Then Comes Marriage (20 page)

At the ACLU event, Julie played bodyguard to Edie, who was greeted like a rock star. “Everybody wanted to buy Edie a drink,” Julie recalls. Edie happily obliged, accepting (though not always drinking) the only alcohol she's not allergic to, vodka, and posing for photographs with everyone who asked. Her fame was growing and her story was getting out, which could only help us. More than ever, I believed that if people came to know Edie well and learned the details of her four decades with Thea, they would come to see DOMA as an unfair, discriminatory, antigay relic. For that reason, I wanted to make sure that every one of our court filings focused on Edie's personal story as much as possible.

Which is why, around that same time, I gave Julie another unusual assignment. One of the briefs drafted by our side felt too lawyerly to me. “The draft of this brief is terrible. It's not up to Paul, Weiss standards,” I told Julie. “I want more feeling in it, more emotion. I want a brief that is in keeping with the greatest traditions of this law firm.” She did not say anything, so I said, “Listen, you need to ‘Julie this up.' Go have a drink somewhere, take Jaren with you—get drunk if you have to—but fix this brief.”

Julie took my advice, literally. She called Jaren and invited her to Ted's Montana Grill, a restaurant across the street from the office. Over beer and pickles, they talked at length about the filing, with Julie finally deciding that “I wanted someone to read this legal document and cry. These women devoted their whole lives to each other. Thea was sick for thirty years, and Edie took care of her. Whatever relationship you, the reader of this brief have, this is the one you'd rather have. And the government has discarded it.”

The next draft of the brief was brilliant, as was so much of the work the team did. On June 24, we filed our five expert affidavits, as well as our motion for summary judgment. I happened to be on a family trip to Israel with Rachel and Jacob, and though I did not mind being away for the filings, I was sorry to miss another big event that happened to take place that very same day.

WE WERE SITTING
at a restaurant in the Neve Tzedek (ironically, in Hebrew, “abode of justice”) neighborhood of Tel Aviv, enjoying a meal of Israeli-style Spanish tapas, when my BlackBerry buzzed. I looked at the message and let out a whoop of joy: the New York legislature had just passed the Marriage Equality Act, making it legal for gay New Yorkers to marry. Five years after I had lost the
Hernandez
case, forcing Edie and Thea—and countless other gay New Yorkers—to travel to Canada to wed, same-sex couples would finally be able to marry in our own home state.

We had known that there was a fierce battle going on behind the scenes in the New York legislature because one of Rachel's and my closest friends, and one of New York's top political consultants, Emily Giske, was leading the charge. (My former client Danny O'Donnell, perhaps at least in part because of our defeat at the Court of Appeals in 2006, had over the years become one of the most prominent legislative sponsors of the bill.) Emily had been sending me a series of e-mails that, in her own inimitable style, became terser and terser as time went on. I could always tell how the political situation was changing by the number and volume of e-mails that Emily sent—the fewer and briefer the e-mails, the better the chances of passage. But I do not think that anyone else outside of Albany had any realistic conception that the legislation might actually pass in 2011. Just a year and a half earlier, the state senate had rejected a marriage equality bill by a vote of 38–24—a resounding defeat that we had watched, heartbroken, on closed-circuit TV in a conference room at Paul, Weiss. And in late 2010, when then–Governor David Paterson had floated the idea of trying to pass a marriage equality bill during the legislature's lame-duck session, he had given up when it was clear the votes simply were not there.

So, while I had every confidence in my friend Emily's political skills, I had tried not to get my hopes up. The news that New York had just become the sixth state to extend marriage rights to gays and lesbians was incredibly gratifying, and it was also good news for our case.

The fact that we were bringing a DOMA challenge in a state that did not permit marriage between same-sex partners had always been a bit of a wrench in our case. From a technical, legal standpoint it was not an impediment, since New York did officially recognize such marriages when performed in Canada. From a perception standpoint, however, it certainly was not the strongest fact for our case. Now that New York was permitting marriage—and even better, by legislative vote rather than by court order—we were instantly on stronger footing.

Governor Cuomo, who had played a key role in championing marriage equality, signed the legislation into law that very same day, Friday, June 24—the first day of New York City's Pride weekend. Rachel and I wanted more than anything to be back in New York for the parade that Sunday, but we were not scheduled to leave Tel Aviv until the 28th. We did check out a few earlier flights online, but with the time zone differences and the length of the trip, we simply could not make it back in time. I was very sorry we would miss the parade and the community outpouring of joy, but at least I knew that when we did get back, we would be returning to a changed New York. Edie's case would be stronger than ever.

Late that night, I received an e-mail from my law partner Andrew Ehrlich, who had worked with me on the 2006
Hernandez
case and was the very first colleague I had brought in to help with Edie's case. “We have come a long way since that terrible morning we got the
Hernandez
decision,” he wrote. “Thank you for letting me be part of the journey. Congratulations.”

The dominoes appeared to be falling our way—which is perhaps why BLAG, two weeks later, began flailing a bit in their filings, making claims that went beyond unlikely and into the realm of the absurd.

10

PROFESSOR DIAMOND
AND CAPTAIN UNDERPANTS

I
f Thea had been “Theo”—in other words, if she had been born a man rather than a woman—then Edie, upon being widowed, would not have had to pay a single penny of estate tax on her inheritance. This was a simple fact, true in all fifty states, and it was a pillar of our case. If we could establish this fact to the satisfaction of the court, then we could focus our argument on the fact that DOMA, and DOMA alone, was the reason why Edie was forced to pay those taxes.

In a court case, however, you cannot just say that a statement is a fact. Establishing an undisputed fact for purposes of a case can be a two-step process: first, the plaintiff files “requests for admissions,” laying out the factual groundwork for the case. Then the defense responds by either admitting or denying the truth of each fact asserted, with the goal of eliminating unnecessary argument over elements of the case that everyone can and should be able to agree on. In its response to our filing, which asked BLAG to admit as fact that Edie would not have paid those taxes if Thea had been a man, BLAG asserted that they were “without sufficient knowledge or information to admit or deny whether this hypothetical estate would have been entitled to the marital tax deduction.”

It was a pretty disingenuous answer, and not their only one. When we asked BLAG to admit that “lesbians and gay men have experienced a history of unequal treatment in the United States because of their sexual orientation,” BLAG replied that the statement was “undefined and vague.” In fact, of the twenty-eight requests for admission we filed, BLAG failed to provide any meaningful response to twenty-three of them, stating over and over again that the terms and phrases we used were “undefined,” “vague,” or both.

To a certain extent, this was just lawyers lawyering. Court battles commonly go this way, with no side wanting to cede an inch of territory to the other side. I didn't mind most of BLAG's posturing, because I had fully expected them to reject a certain number of our requests as a matter of course. But the two that rankled were their refusal to acknowledge that Edie paid those taxes solely because Thea was a woman, and their insistence that they had no idea what we meant by “discrimination.” We answered with a sharp letter to Magistrate Judge Francis, skewering BLAG for its nonresponses:

[T]here is clearly nothing even remotely vague about terms like “discrimination,” “unequal treatment,” “stereotypes,” “denied jobs,” or “terminated from jobs.” . . . These phrases are not part of some technical or scientific jargon, are common English words, and mean precisely what their plain language indicates. . . .

Moreover, it is simply not plausible that the House of Representatives does not understand what the term “discrimination” means in light of the fact that there are numerous federal statutes directly addressed to prohibiting discrimination (albeit none that would protect gay men and lesbians).

Ten days later, the magistrate judge issued his order: BLAG would not have to respond to most of our requests for admission, because the issues presented were too complex. “Any complete answer to the questions posed here could fill volumes and would not serve to streamline the legislation,” he wrote. Magistrate Judge Francis did, however, order BLAG to admit or deny our central point—namely, that Edie would not have had to pay any estate taxes if Thea had been a man. BLAG ultimately did admit that this was true, an admission that would play a big role later at the Supreme Court. Our case was getting stronger—and then, once again, BLAG made a misstep that we were able to exploit.

One of BLAG's core arguments in the case was that being gay was a choice rather than immutable. This was the reason they had asked for documentation of Edie's first marriage—they wanted to show that Edie supposedly had a choice about being a lesbian since she had once been married to a man. In the discovery process, rather than asking experts to file affidavits in support of their argument, BLAG chose instead to cite published articles. One was by a researcher named Lisa Diamond, an associate professor of psychology and gender studies at the University of Utah, who had written a book called
Sexual Fluidity: Understanding Women's Love and Desire
.

I had never heard of Lisa Diamond, but when I Googled her, I made several surprising discoveries. First, she had been publishing articles about lesbians and lesbian sexuality for years, not the typical résumé of a person who wants to be part of a DOMA defense. As I scrolled through her list of publications, awards, and grants, I became convinced that she was more likely on our side than BLAG's. Then I found the holy grail: a 2008 interview in the
Salt Lake Tribune
where she explained that her research had been misused by an antigay group called NARTH:

If NARTH had read the study more carefully they would find that it is not supported by my data at all. I bent over backward to make it difficult for my work to be misused, and to no avail. When people are motivated to twist something for political purposes, they'll find a way to do it.

It was astonishing. Diamond had stated plainly that she did not want her research being used to bolster antigay arguments about “immutability,” and yet the BLAG attorneys either did not know this fact or chose to ignore it. Unless Diamond had suddenly changed her mind over the last year or so, BLAG had just made a crucial mistake—one that I could hardly wait to take advantage of.

I decided that we should contact Diamond ourselves, in the hope that she might be willing to repudiate BLAG's use of her research in our case. It is unusual, and risky, to contact an academic whose work is cited by your opponent. You have no idea how she or he might react, and the conversations are not considered privileged, because that person is not your expert or your client. Here, however, the potential benefit clearly outweighed the risk. Instead of making the call myself, I asked my Paul, Weiss partner Craig Benson to do it, to keep things under the radar in case Professor Diamond did not respond well. Craig called her on August 18, leaving a voice mail message letting her know that BLAG had cited her work and asking whether she would be interested in filing an affidavit to counter BLAG's claims.

She shot back an e-mail that same day. “Craig, just listened to your message,” she wrote. “You are correct, they are misusing my work (and as you mentioned, it's not the first time . . . grrrrr!!!). I can do the affidavit—let's talk by phone tomorrow about the details.”

Over the next week, we worked with Professor Diamond to prepare and file a short affidavit—one that BLAG had no idea was coming. In it, Professor Diamond slammed the opposition, declaring, “BLAG misconstrues and distorts my research findings, which do not support the position for which BLAG cites them . . . BLAG has incorrectly characterized my research.” And, in case it was not already abundantly clear, “Counsel for BLAG never requested that I serve as an expert witness for them in the above-referenced lawsuit. If they had so requested, I would not have agreed to do so.”

Later in their brief, BLAG actually had the chutzpah to continue to cite Diamond's work to support the following proposition:

Plaintiff's claim runs headlong into the different definition of the terms “sexual orientation,” “homosexual,” “gay,” and “lesbian” . . . These differing definitions show that these terms are amorphous and do not adequately describe a particular class.

In response, we included in our brief what is probably one of my favorite passages in any of our briefs in the case:

Perhaps most surprising, is BLAG's assertion . . . that there is no such thing as a “class” of gay men and lesbians . . . [W]hat BLAG appears to be saying is that because academics in the field do not uniformly agree upon the precise definition of terms like “gay” or “lesbian,” what constitutes a homosexual sexual orientation is too amorphous for lesbians and gay men to constitute an identifiable class of persons for purposes of the United States Constitution.