Then Comes Marriage (25 page)

As James describes it, “We were just sitting there and waiting and waiting and waiting, and we're all frustrated and antsy and we can't keep still.”
Refresh, refresh, refresh
. . . And then someone said the magic word: “Granted.” Jubilation broke out in the conference room. The justices had chosen to hear not only
Perry
but
Windsor
. We were heading to the Supreme Court!

Someone brought in a bottle of champagne, and we popped the cork and poured it into water glasses. Since Edie is allergic to champagne, someone went out to find vodka for her. In the meantime, she had a sip of juice while we toasted, ecstatic that three and a half years after she had experienced the crushing indignity of having her marital relationship denied, her case would be heard by the highest court in the land.

We had a strategy prepared in anticipation of this moment and had to start e-mailing and making calls to put it into motion. But before that happened, there were two important people I needed to speak to first.

The first call I made was to Mary Bonauto. Mary had worked harder than anyone to defeat DOMA, and the truth is, if her
Gill
case had not had the Justice Kagan recusal problem, it most likely would have been the DOMA case going to the Supreme Court. Mary had been instrumental in the entire campaign to topple DOMA, and her help would be critical at this stage as well. “Mary,” I said, “would you help us run the amicus effort?” I knew that Mary would have the insight and connections to help us compile an outstanding selection of amicus briefs, and I wanted her to be part of our team. Fortunately, she said that she would be happy to do it.

The second call I made was to Pam Karlan. Pam had already been a tremendous help in our effort to get cert. Now, with
Windsor
heading to the Supreme Court, we were going to need her insights, intelligence, and sense of humor more than ever. I dialed her number, and when she picked up, I yelled, “Get ready to get your hair blown out! We're going to Washington!”

That evening, Rachel and I hosted a pizza party at our apartment to celebrate. Our whole Paul, Weiss team came—Julie, Josh, Jaren, Andrew, and Alexia; James Esseks was there, and Emily Giske, hero of the New York marriage equality legislation, along with her wife, Annie Washburn. Edie was there, too, sipping a vodka on the rocks, her blond bob as perfect as ever. Brendan Fay, the activist who had helped Edie and Thea get married back in 2007, was there, too, as was Eddie DeBonis, Brendan's friend who had originally put Edie and me in touch in the first place.

In fact, this was the first time that Edie, Brendan, Eddie, and I had ever been in a room together, so we started talking about how our paths had all come to cross in this fantastically auspicious way. We found out in the next moment that there had been a little less fate in our being brought together than Edie and I had originally thought when Eddie said, “I have a confession to make.” At the time Eddie had asked me to consider taking Edie's case, he told Edie he had contacted several lawyers on her behalf. As we all stood together in the middle of this celebration, he said, “Now I can tell the truth. Robbie is the only person I called.”

We all clinked glasses—one of many times that night. It was one of those rare, fleeting moments in life when you are present enough to know that you are part of something momentous, something far larger than yourself. I was still flying high a few hours later when I checked my BlackBerry to find an e-mail from Marty London, the Paul, Weiss partner who, all those years ago, had entrusted me with that big Tokyo case when I was an eager young associate. Marty had become my mentor and great friend. He had come to cheer for me during the Second Circuit argument. Marty's e-mail made me laugh, even though it contained no text and only this subject line: “Ok, babe, on to the Show!”

12

BE OUR GUEST

N
ot long before the justices agreed to hear
Windsor
, I had an important conversation with Pam Karlan. We knew that our case was probably the favorite at that point, and for the first time I started thinking seriously about how it would feel to have the privilege of arguing Edie's case before the Supreme Court. I was thrilled, of course, but I was also too neurotic and compulsive not to have second thoughts.

While I had confidence in my legal skills, I was born and bred as a Paul, Weiss trial attorney and was not a repeat player at the Supreme Court. I was also extremely conscious of the fact that the Supreme Court is unlike any other court in America, and that any lawyer who lacks experience bringing cases there is probably at a distinct disadvantage. In fact, just a few weeks earlier, I had tortured myself by reading an article in which Justice Kagan seemed to say that lawyers who have never argued a Supreme Court case probably should defer to those who have, an assessment that had caused me more than a few nights of insomnia. As much as I wanted to argue this case, I had an obligation to Edie Windsor to provide her with the best legal representation possible. And as hard as it was to acknowledge, perhaps this meant that I should not be the one to argue her case.

I called Pam, whose instincts and advice I trusted completely by then. “Listen,” I said, “I want you to know that I am considering whether or not to argue our case if we get to the Supreme Court. If I don't do it, I'm going to recommend to Edie that you do.” I took a deep breath. “Given that,” I said, “what do you think I should do?”

Most members of the Supreme Court bar, if handed such an opportunity to argue a historic case like
Windsor
, would not think twice before answering yes. In fact, many lawyers would probably angle to take the case over, whether it was offered to them or not. But Pam is not like most other attorneys, or even most other people for that matter. She has incredible integrity and is enormously generous not only with her time and mind but in ensuring that those who work with her receive their moment in the sun.

“Robbie, there is no question that you should argue it,” she said. “This is your case. You know it better than anybody else.”

Yes, Supreme Court arguments were different from those in other courts, Pam explained, but there was nothing that I could not learn or adapt to. For one thing, SCOTUS oral arguments were shorter, and they tended to be more about playing defense rather than actively persuading the justices to vote one way or another. In most cases, the justices have already made up their minds by reading the briefs; the oral arguments are really about damage control. Occasionally, one justice might try to lobby another through the questioning at the oral argument, but that was not really a strategy lawyers could plan for. “It's really a conversation among the justices more than anything else,” Pam told me. “We'll make sure that you're fully prepared.”

Pam had argued seven cases in front of the Supreme Court and had second-chaired almost two dozen more. If she had said the word, this oral argument would have been hers. But instead she was a total mensch, telling me, “You are perfectly capable of doing this. Whatever you don't know, you can learn.”

After this conversation with Pam, I reported what she had said to Brad Karp, the chair of Paul, Weiss. Brad told me that I would have his unwavering support, which certainly helped to assuage at least some of my anxiety. I now felt at least a little more confident about arguing before the Supreme Court, although I wished there were some way that Pam and I could both argue Edie's case together.

A few weeks later, when the Supreme Court granted cert, the justices handed us that opportunity. The order instructed us to brief and argue not only the question of whether DOMA was constitutional, but a new question as well: “Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.” Essentially, the justices wanted us to address whether the DOJ's decision not to defend DOMA meant that the Supreme Court no longer had jurisdiction (or authority) to hear Edie's case.

This jurisdictional issue was a bit of a curveball. I was not sure how to tackle the question, but fortunately Pam had plenty of expertise in this area, so she immediately volunteered to work with her Stanford students to prepare the brief on it. Because the justices were asking us to address two questions, we could also divide up the oral argument. After consulting with Edie, I asked Pam if she would be willing to argue the jurisdictional question in front of the justices. I was thrilled to make this offer, not only because she so richly deserved it, but also because she would be saving me from having to brief and argue a completely new issue that I knew little about. Pam readily agreed to do it.

I felt extremely lucky and grateful to have Pam on our team, all the more so because starting in January, she was not even supposed to be in the United States. When the Supreme Court agreed to hear
Windsor
on December 7, Pam was less than a month away from flying to Italy with her partner, Viola Canales, for Stanford's winter quarter. She had been taking Italian language classes for months and was really looking forward to teaching Stanford undergraduates in Florence. Of course she could have worked with us from Italy via computer, but the four Stanford students she wanted to bring into the case (Elizabeth Dooley, Michael Baer, Bailey Heaps, and Nico Martinez) could not have done so without Pam. She wanted to give those students the opportunity to work on a major Supreme Court case from the ground up. And she and Viola knew how important the case would be for LGBT rights. So Pam called the head of the Italian program and got permission to postpone her stint in Florence.

Pam and the students went to work on the jurisdictional brief, while the Paul, Weiss and ACLU teams, James, and I started working on the merits brief. And, of course, Mary Bonauto was working to organize our amicus briefs, a gargantuan task that required not only great effort and organizational skills but great tact as well, because everybody and their grandmother suddenly wanted to file one for us, whether we believed it helped our case or not. We needed to make sure that we put together a meaningful cross-section of arguments without overwhelming the justices—a task at which Mary proved to be extraordinarily adept. Unfortunately for the justices, but lucky for us, BLAG did not have the same success on the amicus front.

ON THE MORNING
of Saturday, December 8, less than twenty-four hours after the Supreme Court granted cert in our case, I received an e-mail from a woman named Margie Phelps. “Dear Counsel,” it read. “Pursuant to Supreme Court Rule 37, I am writing to request your consent to my client, Westboro Baptist Church, filing an amicus brief in the above case . . . Please advise if you will grant your consent.”

In Supreme Court cases, both sides almost always give permission for amicus briefs to be filed, and while most lawyers file a letter with the Court granting blanket permission, Pam and I had decided that we wanted to wait to approve each request individually so that we would know exactly who would be filing on the other side.

“Please advise if you will grant your consent.”
Are you kidding?
I thought when I read the e-mail. As Lumière sings in the Disney movie
Beauty and the Beast
(one of Jacob's and my favorites), “
Be our guest
.” We definitely wanted the Westboro Baptist Church to file a brief in support of the constitutionality of DOMA. Westboro was the infamous church in Topeka, Kansas, whose parishioners showed up at protests and funerals bearing “God Hates Fags” posters. Church members had picketed the funeral of gay hate-crime victim Matthew Shepard, but they were all over the map: they had also picketed or otherwise protested the funerals of the victims of the Sandy Hook Elementary School shootings, the victims of the Boston Marathon bombing, and an assortment of U.S. soldiers killed in Iraq. Most reasonable people considered the Westboro congregants to be hateful, if not downright crazy. Of course, that was exactly the kind of opposition we wanted.

I forwarded Phelps's e-mail to Pam without comment, and she shot back, “I wonder whether the argument will be that national security requires reversal [of DOMA] because otherwise God will continue to kill American troops overseas. Having these folks file will remind Justice Kennedy of what bigots think.”

Five minutes later, Pam sent me another note that made me laugh out loud: “Plus, she sent it on Shabbat!!”

Pam's legal expertise was vital to our case, but we also grew to depend on her wicked sense of humor. In the midst of a difficult moment or a confounding problem, she could always lighten the mood with a wry joke. And she was at her wittiest in response to the blizzard of bizarre amicus briefs filed in support of the other side.

On January 24, 2013, she sent me an e-mail with the subject line “Calling Dr. Freud” to point out a “staggeringly badly written sentence of the brief filed by psychiatrist Paul McHugh: ‘Professor Diamond's seminal research on the fluidity of female sexuality was summarized in a widely-praised book published by Harvard University Press.' This is what George Orwell was writing about in ‘Politics and the English Language' when he warned against using dead language.”

On January 29, after reading the brief filed by the group known as Parents and Friends of Ex-Gays & Gays (PFOX), she begged, “Promise me if I start to write like this that one of you will fly out to Stanford and smother me.” In response to the brief filed by Helen Alvaré, a conservative Catholic law professor who was a well-known opponent of birth control, she wrote, “You'd think the fact that we don't ever use contraception would at least warm this lady's heart toward us.”

The list of amicus briefs filed in support of DOMA was long, with most coming from expected sources: the National Association of Evangelicals, Concerned Women for America, the National Organization for Marriage, the Family Research Council, the Coalition for the Protection of Marriage. These organizations had been fighting against marriage equality for years, and their arguments were variations on the same predictable themes. To a certain extent, this was what we would be doing, too—collecting amicus briefs from organizations such as Freedom to Marry, the Family Equality Council, Empire State Pride Agenda, Lambda, GLAD, and others who had spent years advancing the cause of marriage equality. But we wanted to reach beyond that circle, too—far beyond it. We decided that it was strategically important to pursue amicus briefs from organizations that were not normally associated with LGBT rights to show the breadth and depth of support for what was, at its core, not just an LGBT issue but a human rights issue.