Then Comes Marriage (28 page)

When she heard the news, Pam was crestfallen. This was a historic case, and she had been excited to have the chance to argue it. Pam had been preparing for weeks and had even invited her eighty-one-year-old aunt, who lived in New York City, to come watch her at the first moot court. But now there was no reason for her aunt to do so because Pam wouldn't be arguing anyway. “I thought, there goes my moment in the sun,” she remembers with whimsy in her voice.

And then, as a pure coincidence, Pam ran into a group of her friends who also happened to be at the Charlotte airport at that time. They were fellow civil rights lawyers flying home from Selma, Alabama, where they had been taking part in an anniversary commemoration of Martin Luther King's historic march from Selma to Montgomery. Seeing and talking to her friends not only boosted Pam's spirits but clarified her perspective. “I thought, I'm a civil rights lawyer,” she said later. “This is a long struggle, and whether I get to argue this case or not is not the biggest deal in the world.” This is classic Pam, always keeping priorities clear and thinking of the greater good no matter what.

By the time she arrived in New York for the moot court, Pam was her usual centered and supportive self—which was fortunate for me, since the first moot was not exactly a resounding success.

BECAUSE I HAD
never argued a Supreme Court case before, I was constantly being bombarded with advice. People were literally coming out of the woodwork, wanting to help, convinced I would screw up, or simply wanting a stake in a piece of history. That is to be expected in any Supreme Court case, especially one as important as
Windsor
. My inexperience at the Supreme Court obviously made me nervous, but I hoped that the moot court sessions would help me to get a solid grip on which arguments were working and which were not in my oral argument.

In a moot court, a lawyer faces a panel of “judges” (usually other lawyers) to practice his or her argument. The panel asks questions, often mimicking the tone or style of the real judges or justices who will be hearing the case, while other people are sometimes invited to watch, take notes, and offer constructive criticism or suggestions on how to improve. That is the ideal scenario, anyway. But our first moot was, to put it mildly, not ideal.

The moot took place in a large room at NYU's law school, and when I walked in I was astonished by how many people were there. At one end of the room there was a long table behind which the judges would sit, and in front of that table, at the very center of the room, there was a lectern for me to use while I argued. I was literally encircled by dozens of people sitting in rows of seats around the room.

Waiting to begin, I obviously felt enormous pressure. I was painfully aware that a number of accomplished Supreme Court advocates—some of whom were there that day—were wondering to themselves,
Why in the world is Robbie Kaplan arguing this case?
I had come to learn and work on my strategy, but I also felt that I had something to prove. What I had hoped would be a tightly focused exercise felt, from the very beginning, more like a lopsided contest, like one between gladiators in the Roman Coliseum. (I probably should have begun with the traditional saying used by the gladiators before they began to fight that I remembered from my high school Latin class:
Morituri te salutamus
, or “We who are about to die salute you.”)

“The nature of moots,” James Esseks explained, “is that you get a lot of very opinionated people telling you with great conviction that you have to do ‘x' and you can't do ‘y,' and all the advice is different. You have to sort through it and figure out what you're going to do. And while some points do come through consistently, a whole lot doesn't.” In other words, from the moment I started, I would have to assess which of the many conflicting pieces of advice to follow and which to discard.

I stood in front of the moot panel and began my oral argument. “My client Edith Windsor met her late spouse Thea Spyer in 1963. They were fortunate enough to be able to spend the last two years of Dr. Spyer's life together as a married couple. When her spouse died—”

“But not in New York,” one panelist interjected.

“Excuse me?” To be honest, I really hadn't expected to be interrupted in the first three seconds of my argument. First of all, that's not what is typically done in moot courts, since you want to have a chance to work on your actual opening. Second, although the Supreme Court justices are notorious for interrupting lawyers, even they were not likely to cut someone off before she had even completed her third sentence. We then veered into a ten-minute detour about whether Edie and Thea's marriage was recognized under New York law (it clearly was), and then I was able to continue my opening.

Things didn't get much better from there, because it soon became clear that I was not the only one in the room who felt the need to prove something that day. “People were asking these very esoteric questions,” recalls Julie Fink. “I don't think they were questions that anybody really expected.”

“It was an odd panel to have for Robbie's first moot,” Pam remembers. “Lots of academics. And academics often have their own theories of what cases are actually about, so they're not usually the most helpful people to moot in front of.”

I parried a lot of questions, but unfortunately not too many that were likely to come up in front of the actual justices. I tried to get through the main points of our argument but kept getting bombarded with questions from left field, right field, and from completely out of the ballpark. The moot was truly all over the map, with the moot court judges at times seeming far more concerned with having their own theories heard than helping me to prepare for my oral argument.

After a lengthy back-and-forth with the panelists, my oral argument, such as it was, ended. We then moved on to the debriefing session, where the panelists and observers could offer their critiques and suggestions. That's when things really started to veer off course.

At least one extended discussion was based on one panelist's theory that DOMA was really analogous to a hypothetical restriction on who could ship cargo on freight trains. The panelist suggested that even though the issue was obviously not addressed in our briefs, we should argue that marriage is like a public utility that everyone should have equal access to and that the government must therefore offer it on equal terms to everyone. This was a pretty far-out theory, one that was unlikely to resonate with anyone but the most staunch libertarians, but I had to respond to it anyway. Others suggested similarly odd strategies, in comments that James Esseks later noted were “even less connected to the real concerns the Supreme Court might have than the questioning had been.” And several people suggested that we take the focus off of Edie, minimizing the facts of the case and concentrating only on prior case law.

My frustration—and that of the whole
Windsor
team—was growing. All around the room, the crowd of observers were shifting uncomfortably in their seats, aware of the disconnect between our strategy and the panelists' questions and comments. Fortunately for me, given my job as a litigator who argues for a living, I have developed pretty thick skin over the years. But a comment from one lawyer really sent our team over the edge:

You shouldn't get into facts . . . your low-hanging fruit is all the things that are irrational. Make it about an irrational federal statute. De-gay the case. De-gay this case.

De-gay the case?
This seemed absurd. From the very beginning, our strategy had been to make the whole case about Edie and Thea—about their dignity as a couple, their unequal treatment, and the overt discrimination of DOMA. There didn't seem to be any legitimate way to “de-gay the case,” and even if there was, I had no interest in doing so.

But the lawyer was not finished. Several others on the panel had already suggested that we model our argument on
City of Cleburne v. Cleburne Living Center
, a case decided by the Supreme Court in 1985. In that case, the city of Cleburne, Texas, had denied a permit for the Cleburne Living Center (CLC) to build a group home for mentally disabled people. Lawyers for the CLC argued that the justices should apply heightened scrutiny in the case, because mentally disabled people have historically suffered from discrimination. In the majority opinion, written by Justice Byron White, the Court found in favor of CLC, but on rational basis, rather than heightened scrutiny.

Cleburne
was clearly relevant to our case, since it was one of the relatively few times that the Court had found legislation to be unconstitutional while applying rational basis review, rather than heightened scrutiny. And because the Court was not expected to apply heightened scrutiny in
Windsor,
we needed to be prepared to win on rational basis review as well.

While I had no objection to discussing how best to strategically employ
Cleburne
, the strategy that was being recommended was, in my opinion, misguided since it downplayed the importance of Justice Kennedy's gay rights decisions in
Romer
and
Lawrence
. Here was the attorney's suggestion:

Cleburne
,
Cleburne
,
Cleburne
. This is a
Cleburne
case . . .
Cleburne
reverse-engineers the animus. It never says people hated the mentally retarded people in the neighborhood . . . Cars on the street? These people drive less than frat boys. Noise? These people party less than frat boys . . .
Cleburne
just walks back all the reasons and says why they don't possibly connect to the statute. So it's a disconnect.
Cleburne
,
Cleburne
,
Cleburne
, disconnect, disconnect, disconnect . . .

At this point Edie, who was sitting in the room watching the scene, was starting to get confused and upset. Not only was she seeing the lawyer she trusted get picked apart, she was hearing a bunch of strangers insist rather vehemently that we should argue her case as if it were one about mentally disabled people. Over the past two and a half years, as far as Edie was concerned, the litigation process had been incredibly smooth, with victories in both lower courts and little to no dissension among our team. Now, all of a sudden, we were in a large room with a lot of people Edie didn't know telling us that we were going about everything completely wrong.

It seemed clear to me that many if not most of the people in that room did not really believe that we would win at the Supreme Court. Even members of our own team were worried. “I think the low point was the first moot,” Julie Fink remembers, “because I was concerned about us. I realized that we had a huge responsibility here, and it was possible it might not work out well.” The whole exercise was demoralizing, and to top it off, a lawyer then addressed Edie directly as if Edie were an overwrought diva, flatly informing her that the case ultimately was not really about her and that Edie needed to accept that. It was one thing to pick on me—that was par for the course and what the moot court was all about. But picking on Edie was, in my view, completely out of bounds. This part of the discussion only served to further unsettle Edie—and now to make me angry.

When the moot was finally over after an exhausting two and a half hours, I approached Alan Morrison, who was on the panel and who had always offered helpful feedback. “What do you think?” I asked. I wanted to hear what he had to say before giving him my own opinion. Alan, to my enormous relief, said exactly what I had been thinking. “You can't ‘de-gay' this case,” he said. “That's what it's about. You have to embrace it. You got a huge amount of conflicting advice here today, and now you have to go back and think about what
you
want to do, not worry about the fact that you can't make everybody happy.” This was great advice, and I planned to follow it. But first I had to take care of Edie, who was upset and bewildered by what had just occurred.

Pam, James, and I walked Edie back to her apartment—just a few blocks across Washington Square Park from NYU—and tried to calm her down. At every stage of the case, Edie had always expressed the utmost confidence in our team and our strategy, so the fact that the moot had left her feeling shaken was significant. “Listen, Edie,” I said. “Our strategy is the right one. People have their opinions, but we're not changing. This moot was about a whole bunch of other things that actually have nothing to do with winning the case.” Edie nodded, but she still seemed doubtful.

“The first moot is always pretty rocky,” Pam told her. “But don't worry. It's still early, and we'll have many more before the oral argument.”

It took about an hour, but the three of us were finally able to reassure Edie. And while I believed everything we were telling her, deep down I had also been thrown. Friends as well as colleagues had been there at the moot along with dozens of law students, and I had seen the look on their faces. As we sat with Edie in her living room, all I could think was,
I've really got a lot of work to do
. Our next moot was scheduled to take place at Stanford University one week later, and there were several more scheduled after that, so I feared that if I did not do well at Stanford, there might truly be cause for concern.

There was, however, one big upside to that disastrous first moot: it ended up bonding our whole team. When we examined what had happened, there was remarkable unanimity about what advice we agreed with and what advice we thought was misguided. Our discussion of that moot crystallized our collective thinking about how to argue the case, which was absolutely crucial given how little time we had left—in just three weeks I would face the Supreme Court justices. Most of all, it required us to reexamine and reaffirm our bedrock principle: “It's all about Edie, stupid.”