Then Comes Marriage (19 page)

If BLAG thought that Edie's first marriage and divorce proved gay people could choose their sexual orientation, I was more than happy to help them make that blunder. As a matter of fact, Edie's first marriage proved exactly the opposite—that she had no choice about being gay. We entered Edie's marriage and divorce certificates from Philadelphia into the record, and I felt encouraged that BLAG seemed to be off the mark in its preparation for the case—an impression that only grew as we moved deeper into the discovery phase.

BY THE TIME
Paul Clement came on board, five long months had passed since we had filed Edie's suit, and virtually nothing had happened; despite my “Edie has the sniffles” letters, we had made no progress in actually moving the case forward. Between the DOJ's two thirty-day extensions, the appointment of BLAG, and the kerfuffle between Clement and King & Spalding, we had faced delay upon delay, none of which were the result of anything we had set in motion, so I was even more desperate to get the process moving. We set up a conference in early May with the BLAG lawyers and Magistrate Judge James Francis, who was handling scheduling and other pretrial matters on behalf of Judge Jones, to discuss the schedule. I was a woman on a mission.

Normally, the process in a case like this is both rigidly defined and predictable. Typically, the first thing that happens after a complaint is filed is that the defendant files a motion to dismiss the case on the ground that the plaintiff has failed to plead valid causes of action. The plaintiff then files a brief opposing dismissal. Then, assuming the court denies the motion to dismiss, both sides engage in discovery, which involves producing documents, taking depositions, and compiling the affidavits and briefs that will explain the facts of the case for the judge. At the close of discovery, either or both sides can file a motion for summary judgment based on the evidence marshalled during discovery, which the judge may or may not grant. As a result, both sides already knew how this case would unfold, but I hoped that in this conference, we could at least urge the magistrate judge to help it unfold as quickly as possible.

“We're ready to go,” I told Judge Francis. “If BLAG files their motion to dismiss according to schedule, we can both oppose it and at the same time file our own motion for summary judgment immediately after that.” In other (nonlegal jargon) words,
Let's get this show on the road!

You could practically hear the tires screeching to a halt as the BLAG attorney told the judge, “We're not ready.” I believe I actually let out a groan. The defense did not care how long this process took—and why should they? In court cases, delay is often the rule, not the exception, particularly for defendants, so this was just business as usual. BLAG wanted more time, and we could not file our motion until they had filed theirs, so we were stuck; there was literally nothing we could do to speed up the process. Unless we just threw the process out the window altogether.

“Fine,” I said. “If you guys aren't ready to file your motion to dismiss, then we'll file our motion for summary judgment first. We all know what the arguments are, so what difference does it make which order we go in? Let's just do it this way—it will save time.”

The BLAG lawyers looked stunned, as if I had suggested performing the final crypt scene in a production of
Romeo and Juliet
before the balcony scene. In the buttoned-up world of judicial process, a move like this was beyond unorthodox—it was extraordinary. But at this point, I cared far more about timing than about process. I did not know if switching the order of filings had ever been done before, but why not try it?

James Esseks was stunned, too, saying later that the move put everything “kind of ass-backwards.” But fortunately, Judge Francis liked my idea. He actually seemed irritated that BLAG had asked to delay the case again, so he went a step further and set up an expedited schedule: we would exchange written discovery requests by June 3, and the discovery process had to be finished by July 11. This gave BLAG's attorneys only a couple of weeks to depose our experts, which they were not happy about. Despite their protests, Judge Francis held firm. I was ecstatic. At long last, we might actually be able to get this case moving. We left the conference ready to plunge into discovery.

Doing discovery in a civil case is a bit like undertaking an archaeological dig. It can be slow and tedious work, akin to sifting through mountains of dirt (or in today's world, gigabytes of data) to find valuable pottery shards. But doing discovery well is often the key to winning cases.

I had learned an important lesson from our mistakes in the 2006 New York marriage case, when we had failed to submit experts on our side to bolster our arguments. This time, we made sure to compile affidavits that covered all the bases. They included affidavits from UCLA psychology professor Letitia Anne Peplau, pointing out that sexual orientation exists and is stable over time; Yale history professor George Chauncey, demonstrating that gay people have been subjected to discrimination; and Cambridge child psychology professor Michael Lamb, concluding that children raised by same-sex parents do just as well as children raised by opposite-sex parents.

We also submitted affidavits from Harvard history professor Nancy Cott, explaining that marriage has changed dramatically over time and has always been the purview of the states, rather than the federal government; and from Stanford political science professor Gary Segura, demonstrating that gay people as a group do not possess a meaningful amount of political power. By contrast, BLAG decided against using any of their own expert witnesses at all.

Our expert affidavits would serve to strengthen our argument to Judge Jones by establishing a firm factual record upon which we had built the case. We worked closely with the experts to compile their affidavits, after which BLAG would have a chance to question our experts at depositions, in hopes of finding cracks in their arguments. Unfortunately for their side—but luckily for us—Paul Clement did not do the depositions himself. Instead, he sent a brand-new attorney from his firm to take the depositions of our expert witnesses.

During the depositions, this young BLAG lawyer seemed nervous and ill-prepared. Granted, he was facing a difficult task, trying to poke holes in the arguments of academics who were among the foremost experts in their fields. Often he seemed to be throwing whatever he could at the wall in the hope that something might stick. With Harvard professor Nancy Cott, our expert on the role of the states in marriage, for example, he veered into polygamy during the nineteenth-century in the Utah Territory, the marriages of freed slaves during Reconstruction, and the regulation of Native American affairs by the federal government. Cott calmly refuted all his points, and he then tried out a few more tropes about the supposed slippery slope of polygamy before giving up. If anything, Cott's position was stronger after her deposition than before it.

Sometimes it seemed as if the BLAG lawyer was just going through the motions. While questioning Stanford professor Gary Segura, however, he actually went a bit off the rails. Segura was our political science expert, so the BLAG lawyer was trying to elicit a response showing that gay people actually had a significant degree of political power. But the way he did it was somewhat curious, to say the least.

“I have a good friend, who is a celibate, chaste gay man,” the lawyer said. “He believes that gay marriage should be banned. And would his interests be different from the rest of gays and lesbians? How would you analyze that?”

This was an odd question for a deposition (even one in this case), to say the least. While I could not figure out where he was going with this, I saw no reason to prevent Professor Segura from answering the question. “Objection to the form,” I said, and then turning to Professor Segura, “You can answer,” I said. He replied:

I would say [that] [t]here are individuals with lots of different positions on lots of different matters. When I am looking at what a group's interest is, I would look for the consensus viewpoint among the largest percentage of that population. In this case, I think your friend is very, very out of the mainstream of thinking of others who would self-identify as gay or lesbian.

At this point, I glanced at the BLAG lawyer and saw that his face had flushed deep red. I was not sure where he was going with this, but the exchange seemed to be striking a personal chord. Even though we were on opposing sides, I had no interest in embarrassing him or seeing him sweat, so I jumped in. “At some point I need to take a break,” I said. “Let me know when would be good for you.”

“Now is a good time to take a break,” the young lawyer croaked. I wish I could say that he regained his composure afterward, but unfortunately he never really did. It was one of the odder depositions I had ever experienced.

In defense of that young attorney, it was not easy being on the pro-DOMA side of the table, from either an evidentiary or a strategic standpoint. Even though President Obama had declined to defend the law, the DOJ was still technically a party to the case, so several of their attorneys came to the depositions. They would sit on BLAG's side of the table, but they always came over to us beforehand to shake hands and say things like, “Sorry about this. Obviously, we're with you.” During lunch breaks, the DOJ lawyers would often join us, while the BLAG attorneys would sit off by themselves.

At this point, I had enough confidence in our arguments that I was willing to give BLAG whatever they wanted, as long as it kept the process moving. I would say, “Listen, whatever documents you want, just ask us. We'll give you everything.” To my surprise, the BLAG lawyers did not ask for much. Although they could have asked to depose Edie, they chose not to. They probably believed it would look bad for them to interrogate an eighty-two-year-old widow in hopes of denigrating her forty-four-year-long relationship with the now deceased love of her life—a wise call on their part.

In the nuts and bolts of trial preparation, we were clearly ahead. Meanwhile, outside the conference rooms where our team was building her case, Edie was also starting to gain attention in the battle for public opinion.

OUT
MAGAZINE'S JANUARY
2011 profile of Edie was the first in what was to become an avalanche of coverage. That spring, a Boston-based lesbian publication called
GO
magazine included Edie in its “100 Women We Love” issue, and the ACLU announced that it would award its Roger Baldwin Medal of Liberty to Edie, who would be honored along with Constance McMillen, a young lesbian who had sued her Mississippi school district for barring her from attending the prom with a female date. Writer Jill Hamburg Coplan also contacted us, hoping to do an interview with Edie for an extensive profile in New York University's alumni magazine.

When I e-mailed Edie to ask if she wanted to do the interview, she responded with weariness. In a June 7 e-mail, she wrote, “I feel overdone and I don't have a lot to say publicly . . . I just don't have the energy. Right now, I'm stalling doctor's appointments until I finish the whole Pride month activities . . . Just too much.”

Edie's e-mail worried me because she usually relished her public appearances. She loved giving speeches, and she seemed to truly enjoy plunging headlong into crowds, sometimes with an enthusiasm that outstripped her sense of self-preservation. But she was in her eighties now, with the vast catalogue of minor ailments that age brings, not to mention her ongoing heart trouble. I was constantly worried about her health and safety, especially since her activities and profile increased the deeper we got into the case.

One thing I did to alleviate my anxieties in this regard was to begin asking some of the younger associates to serve as Edie's “body person.” Whenever Edie went anywhere related to the case, whether it was down the street or across the country, someone on our team would accompany her. At first, she did not seem to mind. In fact, she enjoyed being escorted by Paul, Weiss associates. But later, as time went on, Edie began to chafe at being “handled.” She would say, “I'm going to the bathroom,” and then disappear for half an hour. Alexia Koritz called this “giving us the slip,” and Edie became very good at it. “She didn't like the idea of someone taking care of her, really,” Alexia remembers. “Once, at Georgetown law school, we were getting her lunch and she just took off to see students and talk to them.”

Jaren Janghorbani remembers that one of the perennial battles that everyone fought with Edie was to prevent her from taking the subway. “You'd arrange for the black car, then pick her up, then take her to where you needed her to be, making sure everything was taken care of,” she says. “But Edie never wanted to do any of that. She just wanted to get on the subway. She didn't want to sit in traffic. She did not want to wait for the car. We all used to joke about it, like, ‘Robbie's going to kill us if we lose Edie on the subway.' The last thing we needed to do was get into trouble with Robbie for taking our beautiful old client onto the subway and losing track of her.” Edie was not trying to make life difficult for the associates; she just wanted to do her own thing—even if that thing meant heartburn for whoever was traveling with her.

On the other hand, traveling with Edie gave people on the team a chance to really bond with her. In June, when Edie flew to Orlando to accept the ACLU award, Julie Fink went with her. “This was not a normal Paul, Weiss assignment, to be a fifth-year associate who's flying to Florida to accompany your client to get an award,” Julie remembers. But although it was an unusual assignment, Julie found herself grateful for the time she spent with Edie.

On the flight down, they did math puzzles together and talked for hours. “It was great to talk with Edie about her relationships, and her and Thea, and how they met,” says Julie. “We just got to know each other very well. It's not a normal client-lawyer relationship, the relationship we all have with each other—whether it's Robbie and Edie, or me and Edie, or Jaren, or Alexia, or anyone else. The whole team was more like a family than anything else.”