Then Comes Marriage (36 page)

My voice had cracked slightly with emotion as I answered, but as the chief justice began to respond, I quickly regained my composure. “[Y]ou just referred to a sea change in people's understandings and values from 1996, when DOMA was enacted,” he said, “and I'm just trying to see where that comes from, if not from the political effectiveness of groups on your side of the case.”

I knew I was nearly out of time, and this would be my last substantive response before my argument was over. At that moment, a thought popped into my head that we hadn't mooted or ever discussed, but it was far too late to ask anyone else what they thought. I know it sounds crazy, but I honestly believe that God, a higher power, or whatever else you want to call it helped to put it there. In an instant, I decided to trust my instincts and forge ahead.

To flip the language of the House Report, Mr. Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples' relationships are not significantly different from the relationships of straight married people.

In the hundreds of hours we had spent preparing, we had never come up with this idea of flipping the phrase “moral disapproval” from the legislative history of DOMA to a “moral understanding” of gay people today. The minute it came into my head and out of my mouth, however, I knew that it was exactly the right thing to say. There was little the chief justice could really say in response and we were out of time anyway, so that's how my argument ended.

Paul Clement stood up to do his three-minute rebuttal, and while I sat down next to Pam, my brain still spinning, I leaned toward her and whispered, “I think my answers were okay.”

“They were great!” she whispered back.

I hadn't screwed it up. I had done right by Edie. And I honestly felt in that moment that I wouldn't have changed a single word in the answers I had given. What an enormous relief.

AS LONG AS
I am still alive and breathing, I will never forget those next few moments when we walked out of the Supreme Court building onto the steps after the oral argument that day. Our whole team had gathered in the lobby, where we were met by Edie, Rachel, Jacob, Rachel's mom, Rachel's sister, our nephew Ari, and Pam's partner, Viola. We could hear the crowd outside yelling and cheering, and in that moment I flashed back to the Court employee's offer a few weeks earlier to help us slip out the back way. I had to smile. There was no way I would miss this moment for anything in the world.

Hilary Rosen and Emily Giske were already there, wearing dark Ray-Bans and looking like Secret Service agents, helping to orchestrate the scene. “Is everybody ready?” Hilary asked. “Here we go.” As we started walking out, I could feel Hilary's hand on my back, pushing me to the front of the group. (Emily later told me that they had joked that they never would have guessed in a million years that they would be doing “advance” for Robbie Kaplan.)

We stepped out into the brilliant sunshine, and it took a moment for my eyes to adjust. I had figured that there would be a crowd, but I never expected it to be as big as it was: there were literally hundreds of people. As soon as they saw Edie, they erupted into a wild roar. Looking radiant in a gray suit and bright pink scarf, wearing the circular diamond pin that Thea had given her for their engagement almost a half century before, Edie held her arms wide, as if to embrace the entire crowd. Responding to a reporter's question about the reasons for the “sea change” in attitudes toward gay people at the press conference on the courthouse steps, Edie explained, “Some brave person woke up one morning and said, ‘I'm gay' . . . and then another person did it, and then another . . .”

Edie's answer was perfect, as good as any I had given the justices that day. I looked at her and thought,
We did it
. We did it—for ourselves, for our families, for the millions of gay people whose lives would be changed for the better.

We did it, both Edie and I, for all of us—and for Thea.

16

EQUAL DIGNITY

T
he “Guide for Counsel,” published by the Supreme Court the same year that our case was decided, explains as follows:
“Opinions may be handed down at any time after the argument. The only information the Clerk or his staff can give you in this regard is that cases argued during the Term are usually decided before the end of June.
” Because
Windsor
had been argued at the end of March, we knew that the justices would most likely hand down their decision sometime in June. In other words, we were going to have to wait about three months (or twelve weeks, or eighty-four days, or 2,016 hours) before learning whether all of our work had paid off.

I tried very hard during that waiting period not to think about the fact that, at any given moment, the justices might be deciding Edie's case or even writing their opinions. But succeeding in not thinking about things that worry me is not one of my talents. Rachel and I decided to go on vacation in April in what proved to be a futile attempt to take my mind off the case. Both Edie and I were stressed out and edgy, desperate for the decision to be handed down.

The justices of the Supreme Court don't give advance notice of the day on which they will release any particular decision; they simply announce that on certain dates they will hand down whichever opinions happen to be ready. So once again, as we had done back when we were waiting to hear whether the Court would grant certiorari, we gathered with all of our Internet browsers on SCOTUSblog.com and hit
refresh
,
refresh
,
refresh
.

Instead of meeting in a conference room at Paul, Weiss, however, this time we decided to gather at my apartment, since it was a lot closer to Edie's apartment than our offices. We hoped that it would be a little easier on her since she wouldn't have to come to Midtown. So Rachel, Edie, and the Paul, Weiss team crowded around my dining room table on June 13 to learn which decisions the Supreme Court had released that day. We stared at our open laptops, hitting
refresh
,
refresh
,
refresh
on the SCOTUSblog website. The Court issued three decisions that day, but none of them were in the
Windsor
case.

The same thing happened on at least two more occasions (June 17 and 24). Each time, we were disappointed. Ariel Levy, who was then working on a profile of Edie for
The New Yorker
, was there with us in my apartment. In her piece, “The Perfect Wife,” Levy accurately captures the mood during our vigil: “Kaplan was frustrated, too. She rubbed her forehead. ‘This is worse than waiting for a jury.' ” I put my head down on my forearms, according to Levy, and “moaned I've got to take up smoking or something.”

Finally, there was only one day left. On Wednesday, June 26, the Court would issue its remaining decisions for the term, which we knew would include not only our case, but the
Perry
decision as well.

This was it—the culmination of three and a half years' work, not to mention the aspirations of countless Americans. As we all sat there sweating in the New York City summer heat, we were looking for three key signals that we believed would tell us whether we had won or lost the case. The first was which justice had written the opinion. Given his historic legacy of writing the two prior major gay rights decisions
Romer
and
Lawrence
, we believed that if Justice Kennedy wrote the majority opinion for
Windsor
, it would bode well for our prospects.

Second, we were looking at the order in which the opinions would be released. Knowledgeable SCOTUS watchers had already concluded, based on the number of opinions that each justice had already authored during the term, that for
Windsor
and
Perry
, it was likely that Chief Justice Roberts would write one of the two opinions and that Justice Kennedy would write the other. If that happened, SCOTUS protocol dictated that Justice Kennedy's opinion would be read in the courtroom first. Accordingly, if the
Windsor
decision was being handed down before the
Perry
decision, that would be a very good sign as well.

And the third and final thing we were looking for—the one that would truly guarantee either a victory or a defeat—was which justice or justices had written dissents. We were pretty confident that if Justice Scalia had written a dissent in our case, we probably wouldn't need to read any further. We would know for certain that we had won.

Refresh
,
refresh
,
refresh.
Finally, the news flashed up on our screens:
Windsor
was the first decision of the day; majority opinion by Justice Kennedy; dissent by Justice Scalia. Even before reading a single word of the decision, we knew we had won—Section 3 of DOMA had been found unconstitutional.

At that point, pandemonium broke out in my apartment. Everyone was crying, shouting, jumping with joy, or all of the above. As I hugged Rachel, she said through her streaming tears, “Everything will be different for Jacob now.”

While I was overwhelmed, I somehow managed to keep my tears in check and spent my time screaming and then rushing to my small home office where it was quiet to read the opinion and dissents. But I do remember that I laughed as I looked over at Ariel Levy, who was crying harder than almost anyone else. So much for objective journalism—though to be honest, I'm not sure any sentient human could have been completely objective in our apartment that day.

IN UNITED STATES
V. WINDSOR
, the Supreme Court voted 5–4 to strike down DOMA, with Justice Kennedy writing the majority opinion and Chief Justice Roberts, Justice Scalia, and Justice Alito each writing their own separate dissents. In
Hollingsworth
v.
Perry
, the Prop 8 case, the justices voted 5–4 not to rule on merits, concluding that the defenders of Prop 8 lacked standing to appeal. Essentially, in
Perry
, the justices decided not to decide, which meant that the district court's decision would stand and marriages of gay couples would resume in California.

In those three months (which felt like three years) between the Supreme Court oral argument and when
Windsor
was decided, I was guardedly optimistic that we would win Edie's case. I was pretty worried, however, about the grounds on which the Court would ultimately rule. I wanted
Windsor
not only to strike down Section 3 of DOMA but to do so using legal reasoning that would help to win future cases about the legal equality of gay people. Thus, it was very important that
Windsor
not be decided based on Tenth Amendment or federalism grounds that arguably applied to DOMA but would not apply to the many other state laws that discriminate against LGBT people.

While the Court agreed with us about DOMA's “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage,” the
Windsor
decision was not grounded in federalism. Justice Kennedy made this point explicitly three separate times in his opinion when he stated, for example, that “state laws defining and regulating marriage, of course,
must respect the constitutional rights of persons.
” Indeed, in his dissent, Justice Scalia noted that the
Windsor
majority “formally disclaimed reliance upon principles of federalism.”

What the
Windsor
opinion is about is human dignity and equality. Justice Kennedy wrote that “interference with the equal dignity of same-sex marriages was more than an incidental effect of DOMA. It was its essence.” He observed that “DOMA writes inequality into the entire United States Code,” commenting that DOMA “touches many aspects of married and family life, from the mundane to the profound.” And, noting that the 1996 House Report expresses moral disapproval of homosexuality, Justice Kennedy suggested that that alone calls DOMA's constitutionality into question. According to the Supreme Court, DOMA was “invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

Justice Kennedy used the word
dignity
ten times in his twenty-six-page opinion for the Court in
Windsor
. According to the
Oxford English Dictionary
, the word
dignity
means “the state or quality of being worthy of honor or respect.” Sometimes it's the simplest and most obvious things that say the most. The “state or quality of being worthy of honor or respect” is exactly what our case was all about.

Although Justice Kennedy did not directly address the debate about gay parents in his opinion, he did write that DOMA “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

It is almost impossible to overemphasize the significance of this statement. For decades, gay people and their relationships have been vilified as threats to children. In fact, Edie, who adores children, had explained to me at one point that one of the reasons why she and Thea never adopted kids was in large part because of these negative attitudes. As recently as the Proposition 8 campaign in California in 2008, gay people were maligned as perverts and pedophiles. At the very least, their suitability as optimal parents has been repeatedly questioned. Having the Supreme Court not even acknowledge these negative views about gay people as parents in
Windsor
was stunning. Instead, what mattered now was the humiliation that the kids of gay parents would feel if their parents couldn't be married.