Then Comes Marriage (32 page)

Cooper started his argument by focusing on whether Prop 8's proponents even had standing to defend the measure. This was the more technical, jurisdictional part of the case, but the detailed questioning made it clear that the answer wasn't cut and dried. Then Chief Justice Roberts invited Cooper to address the merits, and that's when things started to get interesting.

JUSTICE SOTOMAYOR
: Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

CHARLES COOPER
: Your honor, I cannot. I do not have any—anything to offer you in that regard.

I couldn't believe what I had just heard with my own ears. Turning to Amy Howe, I whispered, “Did he just say what I think he said? Did he just concede that I win my case?”

Amy whispered back, “Yeah, I think he did.”

Chuck Cooper had just admitted that, other than the right to marry, any statute that treats gay people differently from straight people would be presumptively unconstitutional. As far as I was concerned, the same logic would apply to DOMA since the couples adversely affected by DOMA were already gay and already married. This was therefore a pretty significant concession that DOMA itself was unconstitutional.

After that exchange, I was feeling pretty good about our chances, to say the least. And then things only got better, with the following humorous exchange between Chuck Cooper and Justice Kagan:

JUSTICE KAGAN
: If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?

COOPER
: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple—are infertile, and the traditional— [LAUGHTER]

JUSTICE KAGAN
: No, really, because if the couple—I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. [LAUGHTER]

This exchange perfectly summed up the flaws in the procreation argument for denying gay couples the right to marry, although Cooper continued to insist that if one person in the couple—the man, obviously—remained fertile, then the government's interest in procreation was still satisfied. Justice Kagan kept pushing back, until finally Justice Scalia saw fit to interject, to much laughter, “Strom Thurmond was not the chairman of the Senate committee when Justice Kagan was confirmed.”

Ted Olson went next, and the first half of his argument went more or less as expected, with Justices Alito, Scalia, and Roberts asking pointed questions, and the other justices periodically interjecting friendly questions. The most interesting part was the following exchange with Justice Scalia:

JUSTICE SCALIA
: I'm curious—when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . .

When did the law become this?

TED OLSON
: When—may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?

JUSTICE SCALIA
: It's an easy question, I think, for that one. At the time that the Equal Protection Clause was adopted. That's absolutely true.

But don't give me a question to my question. [LAUGHTER]

When do you think it became unconstitutional?

Ted and Justice Scalia went back and forth a bit on the question, but Scalia kept pressing the issue.

JUSTICE SCALIA
: Was it always unconstitutional?

OLSON
: It was constitutional when we—as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that—

JUSTICE SCALIA
: I see. When did that happen? When did that happen?

OLSON
: There's no specific date in time. This is an evolutionary cycle.

JUSTICE SCALIA
: Well, how am I supposed to decide a case then—

OLSON
: Because the case that's before you—

JUSTICE SCALIA
: —if you can't give me a date when the Constitution changes?

What struck me was that instead of focusing his ire on the “homosexual agenda,” as he had in his dissent in
Lawrence
, Justice Scalia was now spending his energy and time attacking Ted. Coming into this oral argument, I wasn't sure how fierce Justice Scalia's questions might get. Afterward, I felt confident that I didn't need to worry unduly about any verbal flame-throwing from him, which was a relief.

When the oral arguments in
Perry
were over, our whole team reconnoitered at the DC Paul, Weiss office to compare notes. The firm had ordered Chinese food (accompanied by boxes of matzoh) for lunch, so when we walked into the big conference room, the table was laden with little white cartons. The Supreme Court had already posted a link to the audio of the argument, so we all sat around the table, scarfing down Chinese food, listening to it. We would stop the audio periodically, discuss how best to answer certain of the questions the justices had asked, and assess whether we needed to change any part of our strategy.

We discussed the exchange between Justice Scalia and Ted, with Jaren suggesting two possible answers: either DOMA was unconstitutional in 1996, when it was passed, or it was unconstitutional from 1791 onward, because it had never been the role of the federal government to step in and override the decisions of the states with respect to marriage. We started debating the issue back and forth, and it was about that time that I glanced down at my BlackBerry and read the first few lines of an e-mail that I had just received.

It was from a lawyer who had been at one of the moots. The e-mail started innocuously enough, just sending “good vibes” for my argument. But as I scrolled down, I saw that the lawyer was proposing to dictate an entire opening argument for me, down to starting with “Mr. Chief Justice and may it please the Court.” The e-mail even provided a handy pronunciation guide, referring at one point to “Mr. Clement [Pronounced Cle MENT with accent on Ment].”

That was about as far as I got. In a moment of surprising sanity on my part, I slid my BlackBerry across the table to Pam and said, “I don't think I want to read this. Can you take care of it?”

As Pam read the e-mail, her mouth fell open. The notion that someone who was not part of our team, had never been involved in any of our subsequent strategy sessions, and had no idea what my opening argument even was at this point would write a brand-new one, send it to me less than twenty-four hours before I was about to stand in front of the Supreme Court, and believe that this was actually a productive way to help me was pretty amazing. What was I going to do, just throw all our months of work and preparation out the window? What kind of lawyer would truly think that we weren't as prepared as we could possibly be for this argument?

Pam read the whole thing, then said, “Yeah, I don't think you need to finish this.” I asked what we should do, and she said—and this is why I so love Pam—“We could send an e-mail that says, ‘Someone has hacked into your e-mail account and is sending bizarre messages. You really need to change your password.' ”

I never responded to that e-mail, but one good thing did come out of it. For weeks afterward, whenever people on our team e-mailed each other, they'd include little pronunciation guides such as “It's pronounced WIND-sor” or “That's pronounced fo-CUS, in case you care.”

AS I WAS
walking into the hotel later that afternoon, my cell phone rang. I took the call while standing in the lobby, and just at that moment, Jacob walked by with his nanny, Ellie. He ran up to greet me, shouting with excitement, but I put my hand out to stop him. “Not now,” I said. This was not something I ever did, but these were extraordinary circumstances, although Jacob couldn't have been expected to know or understand that.

Jacob got very upset, and Ellie took him away to try to soothe him. I finished my call and went up to my hotel room to continue working. In fifteen hours, I would be standing in front of the Supreme Court, arguing the most important case of my life, and I intended to work for the rest of the afternoon and evening, with as few distractions as possible, before (hopefully) getting a good night's sleep.

Rachel and Jacob were staying at the hotel in a separate room so that I could have space to work and sleep without interruption. It hadn't occurred to me, but this was very strange for Jacob, who was not used to having his two moms staying in different rooms. We had explained to him why it was necessary, but for a six-year-old logic has little sway over emotion. Not only were we not all staying in the same hotel room together but he had hardly seen me in the last few weeks, and now I had just blown him off when he had been so excited and happy to see me.

I honestly wasn't really thinking about any of this, but about thirty minutes or so after I had gone up to my room, as I was reading through my notes for the thousandth time, my phone rang. It was Rachel.

“Robbie, I need you to come down here right now,” she said. “Jacob is really upset.”

“I can't,” I told her. “I'm still preparing.” She told me that Jacob was crying, which was something he didn't normally do. “You need to come down.”

“Rachel, I don't have time. I have to read this really important—”

“Enough!” she said. “There are a million people working on the case, but Jacob only has two parents, and he needs you right now.” There was no appropriate response other than “Okay, I'll be right down.”

When I got to their hotel room, I saw that Rachel was absolutely right. Jacob was as upset as I had ever seen him, sitting on the floor in a corner in the bathroom with his back to us. Seeing him like that completely broke my heart, and I crouched down to try to apologize and to kiss and hug him. But he wouldn't budge until Rachel finally said, “Jacob, how would you feel if you and Eema [the Hebrew word for ‘mother,' which is what Jacob calls me] went back to her room and you guys had milk and cookies together?”

At last Jacob turned to look at us. “Really?” he said, sniffling.

“Yes,” Rachel said. “We will all go to Eema's room together.” This was what Jacob wanted, to have our whole family together, and so the three of us went up to my room, ordered milk and cookies from room service, and cuddled up on the bed to watch cartoons. We watched several episodes of
SpongeBob SquarePants
and
Johnny Test
, and Jacob sat contentedly between Rachel and me, munching on cookies.

As Rachel noted later, this was a perfect metaphor for what the case was about. Children need their parents. They need to know that their parents will be there for them whenever they want them, and getting married is a way to help make sure those relationships are kept safe. By spending that time with my wife and our child, we were embodying what
family
means in the truest sense of the word. In fact, in retrospect, I really can't think of a better way to have spent my final afternoon before my Supreme Court argument.

15

SKIM MILK

A
t 6:35 a.m. on March 27, 2013, I sent Pam the following e-mail from my hotel room: “The blowout is happening. In case you were concerned.” This was not some coded secret message about last-minute SCOTUS strategy, it was literally true—I was referring to the fact that at that very moment, my friend David Milligan was in my hotel room giving me a very big, very Washington, DC–style hairdo. My e-mail, of course, was a follow-up to the joke I had made back in December when we learned that
Windsor
was going to the Supreme Court. At approximately 6:40 a.m., Pam characteristically responded in kind, noting that she was “confident that you will have the biggest hair in the whole damn room.” As for her own hairdo, she observed that “I'm sprayed to a fine lacquer . . . see you over at the Court.”

Emily had arranged for our transportation, so Rachel, Emily, Edie, Edie's friend Virginia Maraweck, and I all piled into a big black car for the short ride over to the Court—or what we thought was going to be a short ride. The Court was literally less than two miles away from our hotel, mostly a straight shot along the National Mall, but somehow the driver ended up on the highway, heading out of Washington, DC.
Really?
This was how my big day in front of the Supreme Court was starting off? I thought I was going to have a heart attack. Soon enough, however, the driver exited the highway and we were there.

Already, there was a huge crowd of people, reporters, camera crews, and police gathered outside the Supreme Court building. We walked into a side entrance, went through security, and made our way to the cafeteria, where Pam had suggested that we should all meet that morning. From the moment we walked in, however, people started mobbing Edie, wanting to shake her hand, get her autograph, and take selfies with her. She loved the attention, but it wasn't the ideal atmosphere for us to be able to focus. The lawyers' lounge would be quieter, but Edie and her friend could not go in there since they were not lawyers, so we weren't sure where we could go to get some peace and quiet. Fortunately, one of the many kind Supreme Court employees offered to take us to the clerk's office, where Edie was “protected” from her legions of fans.

Pam, James, Jaren, and I were soon ushered into the lawyers' lounge, where the lawyers appearing before the Court traditionally wait before argument. I had been there a few weeks earlier, when I had gone to see a Supreme Court oral argument, so I was familiar with the instructions that General William Suter, the Clerk of the Supreme Court, regularly gave to the lawyers. As General Suter informed everyone in the lawyers' lounge that the Court had extra pencils, cough drops, and sewing kits available for counsel, I remember thinking to myself,
What in the world would I do with a sewing kit right now?
Even if I had lost a button on my blazer, I'm pretty sure that if I tried to sew it on right before standing up to argue in front of the Supreme Court, I would probably take off a finger in the process. Another friend who had argued before the Court had advised me to put on my makeup in the lawyers' lounge, but I didn't do that either, convinced that if I tried, I would end up looking like Chuckles the Clown from
The
Mary Tyler Moore Show
.