by Becker, Jo
“The president has just gotten around to doing his weekend reading, and he’s not happy,” Jarrett told Emanuel.
Rosen wasn’t sure what had irked the president, but she sensed an opportunity. “I’ll tell you what he shouldn’t be happy about,” she said. “He shouldn’t be happy about this DOMA filing.”
“That’s exactly what he isn’t happy about,” Jarrett replied.
Turning back to Emanuel, Jarrett said, “He’s going to do want to do something about this.”
“I don’t know what he can do about it,” Emanuel replied.
“Well, we are going to have to figure something out.”
On a personal level, Eric Holder had never liked DOMA. Neither had Tony West. Both were African Americans who saw distinct parallels between the civil rights battles of the past and the present-day struggle for marriage equality. Standing up for a law both felt was discriminatory felt, as West put it, like standing “on the wrong side of history.”
So when the president’s displeasure filtered back to the Justice Department, neither man was averse to taking a second look at the department’s position. But it was not as easy for them to drop the defense of a law passed by Congress as it been for the governor and the attorney general of California to cease defending a law passed by state voters.
The ethos of the department is that the rule of law and the founders’ vision of three coequal branches of government require the executive branch to strongly defend laws passed by the legislative branch. Both men were steeped in the department’s traditions, having landed their first jobs there when they were fresh out of law school. However personally distasteful they found DOMA, both knew that if the Justice Department was going to take the momentous step of declining to defend a duly enacted law of Congress, it had better have a damned good legal reason.
To avoid any perception that the department’s legal judgments are politically motivated, appointees like West generally, though not always, defer to the recommendations of civil service line lawyers. The line lawyers’ initial take was that the department had a duty to make any and all arguments in defense of DOMA. So West arranged a series of meetings with gay activists so they could hear the critique of the law’s constitutionality directly from the community that it impacted.
Since the Smelt dustup, three other DOMA challenges had been filed. But all were in circuit courts of appeal that had already decided that the highly deferential rational basis test—requiring only that the law be rationally related to some legitimate government purpose—was the proper standard of review for laws that target gays and lesbians.
The department had been arguing for years that DOMA was rational. It would be burdensome for the federal government to have to administer benefit programs on a state-by-state basis, depending on the marriage laws in effect, the argument went, and so it was rational to want a uniform rule that simply defined marriage as a union between a man and a woman. The courts would not give the department’s position much, if any, weight if it suddenly did an about-face, especially given the leniency of the standard. And it could damage the institution’s credibility in other cases.
But as West put it, “it didn’t take a rocket scientist” to know that one of these days someone was going to file a challenge to DOMA in a circuit that had yet to decide whether gays and lesbians should be considered a suspect class, where it could be argued that heightened scrutiny applied, as Walker had found it did in the Prop 8 case. When that happened, they could reassess.
Unbeknownst to West, the hypothetical case he envisioned was already in the works.
Robbie Kaplan said it took her “all of a few seconds” to decide to help Edie Windsor get her money back from the federal government, about the same amount of time Edie said it took her to decide she wanted Kaplan as her lawyer.
Sitting in Edie’s apartment overlooking Greenwich Village one morning, the two women took turns telling the story of their first meeting, in 2010. Edie’s wife, Thea Spyer, had recently died. Grief-stricken, Edie had been hospitalized with a condition called cardiomyopathy, also known as “broken heart syndrome” because it can be brought on by stressful situations like the death of a loved one. When she was released, she found she owed the federal government $363,000 in estate taxes.
Had she married a man, his estate would have passed to her tax-free. But because DOMA prohibited the federal government from recognizing her marriage, Edie had to pay taxes on her wife’s half of the apartment they owned in New York City’s Greenwich Village and a cottage they had bought years earlier in the Hamptons.
In the hospital, Edie had been quite prepared to die. She was seventy-nine years old, and she missed Thea desperately. But the tax bill made her mad. It made her want to fight.
First, she called Lambda Legal, the group that had so vehemently opposed the filing of the Prop 8 case. No one returned her call. She tried again. Finally, a lawyer got on the phone. Would the group be willing to challenge DOMA on her behalf? she asked.
“No,” the lawyer answered. “Wrong time for the movement.”
“But I have a documented marriage,” she said.
“No. Wrong time.”
It was then that a friend of a friend referred her to Kaplan. A corporate litigator at the Manhattan-based firm of Paul, Weiss, Rifkind, Wharton & Garrison, she typically represented clients like JPMorgan Chase. But she was an outsider who might not mind bucking the gay rights establishment, which remained opposed to bringing federal lawsuits of any kind. And she had some experience; a few years back, Kaplan had unsuccessfully challenged New York’s ban on gay marriage in state court. Edie placed the call.
“And the following day, that walked into my life,” Edie said, pointing at Kaplan, who laughed uproariously before recounting her own impressions.
Edie was the perfect plaintiff, Kaplan thought, glamorous in an old-fashioned way. Her hair framed her face in soft blond waves, her oval nails were perfectly manicured, and she wore pink lipstick and the same strand of pearls that she had on her wedding day. Though she was a frail slip of a thing, she carried herself with the confidence of a woman used to being admired, and her life story was a vehicle to tell the broader history of discrimination against gays and lesbians.
Edie had known ever since she was a small girl that she loved women. She was born in 1929, in Depression-era Philadelphia, and she could still remember her shiver of delight when, at age seven, she put her arm around another little girl after a day of roller skating. She tried to fight it, dating loads of boys in high school and eventually marrying one in 1951.
“I wanted to be straight,” she explained.
It lasted less than a year.
“Honey, you deserve someone who thinks you are the best thing in the world,” she said she told him, “and I can’t be that.”
The two divorced amicably, and Edie moved to Manhattan. Her apartment was on the fourth floor of a walk-up building, with room for just a bed and a sink, and bathroom she had to share with a guy down the hall. But the city was just as it had been described in a lesbian pulp fiction paperback she’d purchased, a place where “anything could happen,” where “you could even kiss a girl.”
“I remember thinking, ‘Where?!’” she said, laughing.
Edie boarded a bus to Washington Square Park and stopped a woman wearing a trench coat and pink button-down shirt. These were the years leading up to the Stonewall riots that Chauncey had described in the Prop 8 trial, when the police still regularly sent snitches into gay bars. Undaunted, Edie boldly asked the stranger if she knew where women went to meet. The woman showed her the way to a bar she called “Ls.”
Being a lesbian meant being a career woman at a time when that was still exceptional. With no man to take care of her, Edie worked first as a cosmetologist, then as a bookkeeper, then put herself through New York University’s master’s program in applied mathematics. To support herself, she worke
d as a programmer on one of the world’s earliest computers for the Atomic Energy Commission and, after she graduated, for IBM.
But it was Edie and Thea’s love story that had Kaplan from the minute she walked into Edie’s small apartment. Every available surface was cluttered with photographs, a visual ode to the forty-two years they spent together.
There they were in black and white, young and beaming not long after they met in 1963. They had run into one another at Portofino, one of the few restaurants where lesbians were welcome. It was owned by Elaine Kaufman, whose Upper East Side saloon Elaine’s became a famed haunt of New York’s literary crowd.
In another shot, Edie is wearing the circular diamond brooch Thea gave her four years later when she proposed. The two women had been driving to the Hamptons, and Edie said yes immediately, though of course back then it was completely impossible. Both knew a traditional wedding band would have raised too many questions; if anyone at work found out that Edie was a lesbian, she could lose her job. President Eisenhower’s executive order prohibiting federal contractors from hiring homosexuals was still in effect, and Edie still shuddered thinking back to her first security clearance interview.
They spent much of their courtship dancing. They never stopped, even after Thea was diagnosed with multiple sclerosis in the 1970s. The photos document her decline: Edie holding Thea tight on the dance floor as the disease began to take its toll, and later, sitting on her lap as Thea spun them both around in her wheelchair.
In 2007, Thea’s doctor told her she did not have long to live. “Do you still want to get married?” Thea asked Edie. She did. Enlisting friends and medical assistance, they managed to fly to Canada, which two years earlier had become the fourth country in the world to allow gays and lesbians to wed. A documentary crew followed them. In the footage, both look joyous, though by then Thea was so crippled she could barely lift her arm.
“Now that is a marriage,” Kaplan thought.
Walking over to a computer, she played Edie a clip of her argument in the New York Court of Appeals. Kaplan wore a suit and a Rolex watch. Her chin-length hair was cut in layers and expertly colored, and she exuded confidence. And like Edie, the lawyer was a lesbian, who knew firsthand what discrimination felt like. Edie was sold, but between the tax bill and the beating she had taken during the 2008 financial market crash, her savings were depleted.
“How much will it cost?” she asked.
Kaplan made a zero with her thumb and middle finger. Her firm would handle the case pro bono, she explained.
“It’s not just for you,” Kaplan told Edie. “I have a wife, and a son, and I care.”
“I thought, if anyone can do this, she can,” Edie said.
On November 9, 2010, Kaplan filed a lawsuit on her client’s behalf in the U.S. District Court for the Southern District of New York. To fend off criticism from gay rights legal groups, Kaplan brought in James Esseks, the new director of the ACLU’s Lesbian Gay Bisexual Transgender & AIDS Project, and she deliberately kept her argument narrow.
Windsor’s brief made clear that the court did not have to decide the larger question of whether the Constitution contained a right for gays and lesbians to marry. It did not challenge a provision of the law that gave states the authority to decline to recognize same-sex marriages performed elsewhere. It demanded only that the federal government refund the estate taxes Edie had paid, on the grounds that DOMA treated married same-sex couples differently than their straight counterparts for no good reason. The opportunity that the Justice Department had been waiting for had arrived.
With a deadline looming to file a response in both the Windsor case and a related DOMA challenge out of Connecticut, Holder convened a working group involving multiple divisions of his department to take a fresh look, unshackled from precedent, at whether the defense of DOMA ought to be abandoned.
Did gays and lesbians meet the Supreme Court’s test for heightened scrutiny? It was possible to take the position that it did, because the Windsor case was filed in the Second Circuit Court of Appeals, which had yet to consider what standard of review was appropriate when considering laws that target gays and lesbians for disparate treatment. If so, could the department still mount a plausible defense that the law was constitutional? That was an equally important question, because the Justice Department had on rare occasions abandoned the defense of a law when none could reasonably be made.
Line lawyers in West’s shop considered the same questions that Judge Walker had: the history of discrimination against gays and lesbians, the immutability of sexual orientation, and their relative power to protect themselves in the democratic process.
West was in Milan on vacation with his family when the lawyers called for one last group discussion. It was an intense, hour-and-a-half call, and not everyone agreed. But by the end, a consensus had emerged: Heightened scrutiny applied, and under that standard, DOMA could not pass constitutional muster. As such, the department did not have to defend it.
“I was never so proud of those line lawyers as I was that night,” West said.
The Civil Division’s recommendation carried a lot of weight, because it is the government’s defense shop. But other divisions were also involved in the debate, and one very important one remained adamantly opposed.
The Office of the Solicitor General argues cases on behalf of the government at the Supreme Court. Elena Kagan, Obama’s first solicitor general, had recently left to take her place on the Supreme Court. It was currently run by Kagan’s deputy, Neal Kumar Katyal, while the president searched for her permanent replacement.
Four of the justices of the Supreme Court had served in the Justice Department, including Chief Justice John Roberts, and would understand what a break from tradition this would be. The Justice Department was not in the habit of arguing that the laws of the United States should be subject to heightened scrutiny. It made it harder to defend them, which was their job. Katyal worried it could damage the department’s credibility at a critical juncture: The Office of the Solicitor General was gearing up to defend one of President Obama’s signature, and most controversial, accomplishments: a massive overhaul of the nation’s health care system, nicknamed Obamacare.
“The context was, what happens if President Bachmann gets elected and doesn’t want to defend health care?” West recalled, referring to Congresswoman Michele Bachmann, who, like the rest of the Republican field of presidential candidates, was campaigning against Obamacare in the hope of denying the president a second term.
The debate culminated in a conference call just before Super Bowl weekend that one official who participated called a “knock-down drag-out.” Both sides made their case to the attorney general.
“There was a split, strong feelings,” Holder recalled. “At the end of the day, this was something I had to resolve.”
Robbie Kaplan was waiting for the government to file its reply brief in the Windsor case when one of the Justice Department’s line attorneys called her office. Would she be willing to agree to a thirty-day delay?
The Justice Department had kept a tight lid on its deliberations, and Kaplan still saw it as her adversary. Not happening, she replied. Edie’s health had worsened, and she could easily die before the case was resolved.
West then called her personally. “We are thinking about what we going to say,” he told her. “We need time to decide how to respond.”
Kaplan found that hard to believe; she fully expected the government to file its pro forma defense.
“Please,” West begged. “The attorney general of the United States is asking you for time.”
“I said, ‘Okay, if that’s what is really going on, and you really are thinking about this, then please tell the attorney general and the president that I am going to be praying for them.’”
“There are lot of important decisions that you make as attorney general,” Eric Holder said, reflecting ba
ck on those days of deliberation. “But there are a few that even when you are in the process of making them or deciding them, you understand that they are going to be potentially historic. This was certainly one of them.”
In deciding the way forward, Holder said he kept thinking about the past. He went back to 1996, to a congressional record that explicitly stated that the intent of DOMA was to express moral disapproval of homosexuality and prevent “wavering children” from experimenting. Then he went further back, to the era of Jim Crow, and separate water fountains.
“The way in which gay people through history have been discriminated against, opportunities denied them, the parallels are very striking. There are stereotypes drawn, negative stereotypes, and policies based on those stereotypes, laws based on those stereotypes. And it seemed to me that you could not help but compare that treatment, that history of discrimination, with the way in which African Americans had suffered. The inability to obtain basic rights, basic American rights, because of who you are.”
He considered the arguments about political power, and those same parallels kept coming up. The election of the first African American president, the appointment of the first African American attorney general, showed that “we are in a fundamentally differently place than we were fifty years ago when it comes to black people,” yet African Americans were still considered a suspect class.
All of that argued for applying heightened scrutiny. But what about the institutional concerns that had been raised by some of his top lawyers? Again, he felt the weight of a shared history. When the Supreme Court issued its Brown v. Board of Education decision, it did more than just desegregate schools. “It was an affirmation of black life. To say that the policy was inherently unequal necessarily meant that black people were the equal of white people and need to be treated that way.”
