Then Comes Marriage cover
Courtesy of W.W. Norton
By Roberta Kaplan and Lisa Dickey
October 15, 2015

The following is adapted from Then Comes Marriage: United States v. Windsor, a new book from attorney Roberta Kaplan and Lisa Dickey. The book tells the story of Kaplan’s historic Supreme Court victory, in which she defeated DOMA and set the stage for legal gay marriage nationwide. In this adaptation, Kaplan recalls her oral arguments before the Supreme Count justices on March 27, 2013:

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.

The problem with this 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.

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 asked, “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.

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.

Roberta Kaplan is a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP. Adapted from Then Comes Marriage: United States v. Windsor and the Defeat of DOMA by Roberta Kaplan with Lisa Dickey. Copyright © 2015 by Roberta Kaplan. With permission of the publisher, W. W. Norton & Company, Inc. All rights reserved.

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