Then Comes Marriage (26 page)

Mary called this going after the “unusual suspects,” and we went after them hard. We already knew we could get amicus briefs from LGBT churches, but I decided that we needed to go after the mainstream churches and religious organizations. Wouldn't that carry even more weight? In my view, one mistake that the LGBT rights groups had made in the past was to cede religion to the antigay side. The United States Conference of Catholic Bishops were filing an amicus brief in support of DOMA, so we decided to approach the bishops of the Episcopal Church, hoping to persuade them to file in support of Edie. The church's New Hampshire diocese had elected openly gay Gene Robinson as a bishop in 2003, so they were not strangers to taking a pro-equality stance. Even so, this was a mainstream church, not an activist group.

Thanks in large part to Mary's tireless efforts, we ended up with an impressive list of amici for the mainstream religious amicus brief. Not only did the Bishops of the Episcopal Church in ten states and Washington, DC, sign on, but nineteen other churches did too, including a branch of the Evangelical Lutheran Church in America, the United Church of Christ, and branches of Methodist, Presbyterian, and Quaker churches, as well as a number of Jewish congregations. Most impressive, though, was the fact that we were able to persuade the Jewish Theological Seminary (JTS) of America to sign on.

It is not unusual for Reform Jewish organizations to support gay rights, but JTS is at the center of Conservative Judaism. Not only that, but JTS had never filed an amicus brief of any kind at the Supreme Court and had only recently begun admitting openly lesbian and gay rabbinical students, so this really was a coup. It had taken many hours of lobbying to get JTS on board, and it never would have happened without the help and efforts of the rabbi who had married Rachel and me back in 2005, Jan Uhrbach.

Jan had already demonstrated great courage in fighting for gay rights over the years, even though she is not gay herself. Before becoming a rabbi, Jan had gone to Yale Law School and had made partner at a First Amendment law firm, so she was familiar with the legal issues. As a Conservative rabbi, she was not always in the majority, yet she was never cowed or quieted. When she officiated at Rachel's and my wedding, the Conservative movement had not yet approved of its rabbis doing so. She also fought for JTS to admit openly gay and lesbian students and for the ordination of gay rabbis. At the time, these were pretty radical positions for a Conservative rabbi to take, but Jan believed that God wanted gay men and lesbians to be treated fairly and justly, and she was not afraid to make her views known. She even published an op-ed in the
Washington Post
entitled “A Conservative Rabbi's Case for Marriage Equality,” in which she wrote:

My support of marriage equality is an expression of my faith. It arises from fundamental principles found in the Hebrew Bible and the rabbinic tradition, among them, that each human being is made in the divine image, that affording full dignity to every person is a religious obligation, and that we are commanded to pursue social justice . . .

Jan and her friend Rabbi Julie Schonfeld, head of the organization of Conservative rabbis known as the Rabbinical Assembly, spent hours thinking about how we might get the Jewish Conservative Movement groups to sign in support of the amicus brief. My law partner Daniel Beller, who serves on the board of JTS, made calls. Most Conservative Jewish congregations at that time still did not allow lesbians and gay men to marry in their synagogues. In theory, though, they could still support marriage equality as a civil right, rather than a religious one. The mainstream religious brief, which was written by Jeffrey Trachtman, a partner at the law firm of Kramer Levin, opened with this very point:

While
Amici
come from faiths that have approached issues with respect to lesbian and gay people and their families in different ways over the years, they are united in the belief that, in our vastly diverse and pluralistic society, particular religious views or definitions of marriage should not be permitted to influence who the state permits to marry or how legally married couples are treated by the federal government.

The brief then reiterated the point Jan had made in the
Washington Post
: “A vast range of religious perspectives affirms the inherent dignity of lesbian and gay people, their relationships, and their families. This affirmation reflects the deeply rooted belief, common to many faiths, in the essential worth of all individuals. . . . With time, and across traditions, religious Americans have affirmed that the dignity of lesbian and gay people logically and theologically follows from the premise that all persons have inherent dignity.”

And in case it was not crystal clear, the brief went on to note that striking down DOMA would not result in any churches or synagogues being forced to perform marriages of which they disapproved, including those between gay people:

All religions would remain free—as they are today . . . to define
religious
marriage in any way they choose. . . . [By] affirming the [Second Circuit's decision], this Court will ensure that civil law neither favors nor disfavors any particular religious viewpoint, and it will leave individual faith communities free to determine for themselves whether or not to add religious sanction to particular unions.

Accumulating this vast array of mainstream religious groups in support of our case was a tremendous achievement—one that was bound to surprise many people. But that was only one part of our Supreme Court strategy.

We were also fortunate to have an amicus brief filed by 172 members of the House and forty members of the Senate who wanted to see DOMA overturned and to make it clear that BLAG was not representing their views. To have that many congressional signatories on the brief was itself an important symbol of how far we had come, especially since a number of the members of Congress who signed on to the amicus brief had actually voted for DOMA back in 1996.

In addition, we compiled what we called the business brief—an amicus brief signed by 278 employers and organizations representing employers arguing that DOMA was bad for business. Signers included dozens of huge corporations such as Amazon, Apple, Citigroup, Goldman Sachs, Facebook, Levi Strauss, Microsoft, Nike, Oracle, Starbucks, UBS. . . . The list went on and on. Two years after King & Spalding had withdrawn from its DOMA defense just a week after taking the case, the corporate voices calling for equality for gays and lesbians had grown even louder.

Our business brief made the point that DOMA “requires that employers treat one employee differently from another, when each is married, and each marriage is equally lawful. DOMA thus impairs employer/employee relations and other business interests.” Like Alan Morrison's brief on ethics laws—which he also filed at the Supreme Court—it argued against DOMA from an unexpected angle. We wanted to make clear to the justices that DOMA was a terrible law not only for the obvious reasons but for many not-so-obvious ones as well.

One of those less obvious reasons turned out to be utterly heart-wrenching, a perfect illustration of just how irrational and cruel DOMA truly was.

We began hearing from a variety of sources that since the repeal of Don't Ask, Don't Tell, gay military personnel had understandably taken the opportunity to get married. But because of DOMA, the federal government—including the military branches—could not legally recognize those marriages. This restriction had led to tragic, unforeseen consequences: when a gay married soldier was killed, the military was not allowed to acknowledge his or her spouse in any way. They could not call the spouses to notify them of the death. At funerals, they could not hand the flag to the widow or widower. This was agonizing to the Pentagon brass and an insult to the dignity and honor of soldiers and their spouses, values that the military holds dear. But under DOMA, there was nothing anyone could do about it.

I was stunned. It had never occurred to me that gay married soldiers, sailors, marines, airmen, and their families were being demeaned—however reluctantly—during the very rituals that were meant to honor their sacrifice to this country. LGBT advocates had been so thrilled when Don't Ask, Don't Tell was repealed, it did not occur to most of us that the existence of DOMA would continue to haunt gay servicemembers' lives and, worse, their deaths. I knew that we had to brief the justices on this point; what better way to show the inherent irrationality of the law?

We ultimately had two amicus briefs covering this issue. One, filed by Outserve-SLDN, included this heartbreaking true story:

The death of Staff Sergeant Donna Johnson illustrates the real-world impact of DOMA. While on her third deployment in Afghanistan, Sgt. Johnson was killed in October 2012, along with two other married soldiers, when a Taliban suicide bomber drove a motorcycle packed with explosives into their patrol. Because of DOMA, the military did not notify Sgt. Johnson's wife of her death, but instead notified Sgt. Johnson's mother. Sgt. Johnson's wedding ring was not returned to her wife, but was given to her mother along with her personal effects. The flag that draped Sgt. Johnson's coffin was handed to her mother, not to her spouse. And her spouse was denied the spousal death benefits and support services that opposite-sex spouses of fallen soldiers are entitled to receive, including the opposite-sex spouses of the other soldiers killed in the same attack.

The military's inability to notify the spouses of fallen soldiers of their deaths, to return the soldiers' wedding rings to their spouses, or to extend other benefits to compensate military spouses for their loss—solely because Congress disapproves of the gender of their spouses—is indefensible, and an insult to those who give their lives serving this country.

The stories of people whose lives were scarred by DOMA never failed to move me. The treatment of gay soldiers—who had literally given their lives—and their widowed spouses truly shocked my conscience. We could only hope that they would also move the justices—at least five of them, anyway.

GIVEN HOW IMPORTANT
the briefs are in the Supreme Court process, I needed to make our merits brief the most compelling document I had ever written. From the moment that the justices decided to hear
Windsor
, I became obsessed with that task.

The whole team was involved in the process, whether helping with research, talking through strategies, or reading drafts and offering comments. As we came closer to our late February filing date, though, I hunkered down alone. By this point, instead of going into Paul, Weiss, I decided to work in the small room in my apartment I used as a home office, where I wrote and rewrote the document, in order to minimize distractions. For about two weeks, I sat in that tiny room, wearing sweatpants and drinking coffee, hunched over piles of paperwork. I like to edit by hand, so I was surrounded by printouts marked up in pen; I must have rewritten every single word of our brief at least a dozen times.

Ever since we had learned that the Supreme Court had granted cert, my phone had been ringing off the hook with people offering advice. Everyone had an opinion, it seemed, and everyone wanted to be heard. I was certainly open to input, especially since I had never previously been involved in a Supreme Court case. It quickly became apparent, however, that I had to work to separate the helpful advice from the avalanche of random opinions and posturing that suddenly came cascading down upon me. Everyone had a different idea about what arguments we should make (or not make), what cases we should cite (or not cite), and what themes we should emphasize (or not emphasize).

In order to make sure I kept my focus where it needed to be, I wrote the following five words on a Post-it note, which I stuck to my laptop screen: “It's all about Edie, stupid.” This was, of course, a play on the famous line from Bill Clinton's 1992 election campaign: “It's the economy, stupid.” I wanted to make sure that in all the writing and rewriting, all the back and forth about strategy and tactics and angles, I did not lose sight of the single most important part of our case.

To that end, we opened the brief with Edie and Thea's beautiful love story. It is very unusual for a Supreme Court brief to open with a personal story, but I wanted the justices to truly understand the dignity of these women and of their marriage. We wanted the justices to understand in their minds why DOMA was unconstitutional, and to feel it in their hearts as well. At the very beginning of the brief, we described their lives in this way:

In the early 1960s, at a time when lesbians and gay men risked losing their families, friends, and livelihoods if their sexual orientation became known, respondent Edith Windsor and her late spouse Thea Spyer fell in love and embarked upon a relationship that would last until Dr. Spyer's death forty-four years later.

The depth, commitment, and longevity of their relationship and eventual marriage are all the more remarkable given the times they lived through. Dr. Spyer was expelled from college when a campus security guard observed her kissing another woman. Ms. Windsor entered into a brief, and unsuccessful, marriage to a man in the early 1950s because she did not believe that it was possible for her to live openly as a lesbian.

We told the story of Edie's FBI interview, their diamond engagement pin, Thea's long battle with MS, the couple's eventual marriage, and Thea's death. “They spent their last two years together as a married couple,” I wrote. “Dr. Spyer died of a heart condition on February 5, 2009. Grief-stricken, Ms. Windsor suffered a severe heart attack and received a diagnosis of stress cardiomyopathy, or ‘broken heart syndrome.' ” And at that point, because of DOMA, she was forced to pay more than $600,000 in inheritance taxes, solely because Thea was a woman.

We then outlined the history of DOMA.

“We've got to do a better job explaining how different this law is,” I urged our team. “We can't let the other side keep making the argument that DOMA is some ordinary law. It's not.” At the same time, we needed to make the argument in a way that would appeal to the Supreme Court justices—meaning we could not seem like strident, radical activists. In other words, we had to make the argument on their terms.