Then Comes Marriage (27 page)

One tricky element, which our team debated at length, was how to make it clear that DOMA was intentionally discriminatory without branding all the many legislators who voted for it—or the president who signed it into law—as prejudiced against gay people. I did not want the other side to be able to accuse us of finger-pointing, which was the term I used to describe a favorite strategy of the pro-DOMA side. The essence of this argument is that by asserting (as was plainly the case) that some of the people who supported DOMA may not have had the best motives, we were somehow branding everyone who voted for the statute in 1996 a bigot or homophobe. We needed to convey that DOMA was passed solely for the purpose of treating gay people differently, whether out of fear, animus, bigotry, misunderstanding, cynical political calculation, or some combination of the above, without seeming to blame the legislators personally.

Pam came up with the brilliant idea of including the most vitriolic quotes from the 1996 debate over DOMA—but, contrary to standard Bluebook citation format, not to identify who had actually said them.

DOMA sped through Congress in large part because of the strong views many members of Congress expressed at the time about the morality of being gay. The House Report explained that refusing federal recognition to marriages of gay couples reflects “moral disapproval of homosexuality.”

During one day's debate, a Representative declared that homosexuality “is based on perversion, that it is based on lust.” Another Representative charged that homosexuality was “inherently destructive.” At one point, the tenor of the debate led one Representative to observe: “Words have been thrown around. . . . Today, I wrote down . . . ‘promiscuity, perversion, hedonism, narcissism . . . depravity and sin.' ”

The congressional debate was also filled with predictions of dire consequences if same-sex relationships received legal recognition. One Representative cautioned that marriages between gay couples would “destroy thousands of years of tradition which has upheld our society.” Another Representative exclaimed that “[w]e as legislators . . . are in the midst of chaos.” Yet another Representative stated that marriages of gay couples legitimized “unnatural” behavior. Two Representatives predicted that failure to pass DOMA would lead to “discussing pedophilia,” and allowing marriage between “two men and one woman, or three men, four men, or an adult and a child.” And another Representative warned that no culture that has ever embraced homosexuality has ever survived.

Although Congress did not invite testimony concerning the programmatic or other implications of DOMA, it did schedule witnesses who predicted that the failure to pass DOMA would lead to marriages “between parents and their grown children” and claimed that supporting DOMA was “no more ‘homophobic' than it is ‘sibling phobic' to oppose incest, or ‘animal phobic' to want humans to make love only to their own species.”

We also wanted to make it clear to the justices that the animus displayed in these quotes was not a mere relic of the past. If anything, as evidenced by groups like the Westboro Baptist Church, it was alive and well and as colorful as ever, as we explained in footnote 3:

The continued antipathy to gay people is reflected in the tone and content of many of the amicus briefs submitted in this case in support of BLAG.
Amici
referred to gay men and lesbians as immoral, sinful, radically disruptive to society, abhorred and opposed and a vector of injury and disease. One set of
amici
argues that overturning DOMA will make it more socially acceptable for fathers to leave their families. Another compares the recognition of Ms. Windsor's marriage by New York to the Fugitive Slave Act that forced residents of New York to assist their slave-state neighbors to return slaves who had escaped, back to slavery. Still another analogizes same-sex marriage advocates to pro-slavery advocates of the 1850s.

“Radically disruptive.” “A vector of injury and disease.” “Pro-slavery.” Reading the other side's briefs, you would have thought gay people were a robotic force of pure evil seeking to wipe out civilization as if in one of the superhero or
Transformers
movies that my son Jacob loved. We wanted the justices to see at a glance how shrill and irrational these pro-DOMA arguments were. And from there, our job was to make the case why the statute was unconstitutional.

We argued that the Court should consider DOMA under heightened scrutiny, as the Second Circuit had done, even though we were under no illusion that the justices would actually do that. We therefore needed to make sure that our argument for striking down DOMA under the less-stringent rational basis standard was bulletproof. So we created what I dubbed the “checklist section”—six pages in the middle of our brief that outlined three simple, straightforward red flags for why the Court should be concerned about the constitutionality of DOMA and should rule our way, even under rational basis review.

First, the purpose itself of DOMA was illegitimate. The law, we noted, was passed out of fear or dislike of the unknown: “The very language of its title indicates that DOMA was enacted to defend or ‘guard against' people who appear to be different.” In constitutional terms, this is called animus, and laws that are infected by such animus are not legally valid.

Second, DOMA had broad impacts that Congress clearly never anticipated. In other words, DOMA targeted gay people and then imposed upon them “disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate governmental interest”:

By amending the Dictionary Act, rather than any specific federal program, DOMA categorically disqualifies gay people who are married from all federal rights, privileges, and obligations of marriage, creating a sweeping exclusion that is disconnected from any specific rational justification . . .

The fact that DOMA is
not
a discrete or tailored statute, but instead sweeps across over 1,100 federal statutes that confer benefits or impose responsibilities on married people strengthens the conclusion that it fails rationality review.

Third, throughout U.S. history, the states, not the federal government, have always had the right to determine who can marry. The passage of DOMA marked the first time that the federal government chose to ignore the states' decisions in this area. “Statutes provoke suspicion when they upset the relationship between the federal government and the states in novel or unusual ways,” we wrote. “Sometimes the most telling indication for a severe Constitutional problem will be the lack of historical precedent for Congress' intervention.”

Each of these three reasons was different, and each of them offered a legitimate reason why DOMA should be subjected to, if not heightened scrutiny, at least more careful consideration by the Court. My hope was that in enumerating them so plainly in the checklist section, we could give the justices who were expected to vote our way plenty of ammunition to sway the others—in particular, of course, Justice Kennedy.

We ended our brief by asserting that the facts of Edie's case only reinforced the conclusion that DOMA was unconstitutional:

In her complaint, Ms. Windsor challenged the marital deduction generally available to married couples. If Congress had passed a discrete statute simply excluding married couples who are gay from the benefits of the estate tax's spousal exemption, it would be impossible to discern a rational connection between that exclusion and any of the interests that have been advanced on behalf of DOMA.

For example, even if the federal government has a legitimate interest in encouraging responsible procreation by straight couples, it would be irrational to think that denying gay couples the benefits of the estate tax deduction would do anything to further that interest. Hardly any straight couples—especially straight couples of an age where their relationship still runs a risk of “produc[ing] unplanned and unintended offspring”—would make decisions about “responsible procreation” based on their eligibility for a deduction from an estate tax likely to be levied only decades later and only on a small fraction of the population. And none are likely to be influenced in their immediate procreative or childbearing choices by how that tax is or is not levied on gay people . . .

Finally, while BLAG repeatedly argues that the Court should not “constitutionalize” the issue because “the democratic process is at work,” the question presented here is a narrow one: is there a sufficient federal interest in treating married gay couples differently from all other married couples for all purposes under federal law? There is not. By suggesting that the Court cannot or should not answer this question, BLAG fails to recognize that the protections of the Fifth Amendment are abiding. DOMA is impossible to reconcile with the promise of impartial governance that the Constitution's guarantee of equal protection extends to all of our Nation's citizens.

After weeks of migraines, sleepless nights, and endless rewrites, we finally had a brief we were happy with, and on Sunday, February 24—two days before the filing deadline—our whole team gathered in a huge conference room at Paul, Weiss for the final read-through. We had poured our collective blood, sweat, tears, and souls into this document, and this was our last chance to catch typos or any odd-sounding sentences. We decided that the best way to do so was to actually read each and every word of the brief out loud.

That day, Rachel was busy with another project and our plans for child care fell through. So I brought six-year-old Jacob with me to a conference room at Paul, Weiss, handed him an iPad loaded with movies, and placed an oversized pair of earphones on his head. Then, with the whole team seated around a conference table, I asked everyone to read one sentence each, going around the table, as if we were reading from the script of a new play by my friend Terrence McNally. This turned out to be a surprisingly effective way to read through the brief, and it ended up being one of my favorite moments in the whole case.

The brief was seventy-seven pages long, so the process took us a little over three hours. As we were reading, Jacob watched his movies, and every once in a while he would get so excited by something he had seen on the screen that he would want to share his thoughts about the scene with all of us. He quickly settled back down each time, but just as we reached the very end of the brief, Jacob actually leapt off his chair in the middle of one of his favorite Tintin movies and exclaimed, “The problem is, they're
running out of gas
!” We all cracked up. It was the perfect note to end on.

We filed our brief on February 26, 2013, and that same day, after reading the final brief, Colleen McMahon sent me a note. “The editing is simply superb,” she wrote. “There's not an extra word or phrase. It's as close to flawless as any brief I've ever read.”

This was extraordinary praise coming from someone I admired as much as Colleen, not to mention a federal judge, so I forwarded the note to Pam with the comment, “OK, I'm ready to retire.”

Pam replied with her usual dry wit and an always-welcome reference to one of my favorite Broadway musicals: “What a wonderful email,” she wrote. “And did you ever see Sondheim's
Merrily We Roll Along
? One of the characters says something like ‘and after you hear this song, you'll want to swallow poison because there will be nothing left to live for.' Seriously, like the videos say, ‘Things get better.' This is a high point, but it won't be the only one.”

13

TO DE-GAY OR
NOT TO DE-GAY

O
n the morning of March 4, Pam boarded a flight in California to come to New York City for our first moot court session. She had a connecting flight in Charlotte, North Carolina, and when she turned on her cell phone in the airport there, she saw it lighting up with multiple voice mail messages. As she started listening to them, she realized that they all said essentially the same thing—“I'm so sorry, Pam,” or “Pam, I'm terribly sorry.” The problem was, Pam had no idea what all these people were talking about.

She called me at the office, and when I picked up the phone, I too said, “I'm so sorry.” At this point, completely exasperated, Pam asked, “Why in the world is everyone feeling so sorry for me?”

It turns out that while Pam had been in the air, the Supreme Court had issued an order dividing up the lawyers' time in the upcoming
Windsor
oral arguments. For the merits arguments, as the parties had already agreed and proposed to the Court, BLAG would get thirty minutes, and the solicitor general and I would each get fifteen minutes. But for the jurisdictional issues, a Court-appointed Harvard Law School professor named Vicki Jackson would get twenty minutes, BLAG would get fifteen minutes, the solicitor general would get fifteen minutes, but counsel for Edie Windsor would not get any time at all.

The Court had taken the step of appointing Vicki Jackson to argue as amica (or “friend”) for the Court because everyone in the case agreed, albeit for different reasons, that the Court did have jurisdiction to resolve the constitutionality of Section 3 of DOMA. President Obama and the DOJ had taken the position that, while they agreed DOMA was unconstitutional, out of a respect for Congress they would not give Edie her money back until the Supreme Court had decided the issue in her favor. Edie, of course, wanted the Supreme Court to decide the case so that she could get her refund check from the IRS. And BLAG took the position that it was the appropriate party to defend DOMA in court and that the decision of the Second Circuit should be reversed. So the Supreme Court appointed Vicki Jackson to be the one lawyer to argue that there was no jurisdiction.

In other words, the Court had decided not to allot any time at all for Pam to argue the issue. In terms of the case, this was probably a good sign, since it seemed unlikely that the Court would find there to be no jurisdiction if they were not going to give Edie any argument time. But it was incredibly disappointing that Pam wouldn't get to participate in the oral argument.