by Becker, Jo
The case had seemed a natural to him, different from Prop 8. “To me,” he had said one day over coffee, “this is about separation of powers. Congress has the right to a defense of the acts it passes.”
Rather than abandon his clients in the House of Representatives, Clement had resigned, a principled move that Cooper, and Olson as well, for that matter, admired. Attorney General Holder had even come to his defense, telling reporters that Clement was doing “what lawyers do when we are at our best.”
Olson and Clement approached cases with the same ferociousness, but their argument styles were completely different. Olson had a commanding presence, what Mark Corallo, who worked for them both in the Bush Justice Department, called a “put-the-lights-on-me star quality, like John Wayne or Gary Cooper, while Paul is an aw-shucks Jimmy Stewart.”
Now Clement waited quietly to begin, a slight hunch to his back as he peered through his oval wire-rimmed glasses. Some Supreme Court advocates bring reams of paper with them to oral arguments, filled with all the points they want to make and case law they might need to cite. Clement was known for bringing not a single note. Everything he needed was in his head, and the table in front of him was bare but for a pad he would use to jot down points he might want to make during his rebuttal time.
Edie was in her element. She was wearing a brilliant fuchsia scarf, the diamond brooch that Thea had given her, and, because she was a little deaf, special earphones to help her hear the argument. Nancy Pelosi, the House minority leader, stopped over to say hello, as did Valerie Jarrett, who was again in the audience. Edie’s heart had started acting up again, and she had recently been hospitalized for chest pains, but sitting there she was the picture of health.
Olson and Chad arrived separately. Olson wished Kaplan luck, then took his seat in the bar section, eager to hear more that might give him a better read on where the Court was headed. Chad sat alone farther back, against a wall, near a priest who was wearing his collar. The plaintiffs in Prop 8 were all headed home, but Chad’s work was not done.
He and his team at the Human Rights Campaign were working with Attorney General Holder to ensure that federal agencies were ready to move quickly to allow legally married same-sex couples to begin to collect benefits in the event that Edie won her case. As court was called into session, the priest nearby closed his eyes, clasped his hands together, and began praying, lips moving silently.
Kaplan had upped her passion game since the moot, and when she rose, her argument was sharply drawn. “Because of DOMA,” she said, “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.”
As had been the case the day before, a significant amount of the argument was taken up with the standing questions in the case. Several of the conservative justices, led by the chief justice, did not like the fact that after determining DOMA was unconstitutional, the administration had nevertheless filed an appeal with the Second Circuit to promote the defense of a statute it wanted to see invalidated. Where was the controversy? they wanted to know. It sounded to them like the government was asking for an advisory opinion. The answer—that because the president was continuing to enforce the law and as such was refusing to give Edie her tax rebate, there was a controversy that needed resolving—incensed Roberts.
If the president believed the law was unconstitutional, Roberts suggested that the best course of action would have been to stop enforcing it, “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’”
“I don’t see why he doesn’t have the courage of his convictions,” the chief justice snapped.
But the liberals who had seemed willing to join Roberts in finding that the Court had no jurisdiction to hear the Proposition 8 case did not appear as willing to go along for this particular ride. The government, Justice Kagan said, had a clear-cut stake in the matter that gave it standing. “There’s $300,000 that’s going to come out of the government’s treasury if this decision is upheld, and it won’t if it isn’t,” she said. Whether the government is “happy to pay that $300,000,” she added, was irrelevant.
Justice Ginsburg, during the Proposition 8 argument the previous day, had mentioned a 1964 case called McLaughlin v. Florida. It was the predecessor to Loving v. Virginia, and involved a Florida statute. Florida, at the time, banned interracial couples from marrying, and the law at issue also made it a crime for them to live together. The Court had struck down the cohabitation law, but waited another three years to deal with the larger question of whether interracial couples had the right to wed. “So first there was the question of no marriage, and then there was marriage,” she had said.
Resolving the DOMA case on the merits offered the Court a similarly incremental way to tackle the issue of same-sex marriage, and today she seemed far more comfortable, eager even, digging into the merits of the equal protection case against DOMA.
By denying federal benefits to same-sex but not opposite-sex couples, she declared, in one of the more memorable lines of the day, the law created “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”
Clement responded by asking the justices to take a trip down memory lane, to 1996, when DOMA was passed. At that time, it appeared as though Hawaii might be forced, by judicial fiat, to allow gays and lesbians to wed. Congress made what he said was a rational decision to act to define marriage as the union of a man and a woman for the purpose of eligibility for federal benefits, because the federal government had an interest in “uniform treatment of people across state lines.”
“Ms. Windsor wants to point to the unfairness of the differential treatment of treating two New York married couples differently, and of course for purposes of New York law that’s exactly the right focus,” he said. “But for purposes of federal law it’s much more rational for Congress . . . to say, ‘We want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma.’”
“He took a real stinker and made it compelling,” Monagas said afterward.
But Justice Kagan was not buying it, pointing out that the uniform rule that the federal government had pursued prior to the passage of DOMA, a law that targeted “a group that is not everybody’s favorite group in the world,” was one in which it uniformly recognized marriages that were recognized by the states. “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?” she asked. She quoted from the House report, which said that DOMA reflected a “collective moral judgment” to express “moral disapproval of homosexuality.”
Justice Kennedy, who had been looking up at the ceiling, leaned forward, placing his chin in his hand. Olson leaned forward as well.
“Just because a couple legislators may have had an improper motive,” Clement responded, was irrelevant; the question now before the Court was whether, under a rational basis test, the uniform rule defense passed muster.
The solicitor general, when he rose, made the case that heightened scrutiny should be applied. But if the justices had seemed to Chad, during the Proposition 8 argument, somewhat oblivious to the growing acceptance of same-sex marriage around the country, today the conservatives seized on what Justice Scalia called that “sea change” to try to knock down the notion that gays and lesbians represented a suspect class in need of heightened Court protection.
“You don’t doubt that the lobby supporting the enactment of same-sex marriage is politically powerful, do you?” Roberts asked Kaplan.
“I would, Your Honor,” she said.
“Really?”
“Yes.”
“As far as I can tell, political figures are falling over to endorse your side of the case.”
Kaplan refused to
be cowed. “The fact of the matter is, Mr. Chief Justice, that no other group in recent history has been subjected to popular referenda to take away the rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost.”
But with the Court as closely divided as it was, it was Justice Kennedy who was once again the center of attention. Kaplan, Clement, and Olson all hung on his every word. Kennedy spoke about the breadth of DOMA, and the fact that in denying some eleven hundred benefits to same-sex couples, it had become “intertwined with citizens’ day-to-day life” and was at “real risk of what has always been thought to be the essence of the state police power,” the regulation of marriage. That federalist theme was one he returned to repeatedly, which was worrisome not only to Clement, who thought it did not bode well for his clients, but also to the Prop 8 team. If Kennedy decided the case on the grounds that, as he put it at one point, the law passed by Congress was “not consistent” with the states’ historic regulation of marriage, then where would that leave them?
Kaplan was careful on that point, sidestepping when Chief Justice Roberts, and then Justice Scalia, repeatedly asked whether the law created a federalism problem. The justices often use lawyers as props to debate one another, and there was a complex dynamic between the two conservatives and Justice Kennedy going on here. Roberts, at least on the surface, was playing a high-stakes game. It seemed to members of both legal teams that rather than trying to get Kennedy to split the baby and strike down DOMA while upholding Proposition 8 on the basis that the definition of marriage should be left to the states, he was effectively trying to paint Kennedy into a corner: You can either stand with us, or stand with the liberals, but you can’t hide behind the fig leaf of federalism, and if you want to strike down DOMA, you will have to do so on equal protection grounds, which will have real implications for the ability of your beloved states to define marriage as they might wish.
Kaplan did a careful lawyer’s dance, telling the chief that the fact that DOMA intruded upon an area traditionally regulated by the states spoke to the “novelty” of the law, which in turn added to the perception that it was, in fact, motivated by animus toward gays and lesbians.
“So eighty-four senators . . . based their vote on moral disapproval of gay people?” Roberts asked.
Kaplan, answering, drew a line out of Justice Kennedy’s opinion in the Lawrence v. Texas decision. “No, I think—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.”
Walking out the Court’s bronze front door, Kaplan thought she had never had so much fun in her life. Her wife, Rachel Lavine, was waiting outside with their seven-year-old son, Jacob, who flew into her arms.
Chad, out on the courthouse steps again, watched as supporters swarmed Edie. “We love you!” people chanted. She tilted her head toward the heavens, stretched out her arms, and, with her pink scarf whipping wild in the wind, looked for all the word as though she might fly away.
The consensus of the network and cable legal correspondents, who were already pontificating live, was that the Court appeared ready to strike down DOMA, a far more bullish take than yesterday’s. Hilary Rosen, who was out on the courthouse steps helping the DOMA team navigate the media scrum, felt for Chad. As the president of the nation’s largest gay rights organization, he wanted badly to win both cases. But the insta-analysis, comparing day one with day two of the arguments, could not have been easy for him to bear.
Before any reporters could waylay him, he quietly slipped away. This was Edie’s day, and, wrung out from lack of sleep, Chad just wanted to go home to his semifurnished apartment and collapse.
“They’ve operated in this fantastic fantasy land of righteousness,” Rosen said after he had gone. “‘Everyone else thinks we are crazy, but we just believe!’ Well, the people who are most important threw cold water on them. No one else over the last four years could, but they did.”
The Court-trained media operation would continue right up through decision day. Justices do occasionally change their minds as opinions are circulated, with the result that a majority opinion becomes the minority’s dissent, and Ted Boutrous had told them that every little bit helped. Rosen had heard that Justice Kennedy read the Catholic Reporter, and she was hoping to run an ad the following week featuring Catholic families who supported marriage equality.
But the truth was that by then it would probably all be over but the shouting. On Friday, the justices would meet behind closed doors, in the conference room behind the chief’s chambers, and a preliminary vote would be taken. Each justice would spell out where they stood on each of the two cases. The justices speak by order of seniority, so the chief would go first, followed by Scalia. Then Kennedy, assuming he did not buy the standing arguments, or pass, would have to say where he was on the merits, meaning that the liberals would presumably have at least some inkling of whether there were five votes to overturn Proposition 8 and DOMA before they cast their lot.
It was, as Boies had said at the previous day’s press conference, now in the hands of the Supreme Court.
THIRTY-NINE
“DIGNITY”
Benjamin Franklin, one of the nation’s founding fathers, once said, “Three may keep a secret, if two of them are dead.” In Washington, a town that leaks like a rickety old dinghy, the Supreme Court is the exception to that rule.
The nine justices and their clerks swap opinions back and forth for months, yet throughout the Court’s history only rarely has an opinion spilled ahead of its announcement. Deliberations, with some notable exceptions, usually stay within the justices’ chambers until one dies and releases their papers. Even the Court’s timing remains frustratingly opaque; parties only learn which opinions will be issued on any given day when the justices begin reading them aloud from the bench.
Because the Supreme Court tends to hold on to blockbuster cases until the very last minute, everyone assumed that the Proposition 8 and Windsor decisions would be handed down near the end of the term, in late June. And because the Court divides its term into sittings, with each justice generally writing at least one majority opinion per sitting, it seemed likely based on a numbers game Court watchers call “Supreme Court Bingo” that Chief Justice Roberts was writing one of the opinions, while Justice Kennedy was writing the other, because neither had yet delivered an opinion from the March sitting when both cases were argued.
With no way of knowing when the decisions were coming, Chad and Olson had been filing into the Supreme Court every decision day since the middle of June. It was a measure of the importance Olson placed on the case; he was usually not so religious about needing to hear the outcome in person. Like a sports fan who won’t look away from a game for fear of his team losing, it was almost as though Olson believed that just by being there in front of the justices he could will them into ruling his way.
Recently the plaintiffs had begun joining them, bags packed, ready to jump on a plane to California for a rally in West Hollywood the minute they knew their fate. Repeating the same drill over and again was anxiety-producing, to say the least. Every time Chief Justice Roberts would announce, “Justice Kennedy has the next opinion,” Olson’s head would jerk up and Chad would lurch to the edge of his seat, heart thumping. It made Kris feel out of control, “like a leaf in the wind.” Jeff couldn’t sleep without taking half of a Xanax: “My mind, just—race, race, race,” he’d said after one abortive trip. For Edie Windsor and the DOMA team, convening every decision day at lead attorney Robbie Kaplan’s apartment in New York was equally torturous. Edie’s doctors, worried that the stress was too much for her weak heart, had forbidden her from traveling to D.C.
But finally the wait was over. The previous day, Justice Roberts had signaled that today, Wednesday June 26, was to be the final day of the Court’s term. Tonight, for the first time in years, they w
ould all go to sleep knowing the outcome.
“Well, well, well,” Chad said, jumping out of a black SUV as it pulled up to the hotel where the plaintiffs were pacing, waiting to be picked up. “How you guys doing?”
He was wearing a dark suit and the same silvery blue tie he had been wearing to court every day for the past several weeks. It was the one he’d worn at the press conference announcing the case in May 2009. Its breadth was out of fashion, but it had taken him this far, so rather than pick a new one he had taken it to a tailor and had it slimmed.
Getting dressed that morning, Sandy had grabbed everything red she owned, in honor of the Human Rights Campaign’s red “equal” logo. Peeking out from under her blazer was a red blouse, and in addition to her regular purse, she held up a random red nylon bag, “for luck,” for everyone to admire. Kris, always one to try for a little levity during times of stress, had to laugh at that particular accessory. “We’re going to the farmers’ market before the Supreme Court,” she joked. “That is so Sandy.”
“I brought Jeff,” Paul piped in. “If I have anything lucky, it’s him.”
They were all feeling a little superstitious, in part because today was the only day that Olson could not be with them. He was due to appear in the Third Circuit Court of Appeals in Philadelphia that morning on behalf of the state of New Jersey, which was challenging a law that limited betting on professional and college sports to Nevada and three other states. Defending the law was none other than Paul Clement, who had argued that DOMA was constitutional.
“Jesus, how could this happen?” Olson had said, crestfallen after Roberts made the announcement. Then, seeing the plaintiffs’ long faces, he’d moved to comfort them. “We haven’t lost the case, guys,” he said, promising to try to join them for a postdecision rally in West Hollywood.
