The “Guide for Counsel,” published by the Supreme Court the same year that our case was decided, explains as follows: “Opinions may be handed down at any time after the argument. The only information the Clerk or his staff can give you in this regard is that cases argued during the Term are usually decided before the end of June.” Because Windsor had been argued at the end of March, we knew that the justices would most likely hand down their decision sometime in June. In other words, we were going to have to wait about three months (or twelve weeks, or eighty-four days, or 2,016 hours) before learning whether all of our work had paid off.
I tried very hard during that waiting period not to think about the fact that, at any given moment, the justices might be deciding Edie’s case or even writing their opinions. But succeeding in not thinking about things that worry me is not one of my talents. Rachel and I decided to go on vacation in April in what proved to be a futile attempt to take my mind off the case. Both Edie and I were stressed out and edgy, desperate for the decision to be handed down.
The justices of the Supreme Court don’t give advance notice of the day on which they will release any particular decision; they simply announce that on certain dates they will hand down whichever opinions happen to be ready. So once again, as we had done back when we were waiting to hear whether the Court would grant certiorari, we gathered with all of our Internet browsers on SCOTUSblog.com and hit refresh, refresh, refresh.
Instead of meeting in a conference room at Paul, Weiss, however, this time we decided to gather at my apartment, since it was a lot closer to Edie’s apartment than our offices. We hoped that it would be a little easier on her since she wouldn’t have to come to Midtown. So Rachel, Edie, and the Paul, Weiss team crowded around my dining room table on June 13 to learn which decisions the Supreme Court had released that day. We stared at our open laptops, hitting refresh, refresh, refresh on the SCOTUSblog website. The Court issued three decisions that day, but none of them were in the Windsor case.
The same thing happened on at least two more occasions (June 17 and 24). Each time, we were disappointed. Ariel Levy, who was then working on a profile of Edie for The New Yorker, was there with us in my apartment. In her piece, “The Perfect Wife,” Levy accurately captures the mood during our vigil: “Kaplan was frustrated, too. She rubbed her forehead. ‘This is worse than waiting for a jury.’ ” I put my head down on my forearms, according to Levy, and “moaned I’ve got to take up smoking or something.”
Finally, there was only one day left. On Wednesday, June 26, the Court would issue its remaining decisions for the term, which we knew would include not only our case, but the Perry decision as well.
This was it—the culmination of three and a half years’ work, not to mention the aspirations of countless Americans. As we all sat there sweating in the New York City summer heat, we were looking for three key signals that we believed would tell us whether we had won or lost the case. The first was which justice had written the opinion. Given his historic legacy of writing the two prior major gay rights decisions Romer and Lawrence, we believed that if Justice Kennedy wrote the majority opinion for Windsor, it would bode well for our prospects.
Second, we were looking at the order in which the opinions would be released. Knowledgeable SCOTUS watchers had already concluded, based on the number of opinions that each justice had already authored during the term, that for Windsor and Perry, it was likely that Chief Justice Roberts would write one of the two opinions and that Justice Kennedy would write the other. If that happened, SCOTUS protocol dictated that Justice Kennedy’s opinion would be read in the courtroom first. Accordingly, if the Windsor decision was being handed down before the Perry decision, that would be a very good sign as well.
And the third and final thing we were looking for—the one that would truly guarantee either a victory or a defeat—was which justice or justices had written dissents. We were pretty confident that if Justice Scalia had written a dissent in our case, we probably wouldn’t need to read any further. We would know for certain that we had won.
Refresh, refresh, refresh. Finally, the news flashed up on our screens: Windsor was the first decision of the day; majority opinion by Justice Kennedy; dissent by Justice Scalia. Even before reading a single word of the decision, we knew we had won—Section 3 of DOMA had been found unconstitutional.
At that point, pandemonium broke out in my apartment. Everyone was crying, shouting, jumping with joy, or all of the above. As I hugged Rachel, she said through her streaming tears, “Everything will be different for Jacob now.”
While I was overwhelmed, I somehow managed to keep my tears in check and spent my time screaming and then rushing to my small home office where it was quiet to read the opinion and dissents. But I do remember that I laughed as I looked over at Ariel Levy, who was crying harder than almost anyone else. So much for objective journalism—though to be honest, I’m not sure any sentient human could have been completely objective in our apartment that day.
IN UNITED STATES V. WINDSOR, the Supreme Court voted 5–4 to strike down DOMA, with Justice Kennedy writing the majority opinion and Chief Justice Roberts, Justice Scalia, and Justice Alito each writing their own separate dissents. In Hollingsworth v. Perry, the Prop 8 case, the justices voted 5–4 not to rule on merits, concluding that the defenders of Prop 8 lacked standing to appeal. Essentially, in Perry, the justices decided not to decide, which meant that the district court’s decision would stand and marriages of gay couples would resume in California.
In those three months (which felt like three years) between the Supreme Court oral argument and when Windsor was decided, I was guardedly optimistic that we would win Edie’s case. I was pretty worried, however, about the grounds on which the Court would ultimately rule. I wanted Windsor not only to strike down Section 3 of DOMA but to do so using legal reasoning that would help to win future cases about the legal equality of gay people. Thus, it was very important that Windsor not be decided based on Tenth Amendment or federalism grounds that arguably applied to DOMA but would not apply to the many other state laws that discriminate against LGBT people.
While the Court agreed with us about DOMA’s “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage,” the Windsor decision was not grounded in federalism. Justice Kennedy made this point explicitly three separate times in his opinion when he stated, for example, that “state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” Indeed, in his dissent, Justice Scalia noted that the Windsor majority “formally disclaimed reliance upon principles of federalism.”
What the Windsor opinion is about is human dignity and equality. Justice Kennedy wrote that “interference with the equal dignity of same-sex marriages was more than an incidental effect of DOMA. It was its essence.” He observed that “DOMA writes inequality into the entire United States Code,” commenting that DOMA “touches many aspects of married and family life, from the mundane to the profound.” And, noting that the 1996 House Report expresses moral disapproval of homosexuality, Justice Kennedy suggested that that alone calls DOMA’s constitutionality into question. According to the Supreme Court, DOMA was “invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
Justice Kennedy used the word dignity ten times in his twenty-six-page opinion for the Court in Windsor. According to the Oxford English Dictionary, the word dignity means “the state or quality of being worthy of honor or respect.” Sometimes it’s the simplest and most obvious things that say the most. The “state or quality of being worthy of honor or respect” is exactly what our case was all about.
Although Justice Kennedy did not directly address the debate about gay parents in his opinion, he did write that DOMA “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
It is almost impossible to overemphasize the significance of this statement. For decades, gay people and their relationships have been vilified as threats to children. In fact, Edie, who adores children, had explained to me at one point that one of the reasons why she and Thea never adopted kids was in large part because of these negative attitudes. As recently as the Proposition 8 campaign in California in 2008, gay people were maligned as perverts and pedophiles. At the very least, their suitability as optimal parents has been repeatedly questioned. Having the Supreme Court not even acknowledge these negative views about gay people as parents in Windsor was stunning. Instead, what mattered now was the humiliation that the kids of gay parents would feel if their parents couldn’t be married.
In writing our brief for the Supreme Court, I had been adamant that we never use the terms “same-sex,” or “opposite-sex,” or “homosexual,” or “heterosexual.” I believe that people who are comfortable with gay people don’t refer to them using these terms. If, like so many Americans today, you have a neighbor, friend, colleague, or family member who is gay, you most likely don’t refer to that person as “a homosexual.” You certainly don’t refer to their husband or wife as a “same-sex spouse.”
While Justice Kennedy’s opinion did, in fact, use the phrase “same-sex,” I was delighted to see that it did not include any language from the Court’s prior opinions in Lawrence and Romer, which assumed that gay people were somehow different from straight people. Indeed, even in Justice Scalia’s dissent in Windsor, rather than attacking the gay Kulturkampf, as he did in Romer, or the “homosexual agenda,” as he did in Lawrence, Justice Scalia reserved his ire for the other justices instead. Referring to the majority opinion as “legalistic argle-bargle,” he asserted, “There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are . . . Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe.”
Justice Scalia went on to predict, as he had in 2003, that the inevitable result of the Windsor decision would be nationwide marriage equality in all fifty states:
It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here . . . I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with. . . .
How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
AFTER LEARNING THAT we had won, Edie immediately declared that she wanted to go to Stonewall, where we knew crowds of people would be gathering to celebrate our victory. But before we could think about going anywhere, the phone rang. I had a pretty good idea of who would be calling since the White House LGBT liaison, Gautam Raghavan, had asked me where we would be when the decision came down and how to reach us in case we won. “Edie,” I said, “it’s for you,” handing her the telephone.
“Hello?” Edie shouted into the receiver, squinting as she tried to hear; there was obviously a lot of commotion in my apartment. “Who am I talking to? Oh, Barack Obama?” She then went on, as if getting a call from the president of the United States that Wednesday morning was the most natural thing in the world. “I wanted to thank you. I think your coming out for us made such a difference throughout the country.” A moment later, she looked upset and confused. “Oh God. I think I just hung up on the president,” she said. Fortunately, the telecommunications issue was not our fault and President Obama was soon able to call back and finish the conversation, even though he was on Air Force One on his way to Africa.
Before heading to Stonewall, we had a couple of stops to make. Edie, Rachel, Jaren, Julie, Alexia, and I climbed into an SUV and drove two blocks to the LGBT Community Center on West 13th Street, the very same place where we had first introduced Edie and her lawsuit three years before.
On that day, back in the fall of 2010, we had held our press conference in a small room with just a few rows of chairs, many of which were empty. Now the entire building was literally bursting at the seams. There were crowds of people crammed into every nook and cranny, cheering, shouting, reaching out to touch Edie, and snapping photos of us as we walked by.
I again introduced Edie to the crowd: “DOMA was the last law on the books that mandated discrimination against gay people by the federal government simply because they are gay.” Echoing Justice Ginsburg’s statement from oral argument, I noted that “the days of skim milk marriages for gay people are now over.”
Edie had asked us to help prepare three different speeches for her that day, knowing that she was going to have to respond to whatever decision was handed down. One was called “Total Win,” one was entitled “As Applied” (in case the Supreme Court had ruled narrowly in Edie’s favor, but did not extend its ruling to cover other married gay couples), and the third was labeled “Loss.” As Edie pulled the “Total Win” speech out of her pocket and stood in the front of the sweltering room facing a wall of cameras and reporters, she observed, “If I had to survive Thea,” she said, “what a glorious way to do it.”
Edie spoke for several minutes, and then reporters started peppering her with questions. Steven Thrasher of the Daily Beast had a great one: “Ms. Windsor, you can probably answer this better than anyone in America right now. What is love?”
“Love is a million things,” Edie replied. “What was love with me and Thea? It started with tremendous respect for each other, and with two mantras. Mine was ‘Don’t postpone joy,’ and Thea’s was ‘Keep it hot!’ ” The room erupted into laughter. Now that we had won, our three rules for the case had expired and Edie could say whatever she liked. And she certainly wasted no time in doing so.
Moving to a more serious note, and obviously suffused with memories of Thea, Edie then quoted the following lines from W. H. Auden’s poem “The Prophets,” which she knew by heart:
For now I have the answer from the face
That never will go back into a book
But asks for all my life, and is the Place
Where all I touch is moved to an embrace,
And there is no such thing as a vain look.
Looking out at so many faces, I couldn’t help compare the euphoria in that room with the fairly muted response to our original press conference in 2010. It was, as James later put it, “like night and day.”
We left the LGBT Center press conference and made a pit stop at Paul, Weiss to regroup. As we drove uptown, dozens of people ran up to our car to shake our hands and take photos. As Edie was walking down the hallway at the firm, she ran into Brad Karp, chair of Paul, Weiss. He immediately got down on his knees to bow before her, which delighted Edie to no end. It was a perfect symbol of the respect that Paul, Weiss had felt and accorded Edie from the very beginning.
Edie had one more place to go before Stonewall. Feeling confident in our chances, Hilary Rosen had arranged for Edie to tape an interview with Diane Sawyer for ABC Nightly News, the two women with probably the best blond bobs in all of New York City. Calling Edie an “unlikely gladiator,” Diane Sawyer asked what the Supreme Court’s decision meant for her personally. Edie responded by saying that “my country is now giving dignity to this beautiful person I was with.” When asked what she would say to Thea if she were still alive, Edie responded that she would say: “Honey, it’s done.”
Our next stop was Stonewall. Hundreds of people had gathered in front of the bar in the West Village, the place where the modern era of gay-rights activism began one sweltering night in June 1969 when a group of young gay men and drag queens decided to fight back against the police who had come there to arrest them.
Earlier that evening in 1969, Edie and Thea had just returned from a trip to Italy. When Edie went out later to buy some milk, she remembered the odd silence in the streets that night. Learning about the riots that had just occurred ultimately changed the way that Edie felt about the “queens,” many of whom hung out at Stonewall and who dressed flamboyantly in drag. Before Stonewall, like many other middle-class gay people, Edie had been more than a little ashamed and embarrassed by them. As she explained to Chris Geidner of BuzzFeed, “Until then, people who wanted to march and protest did it very carefully in proper suits and ties, and the women dressed in dresses. You were asked to leave if you hadn’t come dressed properly. But, [the queens] existed. And they cared.” But after Stonewall, Edie justifiably saw them as heroes, and Stonewall became a special place not only for Edie but for thousands of LGBT people across the country.
Alexia tells a great story about what happened when we were driving with Edie to Stonewall that day:
When Edie and I were pulling up to Stonewall, everyone was very worried about security. Everyone was really tense and we were in this SUV with tinted windows, trying to drive close enough that we could get Edie to the stage that had been set up by the LGBT community groups without her getting run over by the crowd, and Edie kept rolling down the window to wave at people and touch people’s hands. There was just so much love for her and she was so excited. I was getting increasingly hysterical about safety and it basically got to this point where she would roll down the window, I’d roll it up, she’d roll it down, I’d roll it up. It perfectly captures how gleeful we all were.
When Edie stepped out of the car, the crowd, which had packed the streets and sidewalks, went crazy. She waved her hands and blew kisses, beaming with joy as people clapped, cheered, and screamed her name. This was our hometown, after all, so there were dozens of old friends and elected officials at the rally that day who were gay or lesbian, including many (Emily Giske, Christine Quinn, Brad Hoylman, Danny O’Donnell, and Amy Rutkin) who had worked on LGBT equality for so long. But I was most touched by the fact that my friend and rabbi, Jan Uhrbach, had driven three hours into the city to introduce me. When I saw Jan there at Stonewall, I finally burst into tears myself.
When speaking that day at Stonewall, I began by noting that “the meaning of the decision by the United States Supreme Court is truly overwhelming, even for me, as the lawyer who argued the case, standing here, where so many others for so many years marched and protested and fought to get us to this very moment.” Keeping with our motto that “it’s all about Edie,” I explained: “It is important to recognize that our victory against DOMA never would have happened without the tenacity of a five-foot-tall, 100-pound lady by the name of Edie Windsor. The events of this week remind us why it is that we have a Constitution—to bind us together as citizens of one nation each of whom is entitled to equal protection of the law. There is no person and no case that better demonstrates that core concept of equal protection than Edith S. Windsor v. the United States of America.”
In a perfect serendipity of the calendar, the culmination of the annual gay pride celebration in New York City was taking place that weekend. On Friday night, Edie, Rachel, and I attended a packed Shabbat service at Congregation Beit Simchat Torah, the same synagogue where Rachel and I had first met fourteen years earlier. I delivered a drash, or sermon, on that week’s Torah portion (Parshat Pinchas; Numbers 25–30), which told the story of five brave Jewish sisters (the daughters of Zelophehad) who had challenged Moses and thereby changed Jewish law so that they could receive their father’s inheritance. To a congregation of LGBT friends and allies filled with an almost unbelievable sense of joy, I explained my understanding of the importance of change within Judaism:
Perhaps the dominant view in our popular culture today is that religion, or belief in God, is inimical to the concept of change. The very idea that I, as a woman, not to mention a lesbian, am standing on this bimah talking to you tonight would be utterly inconceivable to many.
But what I hope to be able to demonstrate to you is that this is not the only way to be religious or to believe in God. The notion that Jewish law is fixed in stone, unbending and unyielding and not subject to change is simply not consistent with the story of Zelophehad’s daughters. After all, it is God himself who changes his own prior rule when God sees the inherent justice in the daughters’ argument.
I concluded my drash with the words of the great rabbi Abraham Joshua Heschel, who had escaped the Holocaust and marched with Martin Luther King at Selma in March 1965: “All it takes is one person . . . and another . . . and another . . . and another . . . to start a movement.” (When Rabbi Heschel returned to New York from Selma, someone asked him what it had been like, and he characteristically responded with poetry: “I felt my legs were praying.”)
The next night, we celebrated our victory by throwing a huge dance party in honor of Edie and Thea’s love of dancing. We invited dozens of people—friends, attorneys, anyone who had supported Edie’s case in one way or another. It was like the combined gay bat mitzvah/prom that none of us had ever had, with lots of food and drinks, a great DJ playing classic disco hits, and everyone dancing. The crowd even lifted James Esseks and me up in chairs amid the dancing throngs.
The next day, Sunday, June 30, the celebration continued with the Gay Pride Parade in Manhattan. Edie was the Grand Marshal. Twenty-two years earlier, on June 30, 1991, my mother had seen the New York City Pride Parade while coming to visit me at my apartment. That day, I had revealed to her my secret that I was a lesbian, and her response had not been ideal. But my mother and I had come a very long way since then. And now, on the anniversary of that incredibly difficult moment, I found myself sitting with Edie, my wife, Rachel, and my son, Jacob, in an open convertible bedecked with rainbow flags, waving to cheering, screaming, ecstatic crowds. It felt like the final, glorious moment of my own coming-out story.
JUSTICE SCALIA’S FORECAST in his Windsor dissent turned out to be remarkably prescient. In the two years following Windsor, dozens of courts released decisions allowing gay couples to marry in states as different as Utah, Oklahoma, Texas, and Florida, all citing Windsor. The number of states permitting marriage equality soared from thirteen at the time of the decision to thirty-seven. By May 2015, a Gallup poll showed that a record high, or 60 percent, of Americans supported recognizing marriages between gay couples. When Gallup had first asked this question in 1996, 68 percent of Americans had been opposed to recognizing marriages between persons of the same sex. In fact, the impact of Windsor was so great that Harvard Law professor Laurence Tribe told a reporter, “I can’t think of any Supreme Court decision in history that has ever created so rapid and broad a lower-court groundswell in a single direction as Windsor.”
As amazing as all this was, however, those of us fighting for LGBT equality still had, to paraphrase Jimmy Cliff, a few more rivers to cross. We still had to secure the right to gay marriage in all fifty states. Lawyers began filing suits in courts across the country. When I got a call in October 2014 from some lesbians I had met in Asheville, North Carolina (Diane Walton, Meghann Burke, and Jasmine Beach-Ferrara, who run the Campaign for Southern Equality), about filing a case on behalf of gay couples in Mississippi, I jumped at the chance. (And yes, for those of you who don’t know it yet, there really is such a thing as the “lesbian mafia.”)
Rebecca (Becky) Bickett and Andrea Sanders live on the coast in southern Mississippi and have been a couple since meeting in the aftermath of Hurricane Katrina in 2005. They are the parents of twin one-year-old boys. Carla Webb and Jocelyn (Joce) Pritchett of Jackson, Mississippi, were legally married in Maine in 2013, though the state of Mississippi did not recognize their marriage. They also have two children, a boy and a girl. In November 2014, we filed suit in the U.S. District Court for the Southern District of Mississippi on behalf of these two couples.
As we had done with Edie, we pressed for an aggressive schedule in the Mississippi case. I wanted to get our case to the appellate level at the Fifth Circuit Court of Appeals as soon as possible since I knew that two other cases (one from Texas and one from Louisiana) had been decided at the district court and were already on appeal to that court. We drafted our initial motion papers seeking a preliminary injunction in a New York minute, filing them with the court within a week of taking the case.
Less than a year and a half had passed since the Windsor decision, but the differences in terms of legal precedent were profound. For one thing, nearly every single case we cited was a post-Windsor decision that had explicitly relied on Windsor. Despite the rush, I honestly don’t think I ever had so much fun drafting a brief in my entire life. For a law geek like myself, it was like recording our own post-Windsor greatest hits album. We opened the brief with a description of what had happened since June 2013:
Since Windsor, more than forty federal district courts and four circuit courts have held that the U.S. Constitution requires that gay people be allowed to marry; only one federal circuit court and two district courts have held to the contrary. This remarkable degree of consensus among the courts is no coincidence—it is mandated by the logic and language of Windsor, which enshrine and repeat the unique protections our Constitution affords minority groups from discriminatory treatment.
The Mississippi case was assigned to Judge Carlton Reeves. Appointed by President Obama in 2010, Judge Reeves was only the second African American federal judge in Mississippi. His father was in the military, and the family moved often before Judge Reeves was born. In 1968, the family moved back to their original home in Yazoo City, Mississippi, where Judge Reeves attended public school.
Although I very much hoped that Judge Reeves would see discrimination against gay people as a civil rights issue, I continued to be wary of trying to make any direct comparisons between the struggle of African Americans and the struggle of LGBT Americans. There were too many significant differences, including the obvious facts that gay Americans had never been denied the right to vote or had to endure Jim Crow. As I explained to Judge Reeves at oral argument: “Thurgood Marshall when he litigated these cases as a young man was literally worried every day he was going to get killed. I’m not aware of any attorney litigating any LGBT civil rights case who has faced anything like that.”
But as it turned out, I need not have worried since Judge Reeves was happy to make the point for me. At the oral argument on November 12, 2014, he brought up the landmark Supreme Court decision of Brown v. the Board of Education:
What’s your response to Brown v. Board of Education and the Supreme Court putting a proviso in that . . . [the] states . . . would [have to] implement Brown with “all deliberate speed?”
(The Supreme Court, concerned about the reaction in the states, had used this phrase “all deliberate speed” to send a message to the states that they did not have to rush toward integration.)
At the time of Judge Reeves’ query, I actually misunderstood where he was going. I thought he was concerned about what would happen in Mississippi if a federal judge ordered the state to allow gay couples to marry. For that reason, I responded:
That was clearly done by the Supreme Court at the time out of a fear, whether legitimate or not, probably legitimate, that there would be so much social unrest. . . .
In this context, there’s no issue. Gay people have been married in Massachusetts now for ten years. Now, I concede that the Commonwealth of Massachusetts is different from the state of Mississippi. But there’s been no rioting on the streets of Massachusetts. There’s been no social unrest in the state of Massachusetts. Indeed, as we cited in our reply brief, rates of divorce in Massachusetts have gone down over the last ten years.
It soon became clear, however, exactly what Judge Reeves meant by his reference to “all deliberate speed,” and it was the opposite of what I had been thinking. In a moving description of his own experiences growing up as an African American public school kid in the Mississippi Delta, Judge Reeves came back to the issue later in the oral argument when Justin Matheny, one of the attorneys representing the state of Mississippi, was at the podium:
[I]t was 1954 that Brown was enacted and in Mississippi it was 1970 before my first-grade class was integrated . . .
So doesn’t the court have some responsibility to maybe not wait and see? Because we may be here in 2031. We may be here in 2131. . . . [W]hat guarantee is there that the political process would work its way through in what I might consider or what the courts might consider to be a timely fashion?
This may have been the most powerful question I have ever heard from a judge at an oral argument. Listening to Judge Reeves, I couldn’t help but think how extraordinary it was to be sitting there in that courtroom in Mississippi, where so many civil rights battles had been fought, listening to an African American federal judge describe his own experience with the consequences of the Supreme Court’s action (or inaction). But as Judge Reeves later explained in his decision (quoting William Faulkner), “The past is never dead. It’s not even past. That is as true here as anywhere else.”
As a practical matter, none of the arguments we were making or that were being urged by the state of Mississippi were different from the arguments that James Esseks and I had made in the New York marriage case a decade before. I made the same argument about my clients that I had in Albany in 2006:
My clients Becky Bickett and Andrea Sanders, Joce Pritchett and Carla Webb are all here today with their families. All they want is to be treated like everyone else. What they want for themselves and their children is a right that most people take for granted. By treating straight families one way and gay families another way as if they were inferior or second class, the State of Mississippi discriminates against gay people and their families; and the consequences of that discrimination are profound.
For example, if, God forbid, one of my clients were to get critically sick tomorrow, it is not at all clear that her spouse or partner would be able to visit her in the hospital or to make important medical decisions about her treatment if she is unable to do so. When it comes time for my clients to pay their taxes, they have to go to the trouble and expense of preparing two sets of returns. And they cannot get, of course, the tax deductions that are available to straight married couples in Mississippi.
And perhaps most obviously and most importantly, Becky and Andrea’s 15-month-old twin boys and Joce and Carla’s children, a six-year-old girl and a two-year-old boy, do not have two legal parents who are married under the laws of the state in which they live. That’s important because of the many concrete rights and benefits that children enjoy when their parents are married.
But it’s also important in another sense, namely, in the sense that the dignity and self-worth of these kids is demeaned or, in the words of Justice Kennedy, humiliated daily by having to grow up in a state that tells them through its laws that their family is inferior. To use a fancy legal phrase from New York City, that’s just plain wrong.
When Judge Reeves released his decision, it became clear that what had truly changed in the intervening years since our 2006 loss was not the arguments of counsel, or even the way that we articulated them, but the ability of judges to hear them.
In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions:
Can gay and lesbian citizens love?
Can gay and lesbian citizens have long-lasting and committed relationships?
Can gay and lesbian citizens love and care for children?
Can gay and lesbian citizens provide what is best for their children?
Can gay and lesbian citizens help make their children good and productive citizens?
Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity?
Without the right to marry, are gay and lesbian citizens subjected to state-sanctioned prejudice?
Answering “yes” to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage.
Judge Reeves handed down his seventy-two-page opinion (more than two times longer than our brief) late in the afternoon on the Tuesday before Thanksgiving. In it, he powerfully surveys the history of discrimination against African Americans in Mississippi, the history of such discrimination against LGBT Americans, and the distinctive nature of homophobia. Judge Reeves discusses at some length the story of longtime civil rights organizer Bayard Rustin, who helped guide the Montgomery bus boycott and who was specifically targeted for being gay. As Judge Reeves explains:
The most interesting part of Rustin’s story, though—and the reason why he merits more discussion here—is that he was subjected to anti-gay discrimination by both white and black people, majority and minority alike. . . . Rustin’s story speaks to the long tradition of Americans from all walks of life uniting to discriminate against homosexuals. It did not matter if one was liberal or conservative, segregationist or civil rights leader, Democrat or Republican; homosexuals were “the other.”
Judge Reeves’s decision was released as we were in our car fighting our way through the pre-Thanksgiving traffic on I-95 to get to Rachel’s mother’s house in Rhode Island for the holiday. Because I was driving, Rachel read the entire opinion to me from her iPhone. Not only did we fully comply with the applicable antitexting laws, but it was probably the best four-hour drive of my life.
AS EXPECTED, THE state of Mississippi immediately appealed Judge Reeves’s decision, and our case moved up to the Fifth Circuit, where Mississippi obtained a stay. Two other gay-marriage cases, one from Texas and one from Louisiana, would be heard by the Fifth Circuit on the same day as ours, before a panel of three judges: Judge Jerry Smith, a conservative whose vote we knew we most likely couldn’t get; Judge Patrick Higginbotham, a Reagan appointee who had been on the bench for more than three decades, and Judge James Graves, who, like Judge Reeves, was also an Obama-appointed African American judge from Mississippi. Oral arguments were scheduled for Friday, January 9, at the federal courthouse in New Orleans.
Josh Kaye and I flew to Houston in advance of the argument to meet with attorneys in the Texas case, De Leon v. Perry, and compare notes. Not wanting to miss an opportunity to go on an eating tour of the Deep South, we drove from Houston to New Orleans in a rental car, stopping along the way to sample the local cuisine of crab étouffée and fried catfish, not to mention the almost superhuman number of oysters consumed by Josh. As we drove, Josh and I used the time to prepare for what I knew would probably be the last marriage equality argument of my career by “mooting” the case. Josh would ask me the hardest questions he could think of and we worked to practice my answers, as Louisiana Cajun country whizzed by.
The Fifth Circuit would hear arguments in each of the three cases separately, with Louisiana going first, followed by Mississippi, and then Texas. As I listened to the three judges asking questions during the Louisiana oral argument, it seemed pretty clear to me that, as expected, Judge Smith was not likely to vote our way. But the other two judges seemed far more open to the marriage equality arguments that the Lambda attorney, Camilla Taylor, was making.
When it was my turn to argue, I felt none of the jitters I had experienced when I began my argument at the Supreme Court. This was not my first time arguing before a circuit court and I certainly knew this area of the law. While I still didn’t want to make any direct analogies to the civil rights movement, I kept thinking about the crucial role that had been played by judges in this very courthouse. I really couldn’t help myself. So I confidently walked up to the podium and said, “Good morning, Your Honors. May it please the court. I am delighted to be down here in New Orleans. I apologize for bringing our cold weather with us. And it’s an honor to be arguing this case in the John Minor Wisdom courthouse.”
I had chosen these words carefully. In 1994, the Fifth Circuit courthouse was renamed to honor John Minor Wisdom, a judge who served on the court from 1957 until his death in 1999. Judge Wisdom was one of the “Fifth Circuit Four,” renowned for his landmark decisions implementing desegregation in the wake of Brown v. Board of Education. During the 1960s, despite sometimes violent opposition, Judge Wisdom courageously issued opinions ordering integration at the University of Mississippi, eliminating racial discrimination in jury selection, and striking down barriers to voter registration in Louisiana. As the New York Times reported on his death at age ninety-four in 1999, Judge Wisdom was one of a “handful of remarkable men who prevailed by meeting the demands of the times with an innovative and creative judicial response that restructured an unjust social order and helped shape the nation in a second reconstruction and left a permanent imprint on American history.”
By opening with a reference to Judge Wisdom, I was obviously drawing a link between the historic struggle of civil rights for African Americans and the current struggle for the rights of gay people. And I’m pretty sure that the judges understood exactly what I meant.
Much of the argument at the Fifth Circuit focused on the 1972 case of Baker v. Nelson, in which the Minnesota Supreme Court had ruled that a law restricting marriage to opposite-sex couples was constitutional, and the Supreme Court had dismissed the appeal as not even raising a substantial issue. When Judge Smith brought up that decision, I responded with the following:
ME: The world was a very different place in 1972 when Baker was decided. . . . There has certainly been a sea change not only in the law, but in the way gay people live in our society. In 1972, . . . [i]f they wanted to keep a job or be civil to their neighbors, most gay people lived in the closet. We have a very different world today, where there are gay people, like my clients, living openly with their children. . . .
JUDGE SMITH: Why do you suppose, though, that in light of the specific reasoning and holding in Baker, the Supreme Court said . . . there’s no problem here, nothing to see here.
ME: Why did they say that in 1972?
JUDGE SMITH: Yeah.
ME: Because times can blind, Your Honor. In 1972, . . . it was criminal to be gay in most states in this country.
“Times can blind.” No matter how many times or how many ways I used Justice Kennedy’s words, it would never be enough. I felt particularly vindicated when, during the oral argument in the Texas case that followed ours, Judge Graves joked, “All this talk about Baker and the seventies is making me nostalgic for my Afro and my 8-track tapes.” It’s hard to imagine a better way to illustrate how dramatically the times had changed than that.
At one point during my argument, Judge Smith brought up the legacy of Windsor, which led to the following humorous exchange:
JUDGE SMITH: What do you think it is in Windsor, and of course I know you’re intimately familiar with Windsor because you tried that case and argued that case.
ME: I’ve heard of the case, Your Honor. Yes.
[LAUGHTER]
JUDGE SMITH: And congratulations to you for your good work there.
This led Judge Smith to ask me why I believed that the decision in Windsor dictated a pro-equality ruling at the Fifth Circuit. I had spent a lot of time thinking about why so many courts had struck down bans on marriages between gay couples in so many states in the wake of Windsor, so I answered:
I don’t often find myself agreeing with Justice Scalia on this issue, in this area, but here I have to say I agree with him completely. While the holding of Windsor clearly does not apply to the right of couples to marry under state law under the Fourteenth Amendment, the logic of Windsor does. Because the logic of Windsor . . . says that gay people have dignity that’s equal to everyone else. And once you accept that gay people have the same kind, are equal to everyone else, then all these reasons really make no sense. That’s why you’re seeing this . . . enormous groundswell in the federal courts. Not because it’s a popularity contest, but because when you look at the logic of Windsor, it’s hard to imagine treating gay people in such a discriminatory manner, if you accept the fact that they’re the same as everyone else.
During my Fifth Circuit argument, I was again very reluctant as a New Yorker to criticize the state of Mississippi:
ME: I’m not from Mississippi, but Judge Reeves below certainly was, and he was not as optimistic as Judge Sutton in the Sixth Circuit that the democratic process in Mississippi could be relied upon to give gay people their rights under the Fourteenth Amendment. You can read that yourselves. He’s much more of an expert on that than I am.
JUDGE GRAVES: Well we got an amicus brief from members of the Mississippi legislature, didn’t we in this case?
ME: We did. It didn’t predict, if I recall correctly, that they intended to pass equal rights for gay people any time soon.
[LAUGHTER]
Once again, the judges had made my arguments for me. When my time was up, the attorney for the state of Mississippi, Justin Matheny, stood up for his rebuttal. He was at the podium only a brief time, but it involved what was probably the best exchange of the entire day. Matheny argued that time, rather than judicial intervention by the court, would ultimately resolve the issue of discrimination against gay people and that the courts should not step in: “Saying that Mississippi will never change its mind, or it’s not likely to, is not a reason to take away the state’s ability to decide things.”
Judge Higginbotham paused for a moment, ran his hand through his leonine white mane of hair, and, leaning back in his chair, looked down at Matheny from the bench. He then intoned, “Those words, ‘will Mississippi change its mind?’ have resonated in these halls before.”
With this comment, Judge Higginbotham, who had first been appointed to the bench when John Minor Wisdom was still presiding over cases at the Fifth Circuit, clearly and firmly connected African American civil rights and gay rights. Justin Matheny did not reply but simply closed his rebuttal by saying, “The state asks that the court reverse the district court’s preliminary injunction below,” before quickly taking his seat.
After the oral arguments, we all went out for lunch at Herbsaint, a restaurant across Lafayette Square from the courthouse where we gorged on mint juleps, fried oysters, and gumbo. Our clients Carla and Joce were thrilled to be able to meet “Miss Edie” by cell phone when I called to tell her about the argument. On her Facebook post later that day, Joce recalled, “So, we’re sitting at lunch. And Roberta Kaplan says ‘Let’s call Edie! She’ll want to know how it went.’ I’m sitting there in awe watching the incredible Robbie Kaplan tell Edie Windsor that today was all about her name. And then Robbie says, ‘You wanna talk to my Mississippi plaintiff?’ And hands me the phone.”
I was proud to have argued this case in a place where so much civil rights history had been made. Now all we could do was wait and see whether we had persuaded the Fifth Circuit to continue making history.