he understood that this was not that type of case.

Good morning. This case presents a single question, is Section 3 of the Defense of Marriage Act, or DOMA, unconstitutional as applied to Edith Windsor, an eighty-three-year-old lesbian widow who had to pay a $363,000 estate tax bill and wants her money back. Judge Jones held that it was.

This case was about Edie Windsor and an unfair tax burden, no more, no less. I went on to argue that “this case is not about the federal right to marry. It is about circumstances where states define marriage, and where DOMA explicitly said we are going to leave that to the states.” In dividing up our oral argument time, we had decided that Stuart, arguing for the United States, would address the heightened scrutiny question, but I did manage to make a few salient points when Judge Christopher Droney asked me which level of heightened scrutiny (strict or intermediate) applied here.

[W]e believe that being gay or lesbian is closer to being an African American than it is to being—I hate to get so personal about this, than being a woman, because there is nothing about being gay or lesbian that has anything to do with an individual's ability to perform in society and that's essentially what I believe the courts are looking at . . .

When the oral arguments were over, I felt pretty confident that we would win—and now there was even a sliver of hope that we might win on heightened scrutiny. If that happened, it would likely propel our case directly to the Supreme Court. If, that is, the decision came down quickly enough.

Three weeks later, on Thursday, October 12, I was sitting in my apartment slogging through a tedious task. Each October, Paul, Weiss partners are required to submit a report to all the other partners at the firm describing everything they did in the previous year. Those annual reports are then circulated to each of the other Paul, Weiss partners so that everyone can read them. I'm generally not a procrastinator, but I hate doing this report and always put it off until the last possible minute, so I had stayed home that morning in order to force myself to get it done.

When my phone rang, I stopped what I was doing to pick it up. It was Colleen McMahon, the former Paul, Weiss partner who had led the Jury Project and introduced me to Chief Judge Judith Kaye all those years ago. Colleen was now a federal district court judge and a close friend.

“Robbie, what in the hell are you doing at home?” she asked me.

“I'm writing my report,” I said, confused as to why she was asking.

“The Second Circuit has ruled,” she shouted. “You won.”

What?
This did not seem possible. After all our weeks and months of rushing, rushing, rushing, I was caught totally off guard by how quickly the Second Circuit had released its decision. Releasing an opinion just three weeks after oral argument was insanely fast, even for New Yorkers.

To my shock and delight, the court had ruled for Edie on the basis of heightened scrutiny, the first federal circuit court decision ever to explicitly apply that standard to a law that discriminates against gay people. As Jaren would later put it, “No judge, much less no conservative judge, had ever said heightened scrutiny should apply to sexual orientation. And here was this older, white male conservative judge doing it. He just said, ‘Of course this applies.' And he was right.”

As I raced through Chief Judge Jacobs's opinion, I was stunned at its eloquence and how persuasively it advanced the arguments for our side. The court's opinion declared it “easy to conclude that homosexuals have suffered a history of discrimination.” That history was unconnected to gay people's worth, for while there are “some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual's ability to contribute to society, at least in some respect,” being gay “is not one of them.” The court's opinion also recognized that “there is nothing amorphous, capricious, or tentative” about being gay, thereby rejecting any suggestion that sexual orientation was a choice. And finally, the court answered the question of whether gay people “have the strength to politically protect themselves from wrongful discrimination.” They did not, the court declared; gay people “are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

Assessed under this heightened standard, DOMA had no chance of surviving. Even the other side had admitted as much, as Judge Jacobs wrote: “At argument, BLAG's counsel all but conceded that [the] reasons for enacting DOMA may not withstand” heightened scrutiny. This opinion was a resounding affirmation that laws that treated gay people differently simply because they are gay needed to be scrutinized more carefully by the courts.

Judge Jacobs also demolished the “slutty heterosexuals” argument—the very argument that Judge Robert Smith had employed in 2006, when he wrote the
Hernandez
opinion denying gay New Yorkers the right to marry. Six years had passed since that decision, enough time for another conservative, Republican-nominated New York judge to deem the argument nonsensical in the context of DOMA:

DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.” Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

DOMA is therefore not substantially related to the important government interest of encouraging procreation.

In a paragraph foreshadowing one of the major arguments that would be made in the marriage equality cases post-
Windsor
, Chief Judge Jacobs concluded that
Baker v. Nelson
, a 1971 case in which two gay men in Minnesota sought to marry, that the Supreme Court had dismissed for want of a substantial federal question, did not foreclose Edie's case: “Even if
Baker
might have had resonance for Windsor's case in 1971, it does not today . . . In the forty years after
Baker
, there have been manifold changes to the Supreme Court's equal protection jurisprudence.”

In his concluding point, Jacobs dispatched in a single paragraph the argument that gay people should not have the right to marry out of a respect for either religious beliefs or “tradition.” He even inserted this zinger at the end, referring to St. Paul's Chapel across the street from the federal courthouse in Manhattan:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal
or
state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple's marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

I did not know whether to laugh, cry, or shout with joy. The opinion was brilliant, even though Chief Judge Jacobs clearly had rushed to draft it. He had included almost nothing about the facts of the case, which was unusual, and the first printed opinion of the case even had different typefaces for the majority opinion and the dissent. The court had raced to get this decision out, and given the DOMA petitions at the Supreme Court, I believed I knew why.

Now that
Windsor
had its circuit court decision—and a decision that invoked heightened scrutiny to boot—our case became the front-runner to be heard by the Supreme Court.
Gill
was the only other case with a circuit court decision, but it was likely that Justice Kagan would have to recuse herself from hearing it. In an instant, all of our hurrying and fretting and nudging had paid off. Now, if the Supreme Court decided to take a DOMA case, it would most likely be
Windsor
.

One week after the decision, Sri Srinivasan called me to discuss the latest DOMA case “rankings.” We had been planning to file a new brief with the solicitor general's office, but Sri told me that “without being definitive, given our policy, I don't think you need to be filing anything. We are planning to file a supplemental brief tomorrow.”

“Great,” I said. “And what will our new ranking be?”

“I believe you will be perfectly pleased,” Sri replied. He told me that their prior reasons for not preferring
Windsor
had been “taken care of” by the Second Circuit decision, and we then went on to discuss a few points about the opinion, but the one thing that stuck in my mind after I hung up the phone was that phrase: “perfectly pleased.”

On October 26, the solicitor general's office filed its brief recommending that the Supreme Court take
Windsor.
Our whole team was jubilant, and in the midst of all the high-fiving at the office, I made sure to call Pam Karlan at Stanford. “Did you see the brief?” I said.

“I'm perfectly pleased!” she said.

Now we had just one more step to get to the Supreme Court: the justices had to actually agree to hear our case.

THE SUPREME COURT
is a secretive and occasionally mysterious institution. It is difficult, if not impossible, to know what goes on behind closed doors, so at that point all we could do was hope that when the justices met to decide which DOMA case to take, they would choose Edie's.

These meetings, called conferences, typically happen a few times a month during the Supreme Court's term, which runs from October to June. The justices meet in a private room at the Court and discuss the cases up for consideration, and if four justices vote to hear one case, it will be heard. The justices can also decide to combine more than one case on the same issue, lumping them together and letting the attorneys sort out among themselves who should make the oral arguments.

We had been advised that the justices would be considering the four DOMA cases at their November 20 conference. So that afternoon, a group of us—including Edie, of course—huddled together in a windowless Paul, Weiss conference room equipped with a big screen. Some people had brought in their laptops, which were slightly faster than the big-screen Internet setup, and everyone kept refreshing the SCOTUSblog home page to get the announcement. It felt a little absurd to be getting such important news from the Internet, but we knew that SCOTUSblog would have the information first. So there we sat, all of us hitting
refresh, refresh, refresh
or staring at the big conference-room screen until our eyes were bugging out of our heads.

And then the announcement! Our excitement was snuffed out in an instant as we read that the justices had declined to make any decision, punting the DOMA question to their next conference. It is not uncommon for the justices to take several conferences to decide whether to hear a case, but that knowledge did not make the waiting any easier. We all shuffled back to our offices, deflated.

The next conference was scheduled for Friday, November 30, and just as before, we all gathered in the windowless conference room.
Refresh, refresh, refresh
. . . and . . . here we go! Once again, no decision.

At this point, Edie was getting pretty frustrated. What was taking so long? We knew that the Supreme Court was inclined to take a DOMA case, partly because Justice Ruth Bader Ginsburg had said as much in a September appearance at the University of Colorado at Boulder. In response to a student's question about equal protection for gay men and lesbians, she replied that she could not answer that question, as “I think it's most likely that we will have that issue before the Court toward the end of the current term.” Because it is pretty rare for justices to give such hints, her statement was seen as confirmation that the court was planning to take a DOMA case.

It was possible that the justices needed more time to consider procedural questions. Would they hear the DOMA case based on the merits only? Or would they decide to consider the jurisdictional issue—meaning whether the Court even had jurisdiction in this case, given that the DOJ had declined to defend and BLAG had stepped in? The justices were not simply deciding whether they would take a case and which one it would be; they also had to decide which legal questions they wanted to answer.

And of course the justices were also discussing another high-profile gay rights case at the same time. Ted Olson and David Boies had won their Prop 8 case,
Hollingsworth v. Perry
, in the Ninth Circuit on February 7, 2012, so it was also up for consideration. Although both cases were about marriage equality, the issues in
Perry
were very different from ours so we knew that the justices would not combine the cases. But would they choose to hear
Perry
at all? And if so, would they schedule our cases to be heard around the same time? All these questions needed answers, and the justices appeared to be taking their time in answering them.

The next announcement was scheduled for Friday, December 7, and once again we all gathered in a conference room at Paul, Weiss. Our whole team was present, as well as James Esseks and Edie. Surely we would get a decision. If not, I thought that Edie and I might both collapse from stress and anticipation.