Then Comes Marriage (33 page)

After the formal presentation by General Suter, I started to pace. In those moments before heading into the courtroom, I couldn't help but think back to the argument I had made, and lost, for marriage equality in New York in 2006. Seven years had passed since then, and in that time, the world had changed dramatically. At the New York Court of Appeals, my message to the judges was
Be brave. Do the right thing, even if it's hard
. Today, my message to the justices would be:
Already married, already gay
. In other words, in 2006, the burden was on our side to explain why gay people should be allowed to marry. By 2013, the burden had shifted, and it was up to the other side to explain why the otherwise legal marriages of gay couples should be categorically disrespected under federal law.

Walking into the courtroom, I actually felt pretty calm. Pam, James, Jaren, and I took our seats at the counsels' table, and as I glanced around the room, I saw that the Court officers had done everything in their power to squeeze as many people into the courtroom as possible. I noticed (while trying very hard not to notice) that a whole slew of Washington, DC, celebrities, such as White House advisor Valerie Jarrett, Democratic Leader Nancy Pelosi, and our own congressman, Jerrold Nadler, walked up to pay their respects to Edie, who was sitting in the second row with Rachel and Viola. My goal was to do my best to ignore all the commotion and focus on my argument, but I was pleased to notice that my hair was at least blown out in the same fashion as that of Nancy Pelosi. As usual, Pam had been correct.

We all rose as the nine justices entered, and at 10:18 a.m., Chief Justice John Roberts opened the proceedings with the words, “We will hear argument this morning in Case 12-307,
United States v. Windsor
, and we will begin with the jurisdictional discussion.” As my Paul, Weiss mentor Marty London had exhorted in his text to me months ago, “on to the Show.”

The justices began with the jurisdictional arguments, which involved a very technical discussion of federal statutes and case law about the authority (or lack thereof) of the Supreme Court to hear the case. Vicki Jackson did a superb job, as did Sri Srinivasan, who argued for the Department of Justice. Paul Clement argued for BLAG, and I was struck by how fast he talked. My whole career, no one has ever believed I'm from Cleveland, assuming that I'm a native New Yorker because I tend to speak so quickly. Throughout my career, people have been telling me that I needed to speak more slowly. But as I sat there listening to Paul Clement, I realized that this may be the one place on the planet where speaking quickly was definitely an advantage.

During the jurisdictional arguments, I had
shpilkes
, or “ants in my pants,” since I had tons of nervous energy and was impatient to stand up and get the show on the road. When the jurisdictional arguments concluded, Chief Justice Roberts called for a short break, and then—at long last—it was time for the arguments on the merits. Paul Clement would go first for thirty minutes, then Solicitor General Don Verrilli for fifteen, and then it would be my turn. I would be the last lawyer, and the first and only gay person, to argue in the entire two days (or almost three hours) of oral argument in the
Perry
and
Windsor
cases combined.

Paul Clement opened by telling the justices that “the legal question on the merits before this Court is actually quite narrow.” The federal government, he said, has the “choice to adopt a constitutionally permissible definition” of marriage, rather than having to submit to follow the pro-LGBT equality choices of states like New York.

Justice Ginsburg was the first to interject, speaking in her usual neutral but determined tone:

Mr. Clement, the problem is if we are totally for the States' decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave; people—if that set of attributes, one might well ask, what kind of marriage is this?

I was thrilled that Justice Ginsburg dove right in with what, after all, was one of our main themes—the sheer breadth of DOMA and how it unjustly discriminated against married gay couples in so many different ways. We had always been worried that enumerating the government benefits that married gay couples were being denied under DOMA would look bad, since it might look like our only goal was to seek what is often derogated as an entitlement, rather than a constitutional right. In other words, although we really wanted this point to be made, I preferred not to be the person to make it. Now that Justice Ginsburg had just made it herself, we were off to a very good start.

A few minutes later, Justice Kennedy made the same point, but interlaced with elements of the federalism argument that had been circulating recently among conservative thinkers. He observed that DOMA

applies to, what, 1,100 Federal laws . . .

[W]hen it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.

Paul responded by saying that “the very fact that there are 1,100 provisions of Federal law that define the terms ‘marriage' and ‘spouse' goes a long way to showing that Federal law has not just stayed completely out of these issues,” and then asserting that “the fact that DOMA involves all 1,100 statutes at once is not really a sign of its irrationality. It is a sign that what it is, and all it has ever purported to be, is a definitional provision . . . all it does is define the term [marriage] wherever it appears in Federal law in a consistent way.”

So far, the questions the justices had asked were more helpful for our side, but Paul Clement was more than holding his own, answering their questions with his usual fluency and confidence. A few minutes later, however, came an exchange with Justice Ginsburg that would redefine the notion of marriage equality in the post-
Windsor
era:

PAUL CLEMENT
: No State loses any benefits by recognizing same-sex marriage. Things stay the same. What they don't do is they don't sort of open up an additional class of beneficiaries . . . that get additional Federal benefits. But things stay the same. And that's why in this sense—

JUSTICE GINSBURG
: They're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question.

It's—as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage: the full marriage, and then this sort of skim milk marriage.

Suddenly, there was a lot of appreciative laughter coming from the audience, but because Justice Ginsburg speaks so softly, I wasn't sure that I actually had heard what she had said, so I turned to Pam. When Pam told me that Justice Ginsburg had just coined the phrase “skim milk marriage,” I had to use all my self-control not to pump my fist in the air in elation. We had spent countless hours on our team debating how best to express the point that under DOMA, gay married people were being treated as second-class citizens. We had gone around and around trying to find a phrase that would best sum it all up. By characterizing Edie's marriage under DOMA as a “skim milk marriage,” Justice Ginsburg had, in a span of thirty seconds, crystallized what our case was really about.

Justice Ginsburg had also used the phrase “as Justice Kennedy said,” which was a sign that she understood that the winning side needed his vote. The fact that she had made this point so forcefully, and had attached Justice Kennedy's name to it, could be read to indicate that she, too, thought we were in good shape.

Justice Kagan was the next to interject:

Mr. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it's uniformly recognized the marriages that are recognized by the State. So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something—maybe Congress had something different in mind than uniformity.

So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody's favorite group in the world, that we look at those cases with some . . . rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?

I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what's going on.

Paul calmly segued into his response:

When you look at Congress doing something that is unusual, that deviates from the way they have proceeded in the past, you have to ask, Well, was there good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity.

Up until 1996, it essentially has it both ways: Every State has the traditional definition [of marriage]. Congress knows that's the definition that's embedded in every Federal law. So that's fine. We can defer.

Okay. 1996—

Paul seemed ready to move on, but Justice Kagan wasn't done:

Well, is what happened in 1996—and I'm going to quote from the House Report here—is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

Is that what happened in 1996?

There was another pronounced collective gasp throughout the courtroom. I had seen Paul Clement argue several times, and I'd never seen him even remotely shaken. But this question understandably threw him off. His answer confirmed that he was on shaky ground:

Does the House Report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach . . .

I have been privileged to observe many excellent cross-examinations in my career (including many by my partners Ted Wells and Marty London), but this was surely at the top of the list. The way that Justice Kagan built her questioning in layers, leading to her final question, should be taught in a class on trial skills. And she seemed to enjoy every second of it.

From the very beginning of the case, our goal had been to describe DOMA as exactly what it was—a radical departure from how Congress had always treated married people and an effort to “fence off” gay people from the rest of federal law and recognition. Paul Clement's strategy was to try to characterize DOMA as just an ordinary statute, passed by Congress with overwhelming majorities and signed by President Clinton as if he were simply reauthorizing a federal program as relatively uncontroversial as the National Park Service or the U.S. Postal Service.

In our brief, we had included numerous vitriolic quotes from the 1996 congressional debate over DOMA—that homosexuality was “based on perversion” or “inherently destructive.” In footnote 3, we showed that such animus was still alive and well in the amicus briefs, which used language such as “immoral,” “radically disruptive to society,” and “a vector of injury and disease” when describing gay people. We had specifically included those quotes in the hopes of provoking precisely the exchange that had just taken place between Justice Kagan and Paul Clement, to show that DOMA was something extraordinary, even for 1996.

The moment Paul uttered the words “if that's enough to invalidate the statute, then you should invalidate the statute,” I thought,
We just won
. This point was our whole case: the only reason for treating gay marriages differently than straight ones is what is referred to in constitutional terms as “animus.” We had specifically written our brief (including the checklist section in the middle that I rewrote dozens of times) so that the justices on our side could take this information and run with it. All along we had believed that this was the argument that had the best chance of persuading Justice Kennedy. And once again, another justice had just made our point for us.

WHEN PAUL'S TIME
was up, Solicitor General Verrilli stepped up to the lectern. By this point, I was feeling pretty confident about our chances, but as the solicitor general started his oral argument, my feelings turned to a mild state of panic. My anxiety was not the result of how the arguments were going but stemmed instead from the fact that the solicitor general was making the exact same point that I had planned to make during my opening.

DOMA, he explained to the justices, “exclude[s] from an array of Federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.” In my opening, which we had written and rewritten hundreds of times trying to make it as powerful and concise as possible, the second sentence was “[W]hen a married gay soldier is killed in the line of duty, military officials must notify the dead soldier's parent, instead of the spouse.”

Although we had worked with the DOJ on general strategy, we hadn't exchanged notes with them on our openings. I'm not sure that the solicitor general would have shared his opening with me even if I had asked, since DOJ lawyers tend to play things like this close to their chest. The fact that both the solicitor general and I wanted to open with the military argument speaks to how powerful that argument really was. Now, however, I had to change my opening, and fast.