Then Comes Marriage (29 page)

IN ADDITION TO
the first moot court fiasco, I had plenty of other things weighing on my mind. By this point, I was certain that someone on the other side would ask me whether we thought Bill Clinton was a homophobe, since he was the president who had signed DOMA into law back in 1996. In fact, I'd been worrying about this issue ever since we had filed Edie's case at the district court, which is why I had suggested back then that we try to get President Clinton to file an affidavit for our side. Several of the ACLU lawyers on our team thought that was a bad idea, and although we went back and forth about what to do, I ultimately decided to let it go, since it didn't seem worth the effort at that point.

That is where the matter stood until the Supreme Court granted cert in
Windsor
. I then decided that we really needed to try to get President Clinton involved. I called a friend of mine who is close to the Clintons and, using my best Jewish mother guilt strategy, said, “I need you to ask the president something for me. I can't believe I have the
chutzpah
to say this, but I want you to tell him that, like everyone else, he too is going to have to meet his Maker one day, and I'm sure that he's not proud about signing DOMA into law. But if he's ever going to express that regret, he's got to do it now. Because if he does it after the oral argument, it won't do us any good.”

My friend said that she would pass this along, and on March 7, I was delighted to see that the
Washington Post
was running an op-ed by Bill Clinton entitled “It's Time to Overturn DOMA.” It was a full-throated and moving repudiation of the statute by the very president who had signed it into law.

In 1996, I signed the Defense of Marriage Act. Although that was only 17 years ago, it was a very different time . . . As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles [of freedom, equality, and justice above all] and, in fact, incompatible with our Constitution . . .

When I signed the bill, I included a statement with the admonition that “enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination.” Reading those words today, I knew now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned . . .

Americans have been at this sort of a crossroads often enough to recognize the right path. We understand that, while our laws may at times lag behind our best natures, in the end they catch up to our core values.

This moving statement from President Clinton solved my “Is Bill Clinton a homophobe?” problem. But as I would soon find out, it probably led to other questions at my Supreme Court argument that I had not been able to predict.

A few days later, on March 11, we flew to California, and whatever jittery nerves I was still feeling after the NYU experience were calmed even further once I got to Stanford and watched Pam Karlan in action with her four law students, the same students who had helped write our jurisdictional brief and were now working on a reply to BLAG's opposition to it.

Upon my arrival, I found Pam and her students gathered in a small conference room, their eyes glued to a large screen where the brief was projected. With each section, the students would discuss edits, and Pam would ask questions and guide them. She often had her own views about how the document should read, of course, but the students were true colleagues in developing the arguments and the team worked to reach a consensus. Pam was so dedicated to making sure that her students got the most from the experience that she pulled an all-nighter that night, working on the brief until the early hours of the morning.

Seeing those students working so hard for our case was inspiring, and once the moot court got into full swing, I felt even better. The Stanford moot was incredibly helpful, full of productive comments and constructive criticism from “judges” like Pam's colleague Jeffrey Fisher, without all the odd posturing that had happened at NYU. By the time we finished, I was feeling confident and battle-ready again.
We're going to be okay
, I thought.
I can do this
. I was lucky, however, that the Stanford moot happened before going on to the next one.

We knew going in to the oral arguments that our strategy was very different from the strategy in
Perry
, the case about Prop 8. In fact, that was the primary reason I had proposed to the
Perry
team that we do a joint moot. Mary Bonauto had already been working closely with them in organizing the amicus briefs, making sure that there was nothing inconsistent that could be damaging to either case. This was trickier than it seems because even though both cases were about marriage equality, they had different goals from a legal perspective. In
Windsor,
we simply needed the Court to defer to the judgment of states like New York or Massachusetts that allowed gay couples to marry, while in
Perry,
the plaintiffs needed the Court to overrule most states' explicit prohibitions on same-sex marriage. Thus, as a practical matter, the scope of what we were seeking in
Windsor
was much narrower than it was in
Perry
. I wanted to make sure that I did not do or say anything at oral argument that might inadvertently hurt the
Perry
case.

Not surprisingly, given the difference in scope, there were plenty of other differences between our strategies. We focused our case on the lives and dignity of gay people, who deserve to be treated the same as everyone else. In contrast,
Perry
's team saw their case as being more about the dignity of marriage. In the opening of their brief, they cited arguably the greatest Supreme Court decision in U.S. history,
Brown v. Board of Education
, the 1954 case that declared that “separate, but equal” in the American public schools was unconstitutional. There was no way that Pam and I would have cited
Brown
on the first page of our brief.
Brown
was a huge leap forward in American constitutional law. We certainly didn't want the Court to see
Windsor
as requiring such a huge leap—we wanted them to see it as a small, easy, moderate step forward.

We had already had a number of intense meetings with the
Perry
team and its allies, including Mary Bonauto, James Esseks, longtime marriage advocate Evan Wolfson, HRC head Chad Griffin, and Hilary Rosen, who had been brought in as a communications consultant for both cases. We would go around and around in circles, discussing our cases, legal tactics, and press strategies. I always ended up saying, “Look, do whatever you want in
Perry
. But when it comes to
Windsor
, please don't talk about it in such broad terms. We need to keep the messaging about the cases separate, so when you talk about
Windsor
, please don't say anything about a fifty-state victory or compare it to
Brown v. Board
.” I desperately wanted to be able to control the message, because I did not believe we would gain anything by being seen as part of one big ball of wax with the
Perry
case.

My fears in this regard were not unfounded. In Jeffrey Toobin's profile of Justice Ginsburg published in
The New Yorker
just a couple of weeks before oral argument, Justice Ginsburg appeared to raise on her own the possibility of there being a connection between the theory she had articulated in a famous lecture that she'd given at NYU about
Roe
v.
Wade
(the case that first recognized a woman's right to have an abortion) and the issues concerning same-sex marriage. In that lecture, Justice Ginsburg had posited that the Supreme Court had decided
Roe
too soon and had not given enough time for the political process to make more progress in terms of legalizing abortion. Toobin concluded that “[Justice] Ginsburg's arguments against Roe . . . strongly suggest that she has no interest in rendering a fifty-state ruling establishing a right to same-sex marriage,” which is what they were seeking in the
Perry
case. I was very worried about the exact same thing.

Because our cases were coming before the Supreme Court at the same time, however,
Perry
and
Windsor
were inextricably linked—and sometimes conflated—in the minds of the American public and the media no matter what we did. The
Perry
team seemed to view this as a good thing, most likely because they believed that our case had a better chance of winning than theirs. By contrast, I did not see any benefit for us in being linked with
Perry
, so I wanted to stay as independent from them as we could. I wanted to see Prop 8 overturned, of course, but I would have been much happier if the Court had not heard our cases together. (
Perry
oral arguments were scheduled for March 26 and
Windsor
for March 27.) I couldn't help but worry about the possibility that a random exchange in
Perry
might harm Edie's case, or vice versa. This was yet another example of the human delusion so many of us suffer from that we actually can control everything in life; as it turned out, the fact that the
Perry
and
Windsor
cases were argued a day apart probably made it easier for the justices to rule the way they did in
Windsor
.

I had proposed a joint moot court with the
Perry
team so we could get a clear sense of each other's oral arguments. In theory, at least, this was a good idea.

The moot was held in the Washington, DC, offices of Ted Olson's law firm, Gibson Dunn, just two days after our team returned from Stanford. I was a little bit jet-lagged, but that was not my biggest problem. The real issue was that Ted Olson argues Supreme Court cases unlike any other lawyer on the planet. Ted has rock-star status, even among the elite Supreme Court bar, which means he can, and does, get away with things that nobody else can.

Ted's legal career has spanned five decades. He started as an associate at Gibson Dunn in 1965, making partner just six years later, and in the 1980s he was an assistant attorney general under President Ronald Reagan. Ted has argued more than sixty cases at the Supreme Court—including his successful representation of George W. Bush in the contested 2000 presidential election. When Bush became president, he nominated Ted to serve as solicitor general, a post Ted held for three years.

Anyone who has argued multiple Supreme Court cases is treated differently at the Court, but Ted's résumé elevated him even higher. Put simply, justices will give him the benefit of the doubt on points where less experienced lawyers might get hammered. I knew he was admired and respected, but I didn't fully grasp the status he enjoyed until the day of our joint moot.

Ted graciously offered to go first, and it was incredible to see how deferential the “justices” were with him. In his responses to their questions, he rarely seemed to feel the need to elaborate—he would just offer up simple statements and leave it at that. Sometimes he didn't really answer the question at all.

For example, in one exchange with his fellow SCOTUS attorney Lisa Blatt, Ted basically swatted away questions about the slippery slope toward incest:

LISA BLATT
: Why can't I marry my sister if I want to marry her?

TED OLSON
: Incest statutes.

LISA
: If I don't have sex with her, can I marry her?

TED
: In cases of close relatives, there may be certain state interests that are not in this case.

Later, he parried questions about bestiality with the same nonchalant brevity:

LISA
: So I can marry my cat?

TED
: No, maybe the state can say that you cannot marry the cat.

LISA
: You can't tell me why I can't marry my cat?

TED
: No, because that is not what the case we brought is about.

I watched these exchanges in awe, but during the debrief, when a few people suggested that I should try to argue more like Ted, I knew that that was a terrible idea. No other lawyer in the country could ever answer the justices' questions the way that Ted Olson does. In fact, to his credit, Ted said as much himself. “You know Robbie can't do that,” he told the group. “She'll get eaten alive.” I appreciated Ted's candor in that moment, and it reinforced what I already knew. I had to argue this case on my own terms, regardless of what anyone else might say to try to convince me otherwise.

The first thing I did after the moot was to call my friend Annie Washburn (Emily Giske's wife) to find out what she was making for Shabbat dinner that night. I was delighted to learn that we would be having Annie's famous roast chicken. In fact, that was probably the high point of my day—I thought about that roast chicken practically the entire train ride home.

Over the course of six formal moots and many more informal practice sessions with my team, I grew increasingly comfortable with the quirks of arguing in front of the Supreme Court. Normally when I argue cases in the lower courts, I go into a kind of
schmeichel
mode—a Yiddish word meaning “to butter up.” I try to subtly charm the judges, to persuade them, to have an intellectual discussion with them about the legal or factual issues, even to try to get them to laugh. That strategy wouldn't work at the Supreme Court, in part because I had so little time, in part because I would be getting questions from up to nine different justices, but mostly because of the tenor of the Court itself. I had to learn to give shorter answers that repeated my main points over and over instead of arguing to persuade the justices. I practiced arguing more defensively, making sure that I wasn't giving the other side anything to use against us. Because I was the only openly gay attorney arguing on either
Perry
or
Windsor
, I also wanted to make sure I kept my emotions as separate as I could from my argument.