Forcing the Spring: Inside the Fight for Marriage Equality (52 page)

“It was rough on both sides,” Paul said.

The plaintiffs, along with their families, and Chad and Kristina, were back
on the bus. Everyone was trying to analyze what had gone on inside the Court, without the benefit of the lawyers, who had taken a separate car.

The two couples had emerged from the Court with Chad, Olson, and Boies. The scene around them had been a zoo, with the network reporters who had been listening to the arguments racing past to connect with crews and go live, and there was no time to talk before they were standing at a podium, mics pointed at them.

They had not been there to hear Hilary Rosen’s comment to Ken Mehlman. “Pete Williams is being super negative right now,” she had said, referring to NBC News’s justice correspondent. “He said very little eagerness on a broad ruling, and it’s been retweeted thousands of times.”

Boies had reiterated that they should not try to read too much into what the justices had said, and for the most part they focused on the positive as the bus made its way across town to Morton’s Steakhouse for a postargument lunch that Olson had arranged.

“The justices were fascinating, fascinating,” Kris said. “It was very rapid-fire. The justices were interrupting each other. Their heads”—she grabbed her own—“there’s just so much going on!”

Everyone talked about the moment when Justice Kagan had pounced on Cooper’s argument that laws like Prop 8 are justified because marriage is an institution designed to further responsible procreation. “Suppose a state said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of fifty-five,” Kagan had asked. “Would that be constitutional?”

“No, Your Honor,” Cooper had said.

But when he tried to suggest that even with respect to couples over the age of fifty-five, it would be rare that both the man and woman would be infertile, Kagan was having none of it.

“No, really,” she said, as people in the courtroom began laughing. “I can assure you—if both the woman and the man are over the age of fifty-five, there are not a lot of children coming out of that marriage.”

“It’s almost like she trapped him,” Jeff said.

Sandy thought it was strange that Justice Thomas had swung around in his
chair, turning his back to the Court. He had famously not asked a single question during oral arguments in years. Elliott thought that Justice Ginsburg looked old and frail, with the tall back of her chair towering over her, and her whispery voice barely audible.

“I just wanted to help her out,” he said chivalrously.

The consensus was that that the solicitor general had done well. He was particularly strong in rebutting Cooper’s argument that it was rational for California voters to want to wait a bit and let the marriage debate play out elsewhere. “California did not, through Proposition 8, do what my friend Mr. Cooper said and push a pause button. They pushed a delete button. This is a permanent ban. It’s in the [state] constitution.” He also hit back on the not-enough-data theme, telling the justices that the same argument was used in the 1967
Loving v. Virginia
case, when defenders of interracial marriage bans had argued that social science was still uncertain with regard to how biracial children would fare. “And I think the Court recognized that there is a cost to waiting and that that has got to be part of the equal protection clause.”

But it seemed clear to everyone on board the bus that the justices weren’t buying the narrow argument he was selling. “I thought he got questioned pretty harshly on his eight-state solution,” Sandy said.

The liberals had been particularly antagonistic. Justice Breyer quickly picked up on the perverse incentive that would be created if the Court were to agree with Verrilli’s argument that it is particularly irrational for states like California, which offer gays and lesbians all the benefits of marriage but the name, to ban them from marrying. “A state that does nothing for gay couples hurts them much more than a state that does something . . . I mean, take a state that really does nothing whatsoever. They have no benefits, no nothing, no nothing. Okay?” Breyer had said. “So—so a state that does nothing hurts them much more, and yet your brief seems to say it’s more likely to be justified under the Constitution.”

Jeff and Paul talked about the “give me a date moment,” when Scalia had asked Olson about when, precisely, it became “unconstitutional to exclude homosexual couples from marriage? Seventeen ninety-one? Eighteen sixty-eight, when the Fourteenth Amendment was adopted?”

Boies would later say he would have liked to tell him that it happened when
Justice Scalia said it did, in 2003, in the
Lawrence
decision that struck down laws criminalizing sodomy, the one that Scalia, in his scathing dissent, said left “on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” But Olson, unwilling to spend a lot of time debating the original intent of the framers with a justice unlikely to be in his corner no matter the answer, had shot back with some questions of his own.

“When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” It happened, Olson finished, “when we—as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that—”

Scalia interrupted him. “I see,” he said, voice dripping with sarcasm. “When did that happen? When did that happen?”

During oral arguments before the Supreme Court in the
Bowers v. Hardwick
case, which upheld laws criminalizing sodomy before the
Lawrence
decision struck them down, then–chief justice Warren Burger had blurted out, “Didn’t they used to put people to death for this?” This morning’s rhetoric had been tame by comparison. “I expected much more vitriol,” Chad told Kristina.

Still, at times it had been difficult to just sit there. When Justice Alito started talking about the newness of same-sex marriage and the lack of data, Sandy grew angry. “I’m not an experiment,” she thought.

Spencer wondered whether Justice Scalia knew that that he and Elliott were sitting there when, in an effort to help out Cooper, he suggested one reason a state might be justified in banning gays and lesbians from marrying was to keep them from having kids. Cooper had been getting grilled by Justice Kagan, who kept demanding to know what harm would be caused if gays and lesbians were permitted to marry, and Justice Kennedy had picked up on it, asking, “Are you conceding that the point there is no harm or or denigration to traditional opposite-sex marriage couples?”

“It seems to me that you should have to address Justice Kagan’s question,” Kennedy had said.

“Mr. Cooper, let me—let me give you one—one concrete thing,” Scalia had interjected. “If you redefine marriage to include same-sex couples, you must—you must permit adoption by same-sex couples, and there’s—there’s considerable disagreement among—among sociologists as to what the consequences of
raising a child in a—in a single-sex family, whether that is harmful to the child or not. Some states do not—do not permit adoption by same-sex couples for that reason.”

“That hit pretty close to home,” Spencer said.

Overall, Jeff’s mom asked, how did Cooper do? There had only been enough tickets for three family members to watch the arguments, and she and Paul’s sister had volunteered to give up their seats and attend the rally instead. When the National Organization for Marriage had marched by, Jeff’s mom had been outraged by some of the signs. “How dare they,” she’d said.

“He did a good job,” Sandy said.

“He brought his A game,” Kris agreed.

They had been sitting near Cooper’s wife, who had waved and smiled at them before the arguments started. Cooper, spotting Kris afterward as she made her way down the stairs, had made a beeline over to her. He looked her in the eye and warmly shook her hand. They had all been at this for years now, albeit on different sides. The courtesy he showed her felt good, and she had responded in kind. He was just doing his job; he had never made it personal.

“
I felt like he respected our struggle and our right to be there, making these arguments, and that there were no hard feelings,” Kris said.

Cooper and his team were already at the Monocle, a restaurant on Capitol Hill where they always went to relax and recover at oral arguments. The Court had asked penetrating, difficult question of both sides, Cooper thought, and it could go either way.

“For the first time in this case, I don’t know how it’s going to turn out,” he said a few weeks later, after he had time to digest it all. “And that feels pretty damn good.”

At the plaintiffs’ gathering across town, a good deal of wine had been poured by the time Olson and Boies rose to speak. The lunch at Morton’s was in full swing, and everyone was eager to finally hear the blow-by-blow assessment of the two lawyers. In the background, a television was playing the just-released audio of the argument. But neither Boies nor Olson wanted to dwell on what had happened, and they spoke mostly in platitudes.

“I think we took a big step forward today,” Boies said, noting that there were plenty of conflicting views as the justices struggled to find a “route for us.” But he quickly moved on to a hypothetical world in which he would get to cross-examine Justice Scalia, as he had the witnesses at trial. “He, also, would have no place to hide,” he said.

Olson, too, talked about the district court trial, and Boies’s withering cross-examination, until finally Michele Reiner finally put her foot down. ”You might not want to do this,” she said. But everyone else would like to hear Olson’s thoughts about how the hour and a half they had just spent before the U.S. Supreme Court had gone.

Earlier, on the steps of the Supreme Court, the Reiners and Ken Mehlman had buttonholed Matt McGill, who tried his best to give them an honest assessment. “I was encouraged by Justice Kennedy’s question, recognizing that there’s kids on the other side of the equation,” he said.

Why did they spend so much time on standing? Michele asked.

“Because I think there are doubts,” McGill replied. “I think the chief justice certainly had doubts.”

But Olson mostly ducked, talking about the moots, and the process, and how he would read the transcript later to see how it had all shaken out, before returning to the courtroom that had delivered them their greatest victory to date, Judge Walker’s.

As the get-together broke up, Kristina tried not to jump to any conclusions. She had known, going in, that “we were all going to feel a little sick to our stomachs after it was all over, because of the tough questions that would be asked,” as she put it, and she knew as well as anyone that the Court was hard to predict. After the justices heard arguments on Obama’s signature overhaul of the nation’s health care laws, it looked to most to be dead on arrival. Instead, the chief justice switched his vote, and when the decision came out, the law was upheld.

But it was odd, she thought, that Olson and Boies spent so much of lunch reliving the glory days of the trial. Everyone was feeling raw and emotional, and they needed to hear the lawyers say that it would all turn out okay. And Olson’s half-joking farewell had left her even more unsettled.

“Well,” he said as he passed by her near the coat-check room, “if we lose, hopefully people will remember the party.”

R
obbie Kaplan was not known for having a Zen personality. But the typically frenetic lawyer took her seat at the counsel table for her first Supreme Court argument feeling refreshed and unusually relaxed.

Weeks earlier, she had attended an oral argument, just to watch how the justices interacted with each other and the lawyers before them. She’d been sitting behind two women military lawyers, both of them in uniform. When one of them started talking about her wife, Kaplan took it as a sign. “We’re going to win,” she said to herself.

Nothing that had happened since had changed that view. The argument fell on the week of Passover, commemorating the liberation of the Israelites from slavery in Egypt. That Sunday, at a Seder dinner she had hosted at the Mandarin Oriental Hotel for Edie and her entire legal crew, everyone had agreed that it did not feel coincidental that their case would be heard over a holiday that celebrates freedom.

Watching the justices grill Olson the day before during the Proposition 8 arguments had not intimated her in the slightest. “There’s nothing I can’t handle, even Scalia,” she said she thought. “I’ve been in front of angry judges before.” And while she’d been worried for months about arguing her case alongside Olson’s, listening, she had actually decided it was a good thing: Olson’s big ask made her request to the Court look like small potatoes.

And so, after heading back to her hotel, she’d ordered in some room service
Thai curry chicken, done a little reading, and gotten a massage, before swallowing two NyQuils to ensure a good night’s sleep.

Waking up, she said she had just one thought: “Let me at ’em. I’m ready.”

At the counsel’s table across the way sat Paul Clement. “Fasten your seat belt,” Cooper had told him when he’d agreed to defend DOMA, but Clement had still been caught off guard when his firm, King & Spalding, moved to withdraw from the litigation amid fierce criticism.

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.”