Forcing the Spring: Inside the Fight for Marriage Equality (32 page)

In any oral argument, time is of the essence. One key to Olson’s success as an appellate advocate was that he did not waste his time giving elaborate answers to questions that diverted him from the points he wanted to make. And no matter who was doing the asking, he kept his ultimate audience in mind.

So as the argument got under way, Olson kept returning to the broad constitutional arguments he believed would sway Justice Kennedy, namely that “the right to marry is a central aspect of the right to liberty, privacy, association, and identity,” that California “engraved discrimination on the basis of sex and sexual orientation into its governing charter” when it stripped over one million gays and lesbians of that right, and that it did so simply because they engaged in intimate sexual conduct that the Supreme Court found to be constitutionally protected in its
Lawrence
decision.

“California has built a fence around its gay and lesbian citizens. And it has built a fence around the institution of marriage, which the Supreme Court says, not based upon sex or procreation or anything else, is the most important relation in life. And the citizens of California within that one fence, because of their sexual orientation, are denied access to what every other citizen in California has,” Olson said. “That is a violation of the equal protection clause, and it’s a violation of the due process clause.”

But each time his rhetoric soared, the panel pulled him back down to earth, and specifically to California and the kind of state-specific arguments that Stewart had made with the hope of avoiding Supreme Court review.

Reinhardt, particularly, seemed to have lost his usual taste for boldness. This was a judge who had found that there was a constitutional right to doctor-assisted suicide and written that the right to bear arms is not an individual one, and his penchant for opinions that practically begged the Supreme Court to reverse him had led the satirical Web site
Onion
to joke that Reinhardt had struck down Christmas “in accordance with my activist agenda to secularize the nation.” Now here he was lecturing Olson on the doctrine of judicial restraint, using the Court’s opinion in a case Olson had argued before the Supreme Court called
Plaut v. Spendthrift Farm, Inc
.

Olson’s arguments in the Proposition 8 case would “require a holding that
any state that did not permit gay marriage would be in violation of the Constitution,” Reinhardt said, but “as you well know”—and as the Court held in the
Plaut
case—“we are advised not to reach a constitutional question unless we have to.”

Instead, both Reinhardt and Hawkins focused on the similarities between Proposition 8 and the Colorado initiative that the Supreme Court had struck down in
Romer v. Evans
. Wasn’t it true that in both cases, voters had stripped gays and lesbians of rights and protections that they had previously enjoyed? Hawkins had asked Cooper earlier. Why shouldn’t the court resolve the case based on those grounds—that a right, once given, cannot be rescinded—alone? Reinhardt now asked Olson.

If the Ninth Circuit panel did that, it would not have to address whether gays and lesbians constituted a suspect class deserving extra judicial protection because of the historic discrimination against them, or the immutability of sexual orientation. It would not have to grapple with Judge Walker’s finding that bans like Proposition 8 could not be justified by an interest in promoting an ideal child-rearing environment, because the children of gays and lesbians do just as well as those raised by opposite-sex parents. And it could strike down Proposition 8 without addressing whether bans elsewhere were unconstitutional, because only in California had the right to marry been given to gays and lesbians, then taken away.

The way Reinhardt was talking, it was as though the entire trial, with its mountain of evidence and expert testimony, had never taken place.

“This panel makes me nervous,” Enrique Monagas said to Sarah Piepmeier afterward. “It would be such a waste if they go narrow.”

Walking into court that morning, Chuck Cooper had shaken Olson’s hand and clapped his old employee, Matt McGill, on the back. But inside, he was seething.

It was bad enough that the state had declined to defend Proposition 8 in Judge Walker’s courtroom. But he had known all along that standing could be a problem for his clients if the state did not at least file an appeal, then delegate
the actual responsibility of defending the law to the initiative’s proponents. If no one had the authority to appeal Judge Walker’s decision, then it would stand, unchallenged, and he would lose on a procedural technicality.

“I thought that was incredibly irresponsible and incredibly inappropriate,” Cooper said later of what he regarded as the state’s negligence. “Fifty-two percent of the people of California deserved to have their views considered and the validity of their constitutional amendment tested by more than one federal district court judge.”

Cooper believed that Supreme Court precedent was on his clients’ side. California’s ballot initiative process effectively allows the people to act as lawmakers. And in a 1987 case called
Karcher v. May,
the Supreme Court had allowed members of the New Jersey Legislature to appeal a decision striking down a school prayer law when the attorney general declined to do so.

But the
Karcher
decision predated Justice Ginsburg’s comment in
Arizonans for Official English
. So, with his case potentially hanging in the balance, shortly after Cooper was hired to defend Proposition 8 he had hatched a backup plan.

The California Supreme Court had held that the regulation of marriage is a state function. But because county clerks actually issue marriage licenses on behalf of the state, they arguably might have the type of direct stake in the outcome of the case that the Supreme Court requires. Find a clerk willing to defend Proposition 8 on appeal, Cooper had directed his co-counsel, the Alliance Defense Fund, in the event the initiative’s backers could not.

But in what now appeared a serious misstep, the group had signed up the deputy clerk of Imperial County, rather than the actual clerk. Her motion to intervene had been denied by Judge Walker, and judging by the way the three-judge panel was now manhandling her lawyer, it was clearly not going to fare any better here.

The problem was that under California law, deputy clerks have no independent power, and in this case there was nothing to indicate that Imperial County’s clerk had authorized the deputy’s motion to intervene.

“We’re left completely at mystery to know why
the
clerk is not before us,” Judge Hawkins said.

“If the clerk isn’t here, we have a problem,” Judge Smith agreed.

Over the weekend, Boies had talked about how “it’s easy in the give-and-take of oral argument to seize on whatever arguments sound good, without thinking about the implications for the rest of your argument.” But knowing the trap and not falling into it are two different things.

Part of Boies’s job was to keep Imperial County out of the case; he and Olson knew full well that that was Cooper’s plan B in the event that his own clients did not have standing. To that end, Boies argued that Imperial County had no stake in the matter because the only clerks directly bound by Judge Walker’s order were the two named in the lawsuit, the clerks of Los Angeles and Alameda counties who had denied Jeff and Paul and Sandy and Kris their licenses. But Boies’s argument took a complicated turn when Judge Reinhardt wondered aloud whether all fifty-eight clerks should have been named as defendants, or the case filed as a class action, leading to a tangled discussion over whether Judge Walker’s decision would apply statewide if no one had the standing to appeal it.

Reinhardt then rebuked Boies, “a lawyer with your ability and fame and, uh, whatever else you have—even if you lost to Mr. Olson,” for failing to think all of that through.

To be fair, Reinhardt’s question was completely unexpected, and Boies had not been given much time to prepare; Olson had assigned the standing argument to his partner at the last minute because he wanted Boies to have a role. Olson, scribbling on his notepad, thought Reinhardt was wrong on the law. The plaintiffs had sued the governor and the attorney general because marriage in California is a state function; it was not necessary to sue anyone else. But there was little he could do but watch as Boies tried to rebound.

In practical terms, Boies told the judge, the governor and the attorney general had the authority to force the clerks in all fifty-eight counties to resume issuing licenses to same-sex couples. But in answer to another of Reinhardt’s questions, he conceded that another round of litigation might be necessary first.

As the half hour came to a close, it was clear that the panel had concluded that the best way to resolve the problem was to eliminate it, by finding a way to rule that Cooper’s clients had the right to appeal Judge Walker’s decision.

Judge Smith noted that the governor has no veto power over voter initiatives, and the California Legislature may not amend them. “I guess my problem is that in fact the governor’s actions and the attorney general’s actions have essentially nullified the considerable efforts that were made on behalf of the initiative to be placed on the ballot and obtain passage,” he said. “If they don’t appeal, and therefore no one can appeal, haven’t they effectively nullified the effect?”

During the prep sessions, Boies had answered similar questions by pointing out that the proponents of Prop 8 had already had their day in court. Now, though, he found himself deep in the weeds, arguing that was true “only in the sense, Your Honor, that in every standing case, if a state official does not appeal, it, quote, nullifies it.”

“The answer then is yes,” Judge Reinhardt declared.

Reinhardt and Hawkins seemed unlikely to uphold Proposition 8 as constitutional: The lawyer’s contention that Proposition 8 was about ensuring that children were raised in two-parent household “sounds like a good argument for prohibiting divorce,” Judge Reinhardt said, “but how does it relate to having two males or two females marry each other and raise children?”

But like Smith, they were sympathetic to Cooper’s argument that his clients had a right to defend the initiative. Both men had, as Hawkins put it, been on the “wrong side” of the
Arizonans for Official English
case when it passed through the Ninth Circuit, reaching the merits of the challenge to the Arizona initiative only to be reversed by the Supreme Court. “I thought it was the right side!” Reinhardt interjected.

It bothered Reinhardt that the court kept putting up procedural roadblocks that barred the courtroom door to people. This case offered a way to claw back some of the ground they had lost, if they could find a way to distinguish California from Arizona.

In the
Arizonans
case, Justice Ginsburg had noted that the court was “aware of no Arizona law appointing initiative sponsors as agents of the people to defend, in lieu of public officials, the constitutionality of initiatives.” Now, again out of left field, Reinhardt threw a question at Boies. “Why shouldn’t we ask the California Supreme Court what the law is in California?” Reinhardt asked. “Rather than kill an initiative that the voters have passed, wouldn’t it be advisable to attempt to get a legal answer to this question?”

Chad wanted to scream. He still worried that another case could overtake this one and reach the Supreme Court first; he wanted Olson to be the one to frame the argument for the justices. This would delay them for months, maybe even years. But when a judge is as hell-bent on a course as Reinhardt seemed to be on this one, there is little to be done. By the time court wrapped up, the legal team had resigned itself to a new and unwelcome reality: Their case was about to take a detour.

“What a mess,” said Theane Evangelis.

B
y White House standards, the party that took place on February 6, 2011, was an informal one. The Obamas had set up big-screen televisions in the State Dining Room and invited some friends over to watch the Green Bay Packers play the Pittsburgh Steelers in the Super Bowl.

Stepping out into the hallway for moment, Attorney General Eric Holder was surprised to find Obama standing there, near a portrait of John F. Kennedy. It was rare to catch the president alone, and he decided to take advantage of the moment.

While the Proposition 8 case had been perking along, a number of other federal lawsuits involving the rights of gays and lesbians had been filed in federal courts around the country. These lawsuits did not challenge same-sex marriage bans. Rather, they more narrowly challenged the provision in the Clinton-era Defense of Marriage Act that denied spousal benefits to same-sex couples who had married in states where it was already legal.

Except under extraordinary circumstances, the Justice Department has a duty to defend laws passed by Congress, regardless of whether the occupant of the White House likes them or not. For that reason, Obama and Holder were dutifully arguing to uphold DOMA, as the law was known, and taking incoming fire from gay rights groups that reminded Obama at every turn that he had promised to repeal, not defend it.

Holder thought he had found a way out. But before he could tell the
president about it, Obama beat him to the punch. Before his career in politics, Obama had taught constitutional law, and now he shared what he believed to be an elegant solution to the DOMA problem.

Listening, Holder had to laugh. “I was going to tell you exactly the same thing!” he recalled telling the president. “And I remember telling him this was one of the reasons why I was proud to serve in his administration, because what he was saying was not going to be without controversy. But it was the right thing to do.

“And, as is typical of him, he just kind of said, ‘Yeah, it is right. I think it’s the right thing to do, Eric, so let’s get back to the game.’”

The quest for a solution had begun twenty months earlier when the Justice Department filed a brief defending DOMA in a case called
Smelt v. United States
.

The Civil Division of the Justice Department, which defends cases brought against the government in the lower courts, had inherited its defense of DOMA from the Bush administration. Tony West, the political appointee who headed the division, went through the brief before it was filed, stripping out arguments that he felt were inconsistent with the new administration’s values or unsupported by evidence. Gone was the argument that states had a right to make judgments consistent with prevailing “societal mores.” Relying on the same kind of sociological evidence Olson had used in the Prop 8 trial, West also abandoned the argument that DOMA was justified because it promoted an ideal child-rearing environment. But his effort to strike a balance was overshadowed by the arguments the brief did make.

Instead of simply outlining the procedural flaws with the case that would eventually result in its dismissal, the Justice Department had mounted a multifaceted defense of the law’s constitutionality. Echoing Cooper’s argument in the Proposition 8 case, the brief argued that adopting a “cautious, wait-and-see approach” to same-sex marriage was perfectly rational. The biggest uproar, though, was caused by a citation West had overlooked buried deep within the brief. In defense of the law’s provision that states did not have to recognize same-sex marriages performed elsewhere, it referenced a decades-old Supreme
Court decision that held that states do not have to recognize marriages between cousins or an uncle and a niece.

The June 11, 2009, brief instantly became a flashpoint for activists who were already disappointed with a president they felt was an “unreliable ally,” as Segura had put it during the Prop 8 trial.
OBAMA DOJ COMPARES GAY MARRIAGE TO INCEST
, read one headline.

At the White House that Saturday, the president hit the roof as he read through his daily package of news clips. West had consulted with the White House Counsel’s Office and given lawyers there a copy of the brief before it was filed, but apparently no one had filled in the president.

Obama fired off an e-mail to Valerie Jarrett, one of his oldest friends and closest White House advisers, and his primary liaison to the gay community. Jarrett was attending the wedding reception of the president’s domestic policy adviser when she checked her BlackBerry and saw the president’s sharply worded message. At her table was Rahm Emanuel, Obama’s chief of staff at the time, and Hilary Rosen, a powerful and openly gay Democratic consultant, who recounted the conversation this way:

“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.