Forcing the Spring: Inside the Fight for Marriage Equality (48 page)

“
Of the two components of the presentation of the case, the brief is ever so much more important,” Justice Ruth Bader Ginsburg once said. “It’s what we start with; it’s what we go back to.”

Good briefs are fast-paced and conversational; Justice Clarence Thomas once said the best ones read like an episode of the TV show
24
. They avoid the linguistic pet peeves of the justices; Justice Kennedy did not appreciate adverbs, for instance, while Justice Scalia was a self-described snoot, a fastidious nitpicker “for the mot juste, for using a word precisely the way it should be used.” They are direct; Justice Roberts did not want to be made to hack “through a jungle with a machete to try to get to the point.”

The briefs in both the DOMA and Prop 8 cases reflected the caliber of the lawyers involved. Kaplan’s brief was a legal love story. It opened with a detailed description of the four decades that Edie and Thea had spent together, in an effort to persuade the justices that there was no real difference between Edie’s marriage and their own. In “sickness and in health,” Kaplan wrote, they bought a home, supported one another’s careers, coped with Thea’s progressive multiple sclerosis as “she moved from a cane, to crutches, to a wheelchair,” and ultimately married, in a legal ceremony in Canada that was subsequently recognized by the state of New York.

The brief filed by Paul Clement, Kaplan’s opponent, reflected his view that DOMA was probably dead on arrival if he could not prevent the Court from applying heightened scrutiny. It played up the recent political victories with a declaration that “the democratic process is at work,” and played on the justices’ institutional concerns with a warning that “constitutionalizing an issue yields a one-size-fits-all solution that tends to harden the views of those who lose out at the courthouse.”

Cooper’s offered a sharper version of the arguments he had been making all along, branding “plaintiffs’ genderless, adult-centered understanding of marriage” an “academic invention.” Borrowing Olson’s line at the press conference announcing the case, it declared that the citizens of California bore gays and lesbians no ill will: “They are our family members, our friends, our colleagues and co-workers, our community and business leaders, and our public officials.”

Olson’s brief stood out for two reasons. The Supreme Court’s guidelines warn lawyers in no uncertain terms to “focus only on the question or questions presented in the petition that was granted. Do not deviate.” And generally,
lawyers in Olson’s position defend the grounds upon which a lower court decided in their favor.

Because of the narrow way the Ninth Circuit had decided the case, only one question regarding the merits of Proposition 8 was presented to the Court: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”

But the question that Olson set out to answer first, before any other, was a different one: whether the Constitution’s due process clause prohibited states across the country from denying the fundamental right to marry to gays and lesbians—the very question that the Ninth Circuit had said should not be decided in the Proposition 8 case.

“This case is about marriage, ‘the most important relation in life,’” Olson’s brief opened, “a relationship and intimate decision that this Court has variously described at least 14 times as a right protected by the Due Process Clause that is central for
all
individuals’ liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one’s place in society; and an expression of love, emotional support, public commitment, and social status.”

An earlier version, drafted by some of the younger appellate lawyers on the team and approved by Boutrous, had emphasized the discriminatory nature of Proposition 8, both because that was the equal protection argument the Court had instructed them to make and because it offered the Court an easier, more incremental way to decide the case; if the justices were so inclined, they could find that Proposition 8 was motivated by prejudice while leaving open the possibility that bans in other states in fact did serve some legitimate governmental purpose.

Olson fully understood the power of the equal protection argument. The final version of the brief quoted the Court’s most famous equal protection decision,
Brown v. Board of Education,
on its very first page, declaring that Proposition 8 “‘generates a feeling of inferiority’ among gay men and lesbians—and especially their children—‘that may affect their hearts and minds in a way unlikely ever to be undone.’”

“
But he felt strongly, in his gut, that he wanted to lead with due process,” Boutrous recalled.

Due process was the basis of Justice Kennedy’s decision in the landmark
Lawrence
case striking down laws criminalizing sodomy. Resolving the Proposition 8 case on due process grounds also obviated the need for the Court to declare a new suspect class, something it had not done since 1972; when the government infringed on a fundamental right, the Court applies a strict scrutiny test regardless of the nature of the group involved. Most important, it allowed Olson to talk about the importance of marriage, the right at stake, to his clients and people like them, and deciding the case on that basis would require the justices to issue the nationwide decision that he wanted.

The case was certainly about the right to be treated equally, to not be singled out and relegated to a lower rung in some voter-imposed caste system. But fundamentally what their clients wanted, in Olson’s view, was to be freed from government intrusion into their lives so they could marry one another. “
Ted wasn’t going to shy away from that argument just because it was a fifty-state decision,” Boutrous said, “because his view was that it ought to be.”

The fundamental right to marry was a theme the brief returned to repeatedly. “Proponents accuse Plaintiffs (repeatedly) of ‘redefining marriage.’ . . . But it is Proponents who have imagined (not from
any
of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into ‘responsible procreation.’ In their 65-page brief about marriage in California, Proponents do not even mention the word ‘love.’ They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right.”

As the moot got under way, however, his inquisitors quickly zeroed in on the potential problem with Olson’s framing. If the fundamental right to marry was the right to marry the person you love, what was the limiting principle?

Olson had asked Lisa Blatt, an attorney for Arnold & Porter who had argued more than thirty cases before the Supreme Court and won all but one of them, to play the role of devil’s advocate, which she did now with zeal.

“Could I marry my sister?” she asked.

The government might well have a good and constitutionally justifiable reason to prohibit incest, he parried. Blatt came right back at him: “Okay, we won’t have sex. I want to marry my sister. I love her.

“I think under your view,” she pressed, “you have a constitutional right to marry anyone.”

This slippery slope question had come up at every moot court, usually framed around whether polygamy bans were unconstitutional. Terry Stewart had suggested saying that the right to marry the person one loved was the right to marry one person, not two. Olson had toyed with a number of other responses, including that prohibiting polygamy did not single out a disfavored class and served important enough governmental interests to meet the strict scrutiny test, such as preventing the exploitation of women. But given that spending even a minute on this issue would eat up one-twentieth of his time, his plan was to brush past it as quickly as he could, then look to a friendly justice to redirect the argument. In the end, he just did not feel as though it was going to be dispositive.

“This court isn’t going to decide this case on polygamy grounds,” he’d said during a previous session. “It could be time-consuming and a little like quicksand, so I don’t want to stay there.”

Olson swatted away other questions with ease. He had three words for the state’s interest in promoting procreative relationships: “
Turner v. Safely
,” the holding by the Supreme Court that the fundamental right to marry could not be denied to prisoners, who by virtue of their incarceration were incapable of procreating. Pressed on whether he was simply arguing over a “cocktail conversation—when you introduce someone at a party you can’t say, ‘This is my wife,’” he shot back that it was not simply a word.

“The institution of marriage is understood and appreciated in this country. It is like the word ‘citizen.’ You could give every individual the right to vote, the right to travel, the right do all the things that citizens can do, and withhold from them the right to call themselves citizens, and they would know, everyone would know, that’s second class. That’s not as good as being a citizen.”

“So, it feels better to be married,” Blatt pressed, trying to be as acerbic as possible.

“And it would feel better to be able to drink out of the same drinking fountain, to go to the same schools, and marry someone of the same race,” he retorted.

“I love the way you argue,” said Blatt, critiquing him afterward. “I’m not
sure that I buy your answers with respect to polygamy and incest. I don’t know that it’s going to matter, in the end, to Justice Kennedy. I’m very moved by everything you said. It just comes down to—”

She paused. “What he thinks.”

In Olson’s view, the first words in an oral argument are the most likely to be remembered. Kaplan shared that assessment, which was why, when it was her turn, she began with the less than stirring declaration that “this is an as-applied challenge.”

Olson had framed his case as a landmark, explicitly asking the Court for a
Brown
-like decision by quoting the case on the opening page of his brief. “He’s shooting for the stars,” she had thought, reading it. Kaplan had the opposite strategy. She wanted the Court to believe that hers was a run-of-the-mill, easy-to-decide estate tax dispute, nothing historic about it. She had even given the Court the out of declaring the law unconstitutional “as applied” to her client and the estate tax, rather than filing a facial challenge to the law that would require them to find the denial of all benefits to any legally married same-sex couple unconstitutional.

She and the other lawyers on her team privately joked that Edie was “already married, already gay.” The only question the Court need decide was whether the federal government was justified in treating Edie and Thea’s marriage differently when it taxed her client on property she had inherited from her wife, based on a law that insisted they be treated as legal strangers.

If Olson’s challenge was to convince the Court that the fundamental right to marry the person of your choice extended to gays and lesbians, but not, as Blatt had put it, to “my cat,” the challenge Kaplan faced was that there was no fundamental right to a tax break. Clement, in his brief, had argued that Congress had plenty of reasons to pass DOMA, including a desire to save money by denying gays and lesbians survivor benefits, that could pass constitutional muster under a strict rational basis test.

“It’s a federal benefit,” McGill challenged her, “so there is a federal interest in determining who gets a federal benefit.”

“We could all agree,” she protested, “that the federal government could not say we are only going to give estate tax relief to couples married in the springtime.”

What about Clement’s argument that the federal government had an interest in promoting relationships that could produce children?

“It’s hard to see,” she said.

No babies, no tax base, came the rejoinder.

“DOMA had nothing to do with that,” she said.

“How do you explain the child tax credit?” McGill pressed.

She answered the questions one by one, which was where the critique began once the session came to an end. She had a good voice, and a good tone that she should seek to maintain, Blatt said. “Don’t look even remotely bothered by any question. You look at them and say, ‘More, more, more.’ The minute they think they have you, you are hosed.” But, she added, Kaplan needed to avoid getting bogged down in the weeds. “You gotta get your affirmative case out. You’re not there to just answer questions.”

At another moot court session, Kathleen Sullivan, one of the appellate lawyers whom Olson had originally approached before teaming up with Boies, advised Kaplan to “de-gay” the case. Sullivan’s view was that Kaplan should emphasize the Supreme Court decisions that struck down laws that singled out hippies and the disabled, despite the fact that neither group was considered a suspect class, over the Court’s landmark gay rights decisions in
Romer
and
Lawrence
.

Blatt gave Kaplan the exact opposite advice. The DOMA case was about, as Olson put it in his opening, “fencing” gay people off, Blatt said. She needed to be more passionate on that front. “I did not like your opening. If you want to keep it about estate taxes, fine. But I’d use some of Ted’s lines.”