Then Comes Marriage (35 page)

And no one has identified any legitimate Federal interest that is being served by Congress's decision, for the first time in our nation's history to undermine the determinations of the sovereign States with respect to eligibility for marriage. I would respectfully contend that this is because there is none.

Rather, as the title of the statute makes clear, DOMA was enacted to defend against the marriages of gay people. This discriminatory purpose was rooted in moral disapproval, as Justice Kagan pointed out.

I had felt a little nervous at the beginning, but by now I was in the zone. I was completely focused on getting out my strongest points to the exclusion of everything else. Whenever a justice asked me a question, I would look directly at him or her and answer. Because Justice Thomas never asks questions during arguments, I don't think I looked his way even once.

Of all the exchanges I had with the justices, the one that happened next was probably the most substantive. It involved the question of uniformity, which is really the primary argument that DOMA's defenders were still pushing at that point. Under the uniformity argument, Congress was justified in passing DOMA in 1996 because it enabled the government to have uniformity with respect to the marriages (or potential future marriages) of gay couples.

This was BLAG's core argument, and when Paul Clement had been up at bat, Justice Breyer had asked him about it.

JUSTICE BREYER
: All right. So you're saying uniform treatment's good enough no matter how odd it is, no matter how irrational. There is nothing but uniformity. We could take—no matter. You see what I'm—where I'm going?

CLEMENT
: No, I see exactly where you're going, Justice Breyer.

JUSTICE BREYER
: All right. [LAUGHTER] . . .

CLEMENT
: Well, again, if we're—if we're coming at this from the premise that the States have the option to choose, and then we come at this from the perspective that Congress is passing this not in a vacuum, they're passing this in 1996. And what they're confronting in 1996 is the prospect that one State, through its judiciary, will adopt same-sex marriage, and then by operation of the full faith and credit law, that will apply to any—any couple that wants to go there.

And the State that's thinking about doing this is, Hawaii, it's a very nice place to go and get married. And so Congress is worried that people are going to go there, go back to their home jurisdictions, insist on the recognition in their home jurisdictions of their same-sex marriage in Hawaii, and then the Federal Government will borrow that definition, and therefore, by the operation of one State's State judiciary, same-sex marriage is basically going to be recognized throughout the country.

And what Congress says is, wait a minute. Let's take a timeout here. This is a redefinition of an age-old institution. Let's take a more cautious approach where every sovereign gets to do this for themselves. . . .

Given his skills as an oral advocate, Paul Clement had almost managed to make this sound reasonable. The problem with his argument, however, is that the federal government under DOMA was not actually treating Americans' marriages uniformly. In fact, what Congress was doing was accepting the marriages of straight couples and rejecting the marriages of gay couples. Indeed, historically, the federal government had uniformly always treated marriages the same way, regardless of significant differences among the states as to who (and at what age) people could marry. Thus, the only uniformity promoted by DOMA was with respect to its treatment of gay people. Gay people were in fact being treated uniformly under DOMA—that is, they were being uniformly disadvantaged. But that's not uniformity, that's discrimination.

Justice Breyer gave me a chance to answer the same question.

JUSTICE BREYER
: What—what do you think of his—the argument that I heard was, to put the other side, at least one part of it as I understand it said, look, the Federal Government needs a uniform rule. There has been this uniform one man, one woman rule for several hundred years or whatever, and there's a revolution going on in the States. We either adopt the resolution—the revolution or push it along a little, or we stay out of it. And I think Mr. Clement was saying, well, we've decided to stay out of it.

ME
: I don't—

JUSTICE BREYER
: And the way to stay out of it is to go with the traditional thing. I mean, that—that's an argument. So your answer to that argument is what?

ME
: I think it's an incorrect argument, Justice Breyer, for the—

JUSTICE BREYER
: I understand you do, I'd like to know the reason. [LAUGHTER]

ME
: Of course. Congress did not stay out of it. Section 3 of DOMA is not staying out of it. Section 3 of DOMA is stopping the recognition by the Federal Government of couples who are already married, solely based on their sexual orientation, and what it's doing is undermining, as you can see in the briefs of the States of New York and others, it's undermining the policy decisions made by those States that have permitted gay couples to marry.

States that have already resolved the cultural, the political, the moral—whatever other controversies, they're resolved in those States. And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of Federal law, you're not—you're not taking it one step at a time, you're not promoting caution, you're putting a stop button on it, and you're having discrimination for the first time in our country's history against a class of married couples.

Already married, already gay!
I finally got to make our argument. In the nine states where gay people were then allowed to marry, there hadn't been chaos as a result—we hadn't seen any breakdown or disruption of the social order. Gay marriage wasn't tearing the fabric of the nation. Whatever reason anyone had for thinking that gay people shouldn't be allowed to marry, we had a response.

Justice Sotomayor followed my answer on uniformity by asking, “Do you think there's a difference between that discrimination [against gay married couples] and the discrimination of States who say homosexuals can't get married?” I responded by saying again that
Windsor
and
Perry
were different cases, but her question gave me a chance to stress once again the real reason why Congress had passed DOMA:

The answer can't be uniformity as we've discussed. It can't be cost savings, because you still have to explain then why the cost savings is being wrought at the expense of married couples who are gay; and it can't be any of the State interests that weren't discussed, but questions of family law in parenting and marriage are done by the States, not the Federal Government.

The only conclusion that can be drawn is what was in the House Report, which is moral disapproval of gay people, which the Congress thought was permissible in 1996 because it relied on the Court's
Bowers
decision, which this Court has said was wrong, not only at the time it was overruled in
Lawrence
, but was wrong when it was decided.

Chief Justice Roberts then jumped in to ask me whether the “84 senators based their vote on moral disapproval of gay people?” With that, he gave me the opening that I'd been looking for, the chance to win my bet with our team by quoting Justice Kennedy's own words directly.

ME
: I think what is true, Mr. Chief Justice, is that times can blind, and that back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction—

CHIEF JUSTICE ROBERTS
: Well, does that mean—times can blind. Does that mean they did not base their votes on moral disapproval?

ME
: No; some clearly did. I think it was based on an understanding that gay—an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don't think exists today and that's the sense I'm using that times can blind. I think there was—we can all understand that people have moved on this, and now understand that there is no such distinction. So I'm not saying it was animus or bigotry, I think it was based on a misunderstanding on gay people . . .

The moment I said “times can blind,” Chief Justice Roberts—and all the other justices—knew exactly what I was doing. Those words are probably the most quoted phrase from Kennedy's opinion in
Lawrence v. Texas
, and they speak precisely to the point I was trying to make. In 1996, lots of people thought gay people were different, not to mention strange and scary, but in 2013, that wasn't the case anymore.

Were people homophobic bigots in 1996? No, they were blinded by the times they lived in. What cured the blindness of prior generations in failing to see that their gay brothers, sisters, colleagues, and neighbors have the same human need for love and commitment as everyone else?

In large part, the reason for this sea change in attitudes toward gay people is the fact that until recently, many Americans simply did not realize that they knew anyone who was gay. Because of the sting of social disapproval and the persistence of discrimination in nearly every facet of everyday existence, for most of the twentieth century and continuing even today, many gay people have lived their lives in the closet so as not to risk losing a job, a home, or the love and support of family and friends. Without the benefit of knowing and understanding the lives of gay people living openly and with dignity in their communities, many Americans failed to see that gay people and their families have the same aspirations to life, liberty, and the pursuit of happiness as everyone else.

Perhaps the paradigmatic example of this phenomenon is the experience of the senator from my home state of Ohio, Rob Portman, who supported the Ohio marriage bans at issue in this case based on his “faith tradition that marriage is a sacred bond between a man and a woman.” However, shortly before the oral arguments in
Windsor
, he changed his mind upon learning that his own son is gay.

Justice Scalia asked me next how many states currently permit “gay marriage,” and I answered nine. “So, there has been this sea change between now and 1996,” he said. I couldn't really tell whether Justice Scalia expected me to respond with a yes, or a no, but I readily agreed, “I think with respect to the understanding of gay people and their relationships there has been a sea change, Your Honor.” This gave Chief Justice Roberts the idea for his next question.

CHIEF JUSTICE ROBERTS
: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?

ME
: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as was discussed in
Bowers
and
Lawrence
, was an understanding that there is no difference—there was [no] fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.

CHIEF JUSTICE ROBERTS
: You don't doubt that the lobby supporting the enactment of same-sex marriage laws in different States is politically powerful, do you?

ME
: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor.

I knew where the chief justice was going with this. As we had argued before the Second Circuit, one of the four characteristics that the courts have looked to in deciding whether a particular minority group should receive heightened scrutiny is a lack of political power. The chief justice was implying that gay people now had more than enough political power to protect themselves from discrimination through the political process, but I disagreed. “Really?” he asked. I responded, “Yes.” (My mother, who was sitting with my father in the courtroom, later told me that when I gave this answer to the chief justice, she panicked, convinced that a bunch of federal marshals were going to walk over, put me in handcuffs, and escort me away.)

Then the chief justice said, “As far as I can tell, political figures are falling all over themselves to endorse your side of the case.” (Here was the unforeseen consequence of President Clinton's op-ed that I had worked so hard to get.)

My face flushing for the first and only time, I responded:

The fact of the matter, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights the way gay people have, and only two of those referenda have ever lost. One was in Arizona; it then passed a couple of years later. One was in Minnesota, where they already have a statute on the books that prohibits marriage between gay people.

So I don't think—and until 1990, gay people were not allowed to enter this country. So I don't think that the political power of gay people today could possibly be seen within that framework.

Throughout our entire case, I had succeeded in keeping my personal feelings at bay. As a lawyer, my duty is always to my client, and for four years, I had kept my focus relentlessly on Edie Windsor and the facts of her case. But DOMA wasn't just a law that I wanted to see struck down as an attorney. It was a law that adversely affected me, my wife, and my son. I wanted to win this case for Edie, but I wanted DOMA struck down for my own family, too.

As the only gay lawyer who had argued in either
Windsor
or
Perry
, I was acutely aware that I needed to keep on an even keel, even more so than the other lawyers. I could not appear to be emotionally invested, even though I was. But in the moment that Chief Justice Roberts used the phrase “falling all over themselves,” years of my own injured feelings came rushing to the surface. Being told by a nurse that I couldn't take Jacob home. Having a social worker ask what we would tell Jacob when he “grieves the loss of the father.” And I was one of the lucky ones. Many more gay people—too many to count (including Edie)—had suffered far worse indignities in their sometimes too-short lives, and many more would continue to do so, no matter how much political power Chief Justice Roberts believed we had.