Then Comes Marriage (31 page)

One passage in the
Lawrence
opinion was particularly appropriate since it spoke to the vexing question of why otherwise open-minded people like President Clinton had chosen in the past to support DOMA:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In our briefs, we had taken great care not to point fingers at the lawmakers who had voted for DOMA, and I wanted to do the same thing in my oral argument. It's considered bad form to seem to be overtly lobbying for a particular justice's vote at argument. But rather than citing Justice Kennedy's opinions directly, I could try to echo his language in a more subtle fashion, using his own words and phrases like “times can blind.” This served another purpose, too. I knew that in all likelihood, one or more of the justices would attempt to box me in on a point I didn't like or want to be boxed in on. The best thing to do in those moments is to pivot, or redirect the argument back to your own strongest points. Interjecting phrases from the justices' own opinions is a time-honored way to do that, which led my brilliant colleague Jaren to come up with a fantastic idea.

“Why don't we put together a list of all the Kennedy quotes that might be useful?” she asked. We quickly went through his
Lawrence
and
Romer
opinions and pulled out the best phrases we could find, creating a cheat sheet I could use that we called “Kennedy's Greatest Hits.” It included the most important passages from Justice Kennedy's opinions in
Romer
and
Lawrence,
such as:

•  Sweeping and comprehensive is the change in legal status effected by this law. . . . Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

•  It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.

•  For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.

•  It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

I studied this sheet for hours, quite literally walking around the streets of Washington, DC, like a crazy person, repeating the phrases out loud over and over again so that they would be on the tip of my tongue during the March 27 oral argument. People on our team even began placing bets on when, or whether, I would manage to work any of them into my oral argument. Regardless of the office pool odds, I was determined to do so.

By now I had practiced my answers to the justices' potential questions to the point where I could practically recite them in my sleep. Everything was going smoothly, until one unfortunate moment just three days before the argument.

This was our final moot, my last chance to calibrate my answers before appearing in front of the justices. Edie, Pam, the rest of the team, and I met in the evening in a big conference room at the Paul, Weiss offices in downtown DC, and for the umpteenth time, I began laying out our arguments. Very soon, Pam started grilling me on the issue of heightened scrutiny, asking me again and again why laws that treat gay people differently should get heightened scrutiny when laws that treat other groups differently—such as the physically or mentally disabled—clearly did not. She kept pounding on the issue, trying to exploit cracks in my argument, and I suddenly felt exhausted.

“You know what?” I exclaimed, speaking out of turn and no longer in moot mode. “Enough! If I have to during the argument, I'm going to throw handicapped people under the bus.” What I meant to say, of course, was that I would try to sidestep this problematic issue if the justices brought it up. It wasn't my job, after all, to look out for the legal rights of other minority groups; it was my job to win our case for Edie Windsor. But unfortunately, and to my deep regret, that is not what I said.

The minute I saw the look on Edie's face, I knew that she was furious. Suddenly, I remembered that Thea had been a quadriplegic. She had spent a quarter century in a wheelchair, with Edie taking care of her and loving her through it all. I had even seen Thea like that myself when I was her patient. And I had just casually blurted out a remark about throwing her, or people like her, under the bus.

I immediately felt sick to my stomach. “Edie,” I said, “I'm so sorry. I didn't mean it to come out that way.” I tried to explain, but Edie was in no mood to hear it. She was tired, she was hurt, and she was absolutely right that I never should have said what I said.

To quote the Paul Simon song, we as lawyers can sometimes “think too much.” We can get so caught up in the gamesmanship and legal technicalities that we lose sight of the real people behind the cases. The look on Edie's face reminded me in an instant that this wasn't about the briefs and PR logos and op-eds; it was about the still-grieving woman standing right there, looking at me with hurt in her eyes.
It's all about Edie, stupid
. How could I have forgotten that?

I felt terrible about upsetting Edie that day—in fact, I still do. But in a strange way, that mistake helped me to remember something vital to our case. I wouldn't forget again what
United States v. Windsor
was truly about.

THE DAY BEFORE
my Second Circuit oral argument, Edie, Rachel, and I had gone to Yom Kippur services together in Manhattan, an event that turned out to be incredibly meaningful. Coincidentally, two days before my argument at the Supreme Court, it was time to celebrate another Jewish holiday. Monday, March 25, was the first night of Passover, when Jews throughout the world celebrate the liberation of the Jewish slaves from Egypt more than three millennia ago. We planned a big Seder dinner at the hotel and invited dozens of people—practically anyone and everyone who happened to be in Washington, DC, at the time who had anything to do with the case.

In the Supreme Court's original scheduling order, the oral argument in
Windsor
was supposed to take place on March 27 and the oral argument in
Perry
was supposed to happen on March 26. But Vicki Jackson, the Harvard Law professor whom the Court had appointed to argue the jurisdictional question in
Windsor
, had asked the Court to switch the dates because she had planned a Passover Seder at her home in Cambridge for the evening of March 25. The Court readily agreed, and the switch ended up working in our favor, since we would now be able to hear the
Perry
argument first and listen to what the justices had to say before I argued Windsor. It also meant we could have our own Seder and still have one more day for final preparation before the oral argument.

Rachel took on the massive task of organizing our Seder. Passover Seders are comprised of many specific dishes—foods that have symbolic meaning for the religious holiday, and which therefore must be prepared with some precision. Above all, no food that is leavened, which includes bread, pasta, and most cookies or cakes, can be eaten during Passover. This is to commemorate the fact that when the newly liberated Israelites were escaping from Pharaoh's armies, they did not have time to wait for their dough to rise. The restaurant at the hotel was mostly Asian, and at one point I could hear Rachel on the phone explaining, “We cannot have any wontons in the matzoh ball soup!”

It is also traditional at Passover for everyone present at the Seder to read from the Haggadah, the centuries-old text that lays out the order of the Seder and explains the meaning of the holiday. There are many different versions of this text, some longer than others and some with modernizing touches. Over the years, Rachel and I had created our own relatively lengthy Haggadah with social justice and feminist overtones, as well as a lot of poetry and traditional Hebrew from the Torah and the rabbinic literature. I was glad that we had brought copies of our Haggadahs with us, full of prayers and poems about fleeing from slavery (or its equivalent) to freedom and liberty. It seemed especially appropriate considering not only the particular meaning of the Passover holiday but why we were all there in Washington, DC, in the first place.

The Seder was magnificent. The large room was so full that it was practically bursting at the seams with friends and family and the many colleagues who had been so supportive of Edie and our team. My parents were there, as was all of Rachel's family, including our niece and all of our nephews from Massachusetts and California; Pam Karlan and her partner, Viola Canales; Mary Bonauto; Emily Giske; Pam's law students who'd helped with the case; our whole Paul, Weiss team; James Esseks; and Edie. Even the then-girlfriend of Jacob's wonderful nanny Ellie Alvarez came and brought her parents from Israel, since they were visiting their daughter for the holiday.

One of the truly special rituals that we did that night was to go around the table and invite everyone to introduce themselves during the song “Dayenu.” In Hebrew, the word
dayenu
means “it would have been enough for us,” or “it would have been sufficient.” The song is about being grateful for all of the gifts God has given us, such as liberating us from bondage, giving us the Torah (or Jewish law), and allowing us the gift of rest on Shabbat. In other words, had God given us only one of those gifts, it would have been enough. As I looked around at all the faces in the room singing this word
dayenu
over and over again, I had tears in my eyes. This extended family—many of whom were gay people just asking to live their lives with dignity and justice—was what all our work (not to mention the Jewish holiday) was really about.

THE NEXT MORNING,
March 26, dawned with overcast skies and freezing temperatures. I woke up early and got ready to head to the Supreme Court to hear the oral arguments in
Perry
, feeling extremely fortunate that as the lawyer who would be arguing on behalf of Edie Windsor, I had been given a ticket to get into the Court for
Perry
. Both arguments were expected to draw massive crowds, so I knew some of my colleagues had woken up before dawn to stand in line at the Supreme Court, since that was the only way to get a seat.

Jaren, Pam, Andrew, James, and Paul, Weiss partner Walter Rieman got to the Court around five a.m., and Pam talked later about the uncomfortable transition that took place once they arrived. Because people had started lining up days before, we had hired “line-standers” to act as proxies, so that the attorneys working on the case would not have to spend a sleepless night on the sidewalk. Hiring line-standers has become common for big cases at the Supreme Court, and many firms do it. But Pam described the surreal scene that unfolded the morning of the
Perry
argument.

We got over to the Supreme Court at 5 a.m., and the entire lawyers' line was made up of homeless black men underneath tarps who had been sleeping there all night. And there was this white guy with a clipboard, and you went up to him and gave him your name, and then he went and woke up one of these guys. The guy would get up, wrap his blanket around him, and get on a bus, and you would then take his place in line.

And if somebody had been there to take a time-lapse photo of this, you would have seen a line of homeless black men turning into a line of affluent white lawyers over about a two-hour period, and I was just staggered by it.

Especially for a lifelong civil rights lawyer like Pam, who had not only worked at the NAACP Legal Defense Fund but had devoted her entire career to obtaining rights for the socially marginalized, this was a particularly gut-wrenching experience.

When Pam and the others took their places in line, they stood in the freezing temperatures for another several hours. Once they finally got into the Court, I had already taken my assigned seat in the first row next to Amy Howe, a member of the Supreme Court bar who, along with her husband Tom Goldstein, runs the SCOTUSblog website. I could not wait to see how the argument unfolded and what the various justices would have to say about the issues in the case.

Charles Cooper, the attorney defending Prop 8, went first. Cooper had clerked for Justice William Rehnquist and served as an assistant attorney general under President Reagan before cofounding his own law firm, Cooper & Kirk. He was a Southerner, a rock-solid conservative from Alabama who opposed gay rights. But what almost no one knew at the time was that his own stepdaughter, who had grown up with Cooper as a father figure, had recently told him that she was a lesbian. To my knowledge, Cooper never made any public statement revealing how that news had affected him, but it is hard to imagine that his daughter's coming out had no impact. Later, it was reported that Cooper had helped to organize his stepdaughter's wedding to her girlfriend, which took place a little more than a year after the
Perry
oral argument.