In Latin, the word certiorari is a present passive infinitive; it means “to be informed.” When the Supreme Court justices grant certiorari, or “cert,” in a case, it means that they have agreed to hear it. Most of the Supreme Court’s docket consists of cases raising legal issues that arise repeatedly, so the Court often has to choose from several cases which ones to hear. When the legal issue involves the constitutionality of a federal statute, the solicitor general usually steps in to make a recommendation to the justices as to which case the SG thinks they should take.
On July 3, 2012, the solicitor general filed two cert petitions, one recommending that the Supreme Court take the Gill case, and the other recommending Golinski, most likely as a backup if Justice Kagan decided that she had to recuse herself in Gill. I, of course, was not a happy camper about the fact that two other cases had received the solicitor general’s seal of approval, and not ours. What really troubled me, however, was that Golinski, like Windsor, did not yet have a circuit court decision. If the solicitor general was going to take the unusual step of filing a petition for cert before judgment, I didn’t see why he should prefer the Golinski case over Edie’s.
I was irked but also encouraged: if the solicitor general was willing to overlook Golinski’s lack of an appellate decision, then that should not hold us back, either. I decided that we too should file our own petition for cert before judgment.
With this step, however, our legal team would be entering unfamiliar territory. Bringing a case in a trial court or arguing an appeal before a circuit court is one thing, but the Supreme Court is another matter altogether. Like any court, the Supreme Court has its own quirks, rules, and customs that can be very different from those of the lower courts. It even has its own loose collection of a few dozen lawyers who argue a disproportionate number of its cases.
A Reuters report examining Supreme Court cases between 2004 and 2012 noted the enormous influence of this group: In that period of time, 17,000 attorneys filed cert petitions before the Supreme Court. Of those, a small group of sixty-six were six times more likely to get their cases accepted. To quote Muriel Spark’s Miss Jean Brodie, these lawyers are the “crème de la crème,” or “the elite of the elite.” Reuters noted that “although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide.”
While I had great confidence in our case and in our team, my instincts told me that we needed help. For starters, none of us had ever filed a petition for cert before judgment (which is a rarely used procedural mechanism in any event), and we weren’t exactly sure how to go about doing it. We needed to get someone on board quickly who knew the ins and outs of the Supreme Court—a kind of “local counsel” for the high court, ideally a member of the Supreme Court bar. But who? Jaren and I discussed the issue and decided that we did not want a lawyer from another firm, because that could get awkward. We both preferred an academic, ideally one who was gay. That narrowed the field considerably, and we quickly zeroed in on a Stanford law professor by the name of Pamela Karlan.
On paper, Pam was perfect. She specialized in civil rights cases and had worked for the NAACP Legal Defense Fund in the 1980s, where she litigated voting rights cases throughout the South. She had also clerked for Supreme Court Justice Harry Blackmun, who, before he died, publicly gave Pam credit for writing much of the dissent in the infamous Bowers v. Hardwick case, which had upheld a Georgia antigay sodomy law in 1986. At Stanford, Pam was cofounder of the Stanford Supreme Court Litigation Clinic, which typically handles several cases a year before the Supreme Court, and she brought her Stanford law students in to work on these cases. In fact, the Stanford clinic has taken part in more Supreme Court cases than all but a few private law firms.
Pam is the real deal. She is known for her brilliant mind, not to mention her prodigious work ethic, and had been repeatedly mentioned as being on the short list of potential Supreme Court nominees. What impressed me most, though, was a comment that she had made in 2009 about why she would probably never be nominated to the Supreme Court: “Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime.” Here was a woman who, like me, speaks her mind. Pam is a clear-eyed, unafraid, openly gay genius who knew her stuff—exactly the kind of person I wanted on our team.
The solicitor general’s brief came out on July 3. The next day, even though it was the Fourth of July holiday, I decided to go ahead and e-mail Pam. While I am definitely not known for doing anything at a slow pace, in this case, we really had no time to waste.
Reading my rather terse e-mail now, it is a wonder I thought anyone might suddenly throw aside their hot dogs and Fourth of July fireworks to respond.
Professor Karlan:
I am a partner at Paul, Weiss and counsel to Edith Windsor in the estate tax DOMA challenge pending in the Second Circuit. (Decision by SDNY Judge Barbara Jones on rational basis grounds was issued last month.)
I was wondering if you had any time to discuss some issues with us. I very much apologize for e-mailing you on the July 4th holiday; unfortunately, the issues are somewhat time sensitive.
Thanks so much in advance for your time; any help you can provide us will be greatly appreciated.
Best regards,
Robbie Kaplan
Pam read this scintillating e-mail while standing at her kitchen sink in Palo Alto, dressed in biking clothes for her morning ride—which she graciously postponed in order to talk with me on the phone. “Yeah, sure, I’d love to help,” she said. Just like that, we signed on the newest Windsor team member who became our not-so-secret weapon.
MONDAY, AUGUST 6, 2012, was one of those unbearably hot and sticky summer days in Washington, DC. Jaren Janghorbani, Joshua Kaye, James Esseks, and I plunged into the humidity, traveling to the capital for a meeting at the solicitor general’s office as part of our ongoing quest to get Edie’s case heard by the Supreme Court. At Jaren and Julie’s suggestion, I had added Josh, a fabulous lawyer and person, who had recently come back to Paul, Weiss after completing a judicial clerkship.
With Pam Karlan’s help, we had filed our petition for cert before judgment on July 16, but the chances the justices would choose Windsor were still very low. It is very rare for the justices to receive petitions for cert before judgment, and even rarer for them to grant one—in Pam’s estimation, they only hear such a case once every few years at best. And, of course, our position was made weaker by the solicitor general’s filings recommending that the court take Gill or Golinski, but not Windsor. (The likely reason why the solicitor general had chosen Golinski was because the district court in that case had decided the issue on heightened scrutiny grounds—the DOJ’s preferred argument—rather than on a rational basis, as Judge Jones had in our case.) Still, the justices would not be making their decision until the fall, which meant that we had time to try to persuade the solicitor general’s office to change its mind and back Windsor instead. That was what this meeting was all about.
We gathered in a giant conference room at the Department of Justice, and as at any government meeting in DC, there were dozens of lawyers present. The meeting was run by Principal Deputy Solicitor General Sri Srinivasan, a sober-minded son of Indian immigrants who would later be appointed to sit on the DC Circuit and was widely reported to be on President Obama’s short list for the Supreme Court. Sri was the person we needed to persuade, and we wasted no time telling him the compelling facts of Edie’s case.
As everyone knew, of the nine Supreme Court justices, the one whose vote likely mattered the most was Justice Anthony Kennedy. Four justices—John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito—were solidly conservative in outlook and voting records. Four others—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—were considered to be reliably liberal. Justice Kennedy was therefore the deciding fifth vote in most high-profile cases, the justice we needed to convince in order to win.
I strongly believed that of the four pending DOMA cases the justices could choose to hear, Edie’s was likely to resonate the most with Justice Kennedy. After all, Edie and Justice Kennedy were contemporaries in age, and I thought that her stories of FBI interviews and McCarthy-era fears were sure to be familiar to him. An article in Time magazine had reported that when Justice Kennedy taught at the McGeorge School of Law in Sacramento in the 1960s, one of his closest friends was a closeted gay man, which meant that he would probably find the facts of Edie’s story compelling. I brought all of this up at our meeting and reiterated the other strong points of our case: the fact that Edie’s tax-bill injury was so straightforward; that she was such an appealing plaintiff; and that there was no chance she and her spouse could split up during the case.
But Sri and the other government attorneys did not seem to be very interested in the facts. They wanted a case that had a circuit court decision, plain and simple. Gill had one, but the possibility of a Kagan recusal loomed over that case. Golinski and Pedersen did not have one, and of course neither did Windsor. And Sri was unmoved by the fact that we had filed a petition for cert before judgment, since the solicitor general had already done that for Golinski, which was then still pending in the Ninth Circuit.
In fact, in one sense, the government’s cert before judgment petition in Golinski had backfired from a procedural standpoint. Once the Ninth Circuit judges became aware of it, they decided to stay the case rather than issue a decision. The government’s chances of persuading the Court to hear Golinski thus actually decreased. At our meeting, Sri assumed that the same thing would happen with Windsor. “How do you know the Second Circuit won’t just stay your case?” he asked me.
“They won’t,” I said. “Believe me, I may not be a Supreme Court practitioner, but I do know my home court in the Second Circuit. Not only are they not going to stay the case, but we are going to get a very fast decision.”
Sri raised his eyebrows. He did not seem to believe a word I had said, but I forged ahead. “I am a New York lawyer,” I told him. “That’s what I do. You guys know the Supreme Court, but I know New York courts. We are going to get a very fast decision from the Second Circuit, you will see.”
I believed and hoped that I was right, because that was our only chance. Three weeks after our meeting in DC, the solicitor general filed another brief, once again advising the Supreme Court in no uncertain terms to take either Gill or Golinski, with the Windsor and Pedersen cases pretty much an afterthought, to be considered only in the unlikely event that the Supreme Court rejected the other two.
Our poor position in the four-way race to the Supreme Court was not only disheartening, it was threatening to hurt our chances before the Second Circuit. I found this out in August, when I contacted George Washington University law professor Alan Morrison, who had come up with an ingenious new argument as to why DOMA should be struck down.
Alan’s daughter, Nina, is a lesbian and a good friend of ours, as well as a highly regarded criminal defense attorney, so Alan had been interested in the DOMA challenges from the very beginning. He had called Mary Bonauto soon after she filed Gill in 2009, offering to help out in any way he could.
As Alan plunged deeper into the issues surrounding DOMA, he came to a profound realization. “I had an insight,” he says, “that DOMA was not only mean-spirited and vicious, but it had other negative consequences, too: it meant that all the federal laws and rules about ethics simply didn’t apply to same-sex couples.” In other words, if a married lesbian was working for the federal government, DOMA ensured that her wife wouldn’t be subject to any of the disclosure laws, recusal rules, or conflict of interest regulations with which married federal employees normally must comply. This was not only nonsensical, it was contrary to sound public policy and even national security.
“I realized that this was important, because it showed how irrational DOMA was,” Alan says. “No rational person could have meant to do that.” Alan asked Mary if he could write an amicus brief about this for Gill, and she readily agreed.
Shortly after that brief was filed, Alan came to a second realization. “The same thing was true about bankruptcy and tax,” he says. “There were huge loopholes in the tax laws, for example, that allowed same-sex couples to engage in tax avoidance in ways that opposite-sex couples couldn’t.” In other words, DOMA made it possible for same-sex couples to flout all kinds of laws, an unintended, and heretofore mostly unnoticed, consequence. Alan added these arguments to his brief and filed it in the Ninth Circuit in support of Golinski.
When I read Alan’s briefs, I was struck by how powerfully they articulated a completely different anti-DOMA argument—one that might appeal to more conservative judges. I e-mailed Alan right away to ask if he would file a brief in the Second Circuit for us, too. He told me he was very busy and suggested I just cite his existing briefs, so he would not have to write a new brief for us. The reason he was begging off was apparent: he didn’t think Windsor had a chance of making it to the Supreme Court.
Stubborn as always, I decided to call Alan and give him the same pitch that I had delivered to Sri. “Listen,” I said, “this case is moving fast. We’re going to get a decision soon, and we really need your brief.” Thankfully, Alan said yes, and his was one of the seventeen amicus briefs filed on behalf of Windsor in the Second Circuit. We also had briefs filed by 145 members of the House of Representatives; the American Psychological and the American Psychiatric Associations; the Partnership for New York City; the states of New York, Connecticut, and Vermont; the city of New York, and others—all pulled together with lightning speed, in time for filing before the September oral argument.
I was worried about the oral argument in the Second Circuit because we already had two strikes against us. The first was that the three-judge panel that would hear our case included two conservatives: Chief Judge Dennis Jacobs and Judge Chester Straub. We knew Judge Straub was unlikely to vote our way, and I suspected that Chief Judge Jacobs might not, either. Judge Jacobs was a frequent speaker at Federalist Society functions who had never, to my knowledge, decided that a federal statute was unconstitutional outside of the criminal context. Jaren, who had clerked for Chief Judge Jacobs, did believe we would get his vote, although she admitted that this was more of a gut feeling than anything supported by his record.
The second strike was that the oral argument was scheduled for September 27, the day after Yom Kippur.
For those unfamiliar with Jewish holidays, Yom Kippur is the Day of Atonement, considered to be one of the holiest days of the Jewish year. It is a day of repentance, and most Jews—even those who are not particularly religious—spend twenty-four hours fasting and reflecting on their sins of the past year. Thus, from sundown on September 25 to sundown on September 26, I would be observing Yom Kippur, which meant no work, no studying, no eating. This was not, obviously, the best way to prepare for an oral argument, but I am far too religious (and superstitious) to mess around with God.
As a child in Cleveland, I had been told countless times the story of the Los Angeles Dodgers pitcher Sandy Koufax, who sat out the first game of the 1965 World Series because it fell on Yom Kippur. Legions of baseball fans were aghast that one of the best pitchers in the league would choose to miss a World Series start, but for American Jews of my parents’ generation, Koufax’s decision was nothing short of heroic. When I learned that our oral argument would fall on the day after Yom Kippur, the first thing I thought of was Sandy Koufax, and the second was to begin drafting a request for the court to change the date. That request was denied, so instead of spending the day before the oral argument reading, practicing, and otherwise preparing, I did the next best thing: Rachel and I took Edie to Yom Kippur services.
We went to Congregation Beit Simchat Torah, the LGBT synagogue where Rachel and I had first met thirteen years earlier. On High Holy Days, so many people want to come to services there that the congregation meets at the giant Jacob K. Javits Convention Center on Eleventh Avenue. There must have been five thousand people at services that day, and we spent hours there, praying and reflecting. Although she is Jewish, Edie does not know a lot of the religious rituals and customs, so I helped her read the Hebrew prayers and follow along. Then she and I were invited to open the Ark.
In a synagogue, the Ark is a large cabinet where the Torah, the sacred scrolls considered by most religious Jews to be either inspired by or the actual words of God, are kept. At certain points in Jewish services, the Ark is opened for the Torah scrolls to be placed for reading, walked around the congregation, or simply so that the entire congregation can see the scrolls during important prayers. These are moments of great holiness, and being invited to open the Ark is considered to be a great honor. Edie whispered to me, “How do I do this?” I whispered back, “Don’t worry. Just follow me.” The two of us walked up to the Ark and opened the doors together, a moment I would not have traded for any extra time preparing an oral argument.
THE NEXT MORNING, September 27, Edie and I walked with our team into the Thurgood Marshall Courthouse in Lower Manhattan for the oral argument. And as soon as it began, everything I had anticipated about how the argument would go went right out the window.
Paul Clement argued first for BLAG, and I split the Windsor argument with Stuart Delery, one of the highest-ranking gay officials at the DOJ. Unlike Supreme Court arguments, where the attorneys are given little time and the justices pepper them incessantly with questions, each side received a leisurely forty-five minutes. This was the first time I had met Paul Clement in person. I walked over to introduce myself and I remember noticing that all he had in front of him was a single piece of paper in a manila folder, which he presumably intended to use as the outline for his argument. Wow. That was impressive. What surprised me, however, as Clement’s argument unfolded, was that Chief Judge Jacobs seemed eager to focus on whether DOMA should be considered under rational basis or heightened scrutiny.
As I sat listening at the counsels’ table, I began wondering: Was it possible that Chief Judge Jacobs was actually considering whether to rule on heightened scrutiny? No federal court had ever done that in a gay rights case, so this was an exciting—and unexpected—development. We could win our case either way, but we were pretty much guaranteed to win if the panel decided to apply heightened scrutiny to DOMA.
When it was my turn to step to the podium, I was prepared to take any opportunity I could to urge the panel in that direction. But first, I wanted to open by sending a specific message to Chief Judge Jacobs. After all, he was the judge who, in an earlier talk at the Federalist Society, had criticized lawyers who “use public interest litigation to promote their own agendas, social and political.” He obviously did not approve of cases brought solely to advance social causes, so I wanted to make clear that he understood that this was not that type of case.
Good morning. This case presents a single question, is Section 3 of the Defense of Marriage Act, or DOMA, unconstitutional as applied to Edith Windsor, an eighty-three-year-old lesbian widow who had to pay a $363,000 estate tax bill and wants her money back. Judge Jones held that it was.
This case was about Edie Windsor and an unfair tax burden, no more, no less. I went on to argue that “this case is not about the federal right to marry. It is about circumstances where states define marriage, and where DOMA explicitly said we are going to leave that to the states.” In dividing up our oral argument time, we had decided that Stuart, arguing for the United States, would address the heightened scrutiny question, but I did manage to make a few salient points when Judge Christopher Droney asked me which level of heightened scrutiny (strict or intermediate) applied here.
[W]e believe that being gay or lesbian is closer to being an African American than it is to being—I hate to get so personal about this, than being a woman, because there is nothing about being gay or lesbian that has anything to do with an individual’s ability to perform in society and that’s essentially what I believe the courts are looking at . . .
When the oral arguments were over, I felt pretty confident that we would win—and now there was even a sliver of hope that we might win on heightened scrutiny. If that happened, it would likely propel our case directly to the Supreme Court. If, that is, the decision came down quickly enough.
Three weeks later, on Thursday, October 12, I was sitting in my apartment slogging through a tedious task. Each October, Paul, Weiss partners are required to submit a report to all the other partners at the firm describing everything they did in the previous year. Those annual reports are then circulated to each of the other Paul, Weiss partners so that everyone can read them. I’m generally not a procrastinator, but I hate doing this report and always put it off until the last possible minute, so I had stayed home that morning in order to force myself to get it done.
When my phone rang, I stopped what I was doing to pick it up. It was Colleen McMahon, the former Paul, Weiss partner who had led the Jury Project and introduced me to Chief Judge Judith Kaye all those years ago. Colleen was now a federal district court judge and a close friend.
“Robbie, what in the hell are you doing at home?” she asked me.
“I’m writing my report,” I said, confused as to why she was asking.
“The Second Circuit has ruled,” she shouted. “You won.”
What? This did not seem possible. After all our weeks and months of rushing, rushing, rushing, I was caught totally off guard by how quickly the Second Circuit had released its decision. Releasing an opinion just three weeks after oral argument was insanely fast, even for New Yorkers.
To my shock and delight, the court had ruled for Edie on the basis of heightened scrutiny, the first federal circuit court decision ever to explicitly apply that standard to a law that discriminates against gay people. As Jaren would later put it, “No judge, much less no conservative judge, had ever said heightened scrutiny should apply to sexual orientation. And here was this older, white male conservative judge doing it. He just said, ‘Of course this applies.’ And he was right.”
As I raced through Chief Judge Jacobs’s opinion, I was stunned at its eloquence and how persuasively it advanced the arguments for our side. The court’s opinion declared it “easy to conclude that homosexuals have suffered a history of discrimination.” That history was unconnected to gay people’s worth, for while there are “some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society, at least in some respect,” being gay “is not one of them.” The court’s opinion also recognized that “there is nothing amorphous, capricious, or tentative” about being gay, thereby rejecting any suggestion that sexual orientation was a choice. And finally, the court answered the question of whether gay people “have the strength to politically protect themselves from wrongful discrimination.” They did not, the court declared; gay people “are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”
Assessed under this heightened standard, DOMA had no chance of surviving. Even the other side had admitted as much, as Judge Jacobs wrote: “At argument, BLAG’s counsel all but conceded that [the] reasons for enacting DOMA may not withstand” heightened scrutiny. This opinion was a resounding affirmation that laws that treated gay people differently simply because they are gay needed to be scrutinized more carefully by the courts.
Judge Jacobs also demolished the “slutty heterosexuals” argument—the very argument that Judge Robert Smith had employed in 2006, when he wrote the Hernandez opinion denying gay New Yorkers the right to marry. Six years had passed since that decision, enough time for another conservative, Republican-nominated New York judge to deem the argument nonsensical in the context of DOMA:
DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.” Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.
DOMA is therefore not substantially related to the important government interest of encouraging procreation.
In a paragraph foreshadowing one of the major arguments that would be made in the marriage equality cases post-Windsor, Chief Judge Jacobs concluded that Baker v. Nelson, a 1971 case in which two gay men in Minnesota sought to marry, that the Supreme Court had dismissed for want of a substantial federal question, did not foreclose Edie’s case: “Even if Baker might have had resonance for Windsor’s case in 1971, it does not today . . . In the forty years after Baker, there have been manifold changes to the Supreme Court’s equal protection jurisprudence.”
In his concluding point, Jacobs dispatched in a single paragraph the argument that gay people should not have the right to marry out of a respect for either religious beliefs or “tradition.” He even inserted this zinger at the end, referring to St. Paul’s Chapel across the street from the federal courthouse in Manhattan:
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.
I did not know whether to laugh, cry, or shout with joy. The opinion was brilliant, even though Chief Judge Jacobs clearly had rushed to draft it. He had included almost nothing about the facts of the case, which was unusual, and the first printed opinion of the case even had different typefaces for the majority opinion and the dissent. The court had raced to get this decision out, and given the DOMA petitions at the Supreme Court, I believed I knew why.
Now that Windsor had its circuit court decision—and a decision that invoked heightened scrutiny to boot—our case became the front-runner to be heard by the Supreme Court. Gill was the only other case with a circuit court decision, but it was likely that Justice Kagan would have to recuse herself from hearing it. In an instant, all of our hurrying and fretting and nudging had paid off. Now, if the Supreme Court decided to take a DOMA case, it would most likely be Windsor.
One week after the decision, Sri Srinivasan called me to discuss the latest DOMA case “rankings.” We had been planning to file a new brief with the solicitor general’s office, but Sri told me that “without being definitive, given our policy, I don’t think you need to be filing anything. We are planning to file a supplemental brief tomorrow.”
“Great,” I said. “And what will our new ranking be?”
“I believe you will be perfectly pleased,” Sri replied. He told me that their prior reasons for not preferring Windsor had been “taken care of” by the Second Circuit decision, and we then went on to discuss a few points about the opinion, but the one thing that stuck in my mind after I hung up the phone was that phrase: “perfectly pleased.”
On October 26, the solicitor general’s office filed its brief recommending that the Supreme Court take Windsor. Our whole team was jubilant, and in the midst of all the high-fiving at the office, I made sure to call Pam Karlan at Stanford. “Did you see the brief?” I said.
“I’m perfectly pleased!” she said.
Now we had just one more step to get to the Supreme Court: the justices had to actually agree to hear our case.
THE SUPREME COURT is a secretive and occasionally mysterious institution. It is difficult, if not impossible, to know what goes on behind closed doors, so at that point all we could do was hope that when the justices met to decide which DOMA case to take, they would choose Edie’s.
These meetings, called conferences, typically happen a few times a month during the Supreme Court’s term, which runs from October to June. The justices meet in a private room at the Court and discuss the cases up for consideration, and if four justices vote to hear one case, it will be heard. The justices can also decide to combine more than one case on the same issue, lumping them together and letting the attorneys sort out among themselves who should make the oral arguments.
We had been advised that the justices would be considering the four DOMA cases at their November 20 conference. So that afternoon, a group of us—including Edie, of course—huddled together in a windowless Paul, Weiss conference room equipped with a big screen. Some people had brought in their laptops, which were slightly faster than the big-screen Internet setup, and everyone kept refreshing the SCOTUSblog home page to get the announcement. It felt a little absurd to be getting such important news from the Internet, but we knew that SCOTUSblog would have the information first. So there we sat, all of us hitting refresh, refresh, refresh or staring at the big conference-room screen until our eyes were bugging out of our heads.
And then the announcement! Our excitement was snuffed out in an instant as we read that the justices had declined to make any decision, punting the DOMA question to their next conference. It is not uncommon for the justices to take several conferences to decide whether to hear a case, but that knowledge did not make the waiting any easier. We all shuffled back to our offices, deflated.
The next conference was scheduled for Friday, November 30, and just as before, we all gathered in the windowless conference room. Refresh, refresh, refresh . . . and . . . here we go! Once again, no decision.
At this point, Edie was getting pretty frustrated. What was taking so long? We knew that the Supreme Court was inclined to take a DOMA case, partly because Justice Ruth Bader Ginsburg had said as much in a September appearance at the University of Colorado at Boulder. In response to a student’s question about equal protection for gay men and lesbians, she replied that she could not answer that question, as “I think it’s most likely that we will have that issue before the Court toward the end of the current term.” Because it is pretty rare for justices to give such hints, her statement was seen as confirmation that the court was planning to take a DOMA case.
It was possible that the justices needed more time to consider procedural questions. Would they hear the DOMA case based on the merits only? Or would they decide to consider the jurisdictional issue—meaning whether the Court even had jurisdiction in this case, given that the DOJ had declined to defend and BLAG had stepped in? The justices were not simply deciding whether they would take a case and which one it would be; they also had to decide which legal questions they wanted to answer.
And of course the justices were also discussing another high-profile gay rights case at the same time. Ted Olson and David Boies had won their Prop 8 case, Hollingsworth v. Perry, in the Ninth Circuit on February 7, 2012, so it was also up for consideration. Although both cases were about marriage equality, the issues in Perry were very different from ours so we knew that the justices would not combine the cases. But would they choose to hear Perry at all? And if so, would they schedule our cases to be heard around the same time? All these questions needed answers, and the justices appeared to be taking their time in answering them.
The next announcement was scheduled for Friday, December 7, and once again we all gathered in a conference room at Paul, Weiss. Our whole team was present, as well as James Esseks and Edie. Surely we would get a decision. If not, I thought that Edie and I might both collapse from stress and anticipation.
As James describes it, “We were just sitting there and waiting and waiting and waiting, and we’re all frustrated and antsy and we can’t keep still.” Refresh, refresh, refresh . . . And then someone said the magic word: “Granted.” Jubilation broke out in the conference room. The justices had chosen to hear not only Perry but Windsor. We were heading to the Supreme Court!
Someone brought in a bottle of champagne, and we popped the cork and poured it into water glasses. Since Edie is allergic to champagne, someone went out to find vodka for her. In the meantime, she had a sip of juice while we toasted, ecstatic that three and a half years after she had experienced the crushing indignity of having her marital relationship denied, her case would be heard by the highest court in the land.
We had a strategy prepared in anticipation of this moment and had to start e-mailing and making calls to put it into motion. But before that happened, there were two important people I needed to speak to first.
The first call I made was to Mary Bonauto. Mary had worked harder than anyone to defeat DOMA, and the truth is, if her Gill case had not had the Justice Kagan recusal problem, it most likely would have been the DOMA case going to the Supreme Court. Mary had been instrumental in the entire campaign to topple DOMA, and her help would be critical at this stage as well. “Mary,” I said, “would you help us run the amicus effort?” I knew that Mary would have the insight and connections to help us compile an outstanding selection of amicus briefs, and I wanted her to be part of our team. Fortunately, she said that she would be happy to do it.
The second call I made was to Pam Karlan. Pam had already been a tremendous help in our effort to get cert. Now, with Windsor heading to the Supreme Court, we were going to need her insights, intelligence, and sense of humor more than ever. I dialed her number, and when she picked up, I yelled, “Get ready to get your hair blown out! We’re going to Washington!”
That evening, Rachel and I hosted a pizza party at our apartment to celebrate. Our whole Paul, Weiss team came—Julie, Josh, Jaren, Andrew, and Alexia; James Esseks was there, and Emily Giske, hero of the New York marriage equality legislation, along with her wife, Annie Washburn. Edie was there, too, sipping a vodka on the rocks, her blond bob as perfect as ever. Brendan Fay, the activist who had helped Edie and Thea get married back in 2007, was there, too, as was Eddie DeBonis, Brendan’s friend who had originally put Edie and me in touch in the first place.
In fact, this was the first time that Edie, Brendan, Eddie, and I had ever been in a room together, so we started talking about how our paths had all come to cross in this fantastically auspicious way. We found out in the next moment that there had been a little less fate in our being brought together than Edie and I had originally thought when Eddie said, “I have a confession to make.” At the time Eddie had asked me to consider taking Edie’s case, he told Edie he had contacted several lawyers on her behalf. As we all stood together in the middle of this celebration, he said, “Now I can tell the truth. Robbie is the only person I called.”
We all clinked glasses—one of many times that night. It was one of those rare, fleeting moments in life when you are present enough to know that you are part of something momentous, something far larger than yourself. I was still flying high a few hours later when I checked my BlackBerry to find an e-mail from Marty London, the Paul, Weiss partner who, all those years ago, had entrusted me with that big Tokyo case when I was an eager young associate. Marty had become my mentor and great friend. He had come to cheer for me during the Second Circuit argument. Marty’s e-mail made me laugh, even though it contained no text and only this subject line: “Ok, babe, on to the Show!”