Then Comes Marriage (34 page)

Sitting there at the lawyers' table, I quickly crossed out my original opening and started jotting notes for what I might say instead. In the meantime, I obviously had to keep listening closely, in case there were any notable exchanges during the solicitor general's argument that could be helpful for mine.

Chief Justice Roberts was the first to interject, turning immediately to the subject of federalism. This was arguably dangerous territory for BLAG because it gave the justices another independent reason—one unrelated to the equality of gay people under the law—to strike down DOMA. In other words, if Justice Kennedy wasn't entirely convinced about our equal protection argument, the federalism theory might still persuade him to vote our way. And Justice Kennedy had already intimated, through the comments he'd made during Paul Clement's oral argument, that he was at least interested in the federalism issue.

In the moment that Chief Justice Roberts asked Solicitor General Verrilli about federalism, two things were immediately clear. First, as the solicitor general of the United States, Don Verrilli had no choice but to say that federalism was not a reason to find DOMA unconstitutional. The federal government's view of its own powers is necessarily expansive, and as one of the highest-ranking federal officials, the solicitor general was not about to argue that Congress had overstepped the limits of its authority. It was his job (and his duty) to argue precisely the opposite.

Second, the chief justice undoubtedly knew that the solicitor general would respond the way that he did. By getting the solicitor general to state plainly that the U.S. government disavowed the federalism argument, the chief justice was presumably hoping to take that argument off the table. In fact, he didn't just ask the federalism question of the solicitor general once, he asked it three separate times.

CHIEF JUSTICE ROBERTS
: [Y]ou don't think it would raise a federalism problem either, do you?

SOLICITOR GENERAL VERRILLI
: I don't think it would raise a federalism problem . . .

CHIEF JUSTICE ROBERTS
: So, just to be clear, you don't think there is a federalism problem with what Congress has done in DOMA?

VERRILLI
: We—no we don't, Mr. Chief Justice . . .

CHIEF JUSTICE ROBERTS
: You don't think federalism concerns come into play at all in this, right?

As I listened, my sense was that Chief Justice Roberts may have believed that Justice Kennedy was leaning toward striking down DOMA on federalism grounds, which may have explained why the chief justice was eager to neutralize that argument. However, if Justice Kennedy was actually persuaded by the equal protection argument, then the federalism argument would not really matter. Regardless of his strategic thinking, the chief justice kept pressing the issue.

The exchanges on the topic of federalism continued until Justice Sotomayor stepped in to change the subject. She asked what level of scrutiny the justices should apply in this case, and from that point on, the solicitor general's argument stayed on equal protection. He managed to work in one uninterrupted, powerful statement toward the end of his time, making several crucial points:

If anything, Section 3 of DOMA makes Federal administration more difficult, because now the Federal Government has to look behind valid state marriage licenses and see whether they are about State marriages that are out of compliance with DOMA.

It's an additional administrative burden. So there is no administrative advantage to be gained here by what Congress sought to achieve. And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, . . . any of that.

It was enacted to exclude same-sex married, lawfully married couples from Federal benefit regimes based on a conclusion that was driven by moral disapproval.

Soon thereafter, Solicitor General Verrilli's time was up. Now, it was my turn.

FOR MOST OF
the day, I had been surprisingly calm. The questioning had gone very well for our side, and although I was very aware of the gravity of the case and the intensity of the feelings in the courtroom and throughout the nation, I felt ready. The moment I stepped up to the lectern, however, my nerves suddenly kicked in. “Mr. Chief Justice, and may it please the court,” I said, my voice slightly shaky. I then went right into the new opening that I had hastily scribbled down during the solicitor general's argument.

I'd like to focus on why DOMA fails even under rationality review. Because of DOMA, many thousands of people who are legally married under the laws of nine sovereign states and the District of Columbia are being treated as unmarried by the Federal Government solely because they are gay.

These couples are being treated as unmarried with respect to programs that affect family stability, such as the Family Leave Act, referred to by Justice Ginsburg. These couples are being treated as unmarried for purposes of Federal conflict of interest rules, election laws and anti-nepotism and judicial recusal statutes.

And my client was treated as unmarried when her spouse passed away, so that she had to pay $363,000 in estate taxes on the property that they had accumulated during their 44 years together.

This is where Chief Justice Roberts interjected, but I was happy that I'd been able to get across at least these three points about DOMA at the outset without interruption, going from the universal negative impact DOMA was having on many thousands of gay people to its particular adverse impact on my client, Edie Windsor. Although initially I had been reluctant to bring up the issue of the benefits being denied to married gay couples under DOMA, once Justice Ginsburg had brought it up herself during Paul Clement's argument, I knew I could attribute the observation to her, which I happily did.

When Chief Justice Roberts started to speak, it was again on his preferred subject of federalism. “Could I ask you the same question I asked the Solicitor General?” he said. “Do you think there would be a problem if Congress went the other way . . . [if] Congress said, we're going to recognize same-sex couples—committed same-sex couples—even if the State doesn't, for purposes of Federal law?”

This was a bit of a twist: Chief Justice Roberts was giving me a hypothetical, but he was turning it around to ask me to imagine a situation where the federal government actually insisted on providing recognition to gay couples, no matter what the individual states had to say. I was at first a bit uncertain as to where the Chief Justice was going with this, so I tried to pivot back to equal protection.

ME
: Obviously, with respect to marriage, the Federal Government has always used the state definitions. And I think what you're proposing is to extend—the Federal Government extend additional benefits to gay couples in States that do not allow marriage, to equalize the system.

CHIEF JUSTICE ROBERTS
: I'm just, I'm asking whether you think Congress has the power to interfere with the—to not adopt the State definition if they're extending benefits. Do they have that authority?

ME
: I think the question under the Equal Protection Clause is what the distinction is.

CHIEF JUSTICE ROBERTS
: No, no. I know that.

You're following the lead of the Solicitor General and returning to the Equal Protection Clause every time I ask a federalism question.

Is there any problem under federalism principles?

The chief justice appeared to be annoyed. He clearly seemed to want me to answer, as the solicitor general had before me, that I did not believe that the reason why DOMA was unconstitutional was because of federalism. I wasn't inclined to give a simple no answer to the question, however, and unlike Solicitor General Verrilli, I didn't have to.

Not only was I disinclined to hand anyone any ammunition for persuading Justice Kennedy to vote to uphold DOMA, but I actually believed that the answer was far more complicated. Here's why: if a couple, one of whom is a U.S. citizen and one of whom is not, wants to get married, all they have to do is go to the city clerk's office and fill out the necessary forms. The couple doesn't go to the federal office building across the street because only the states, not the federal government, can marry people. But if the now-married noncitizen husband wants to get his green card, he has to go to the federal Department of Homeland Security. There, the federal officials are perfectly entitled to ask him things like the color of his new wife's toothbrush in order to determine whether he entered into a “real” marriage, meaning the marriage was not fraudulently entered into for the purpose of obtaining a green card.

So the question is where—on this continuum between the federal government not marrying people and the federal government being able to ask someone applying for a green card whether his marriage is real—does the Tenth Amendment draw the line? There certainly was no clear answer in the Constitution or the case law. This was the complexity that I was trying to suggest in my answers. When I said as much, though, Justice Scalia seemed to get irritated as well.

ME
: For the reasons Justice Kagan mentioned, we think the federalism principles go toward a novelty question. I think whether or not the Federal Government could have its own definition of marriage for all purposes would be a very closely argued question.

JUSTICE SCALIA
: I don't understand your answer. Is your answer yes or no? Is there a federalism problem with that, or isn't there a federalism problem?

ME
: I think the Federal Government could extend benefits to gay couples to equalize things on a programmatic basis to make things more equal. Whether the Federal Government could have its own definition of marriage, I think, would be—it'd be very closely argued whether that's outside the enumerated approach.

JUSTICE SCALIA
: Well, it's just—all these statutes use the term “marriage,” and the Federal Government says in all of these statutes when it says marriage, it includes same sex-couples, whether the State acknowledges whether it would work?

[Laughter] I don't care if it works.

Does it create a federalism problem?

I was adamant about not giving the one-word answer that the justices sought. I was also concerned that a win on federalism grounds alone would hurt plaintiffs in the next big case (if there wasn't a victory on the merits in
Perry
) because states like Florida, Texas, and Mississippi would be able to argue that states had a right under the Tenth Amendment not to allow or recognize the marriages of gay couples. (And, as it turns out, that's exactly what Florida, Texas, and Mississippi have been arguing in the courts since
Windsor
.) My game plan all along was to try to pivot away from the federalism question if the justices raised it, but we did not expect them to go after it so insistently and for so long.

Justice Alito was the next to jump in, and he redirected the argument back to equal protection.

JUSTICE ALITO
: If the estate tax follows State law, would not that create an equal protection problem similar to the one that exists here? Suppose there were a dispute about the—the State of residence of your client and her partner or spouse. Was it New York, was it some other State where same-sex marriage would not have been recognized? And suppose there was—the State court said the State of residence is a State where it's not recognized.

Would you not have essentially the same equal protection argument there that you have now?

ME
: Well, let me answer that question very clearly. Our position is only with respect to the nine States—and I think there are two others that recognize these marriages. So if my client—if a New York couple today marries and moves to North Carolina, which has a constitutional amendment, a State constitutional amendment [prohibiting gay marriage]—and one of the spouses dies, they would not—and estate taxes determine where the person dies, they would not be entitled to the deduction.

That is not our claim here.

This response irked some in the LGBT rights community, but it was absolutely the right answer to give at that time. My job was to win Edie's case, which was about one woman and one estate tax bill, not to make broader arguments about what position the Obama administration would or should take with respect to states like North Carolina that did not then have marriage equality if we won our case. I also wanted to take the opportunity to differentiate our case from
Perry
, which I suspected (based on the arguments the day before) had less chance of winning on the merits than
Windsor
did. The next exchange with Justice Alito allowed me to do exactly that.

JUSTICE ALITO
: What if the hypothetical surviving spouse, partner in North Carolina, brought an equal protection argument, saying that there is no—it is unconstitutional to treat me differently because I am a resident of North Carolina rather than a resident of New York. What would be—would that be discrimination on the basis of sexual orientation? What would be the level of scrutiny? Would it survive?

ME
: That would be certainly a different case. It would be more similar to the [
Perry
] case I think you heard yesterday than the case that we have today. We certainly believe that sexual-orientation discrimination should get heightened scrutiny. If it doesn't get heightened scrutiny, obviously, it'd be rational basis, and the question would be, what the State interests were in not allowing couples, for example, in North Carolina who are gay to get married.

No one has identified in this case, and I don't think we've heard it in the argument from my friend [Paul Clement], any legitimate difference between married gay couples on the one hand and straight married couples on the other that can possibly explain the sweeping, undifferentiated and categorical discrimination of DOMA, Section 3 of DOMA.