Stanford, Calif., October 29, 2013 – An eager crowd recently gathered at Stanford to hear firsthand from the stars of this year’s historic same-sex marriage cases. The plaintiffs and attorneys in the Defense of Marriage (DOMA) and Proposition 8 (Prop 8) cases shared their unique perspectives on the implications of victory, as well as the difficulties they faced on the path to the United States Supreme Court.
The discussion was one of two plenary sessions at the Stanford Symposium on Marriage Equality, which was hosted by Stanford Law School and the Institute on the Politics of Inequality, Race and Ethnicity at Stanford (InsPIRES). Symposium organizers included Jane Schacter, William Nelson Cromwell Professor of Law at Stanford Law School, and Gary Segura, Professor of Political Science at Stanford and Director of InsPIRES. Segura, who served as an expert witness during the Prop 8 trial, moderated the discussion.
The panel featured a megawatt lineup of speakers, beginning with Edith Windsor, plaintiff in United States v. Windsor, the case that struck down DOMA, and Sandy Stier, Kris Perry, Paul Katami, and Jeff Zarillo, plaintiffs in Hollingsworth v. Perry, the case that rocked the foundations of Prop 8. The lawyers included Pamela Karlan, Kenneth and Harle Montgomery Professor of Law at Stanford Law School, who was co-counsel for Windsor, and Theane Evangelis of Gibson, Dunn and Crutcher and Jeremy Goldman of Boies, Schiller, and Flexner, who both assisted in the Prop 8 case. Rounding out the speakers was Chad Griffin, Executive Director of Human Rights Campaign, who was heavily involved in initiating the Prop 8 challenge in California.
The speakers’ admiration of and fondness for each other was on immediate display. “This is a family,” Griffin proudly stated.
Enormous tax bill proved that government viewed same-sex spouses as strangers
Windsor was the only speaker who participated by video, as she was in New York when the plenary occurred. After Segura introduced everyone on stage, he teased the audience about welcoming one more speaker. When Windsor appeared on a massive overhead screen, looking cheerful and impeccably clad, the audience erupted in cheers. With many of the speakers praising Windsor as “a hero,” the discussion first delved into her story.
Windsor married her same-sex partner, Thea Spyer, in Canada in 2007. But because DOMA defined marriage as a union between one man and one woman, the federal government did not recognize the marriage even though New York State did. Consequently, Windsor did not qualify for an estate tax exemption when Spyer died and left Windsor as her sole heir. After paying more than $360,000 in federal estate tax penalties, Windsor decided to challenge DOMA in the courts.
“I felt sick and anguished and deeply upset … that [the government] was treating my spouse like she was a stranger,” Windsor proclaimed.
When Windsor was asked why she challenged DOMA, she made clear to the audience that her hefty tax bill was far less important than what it represented to her—the fundamental unfairness of her and Spyer’s inability to enjoy a legal marriage in their own country.
Windsor immersed herself in the case: “I read all the briefs, took it very seriously, but I loved the whole process.”
But she was also deeply frightened that instead of addressing the constitutionality of DOMA, the courts would simply question whether DOMA was fairly applied in her particular circumstances. This kind of “as-applied” challenge, Windsor explained, was insufficient because it would, at most, bring relief only to her.
“The money didn’t matter. What mattered was the rest of the gay community,” Windsor asserted.
Windsor also described her anxiety upon hearing that famed attorney Paul Clement, a former United States Solicitor General, would argue the pro-DOMA side on behalf of the U.S House of Representatives. But, she explained, three specific developments alleviated her concerns. First, Karlan joined Windsor’s efforts and provided “astute advice at every step of the way.” Second, the moot court sessions with Roberta Kaplan, the attorney who argued Windsor’s case at the U.S. Supreme Court, assured Windsor that her advocates were in command of the legal arguments. Lastly, Windsor reviewed her opponents’ statements and found them underwhelming.
But there was something else that placated Windsor. “I had this thing since I was a little kid—I felt passionate about the Constitution,” Windsor said, adding that she believed that the Constitution would vindicate her.
Surprise trial propels same-sex couples into spotlight
This year’s other monumental marriage equality case was Hollingsworth v. Perry and its treatment of Prop 8, the California state constitutional amendment that limited legal marriage to a union between one man and one woman. After a trial on the legal substance of Prop 8, federal district court Chief Judge Vaughn Walker, JD ’70, ruled that the law was indeed unconstitutional. Supporters of the law pursued the case to the U.S. Supreme Court, but the Court declined to rule on the merits of Prop 8 and instead handled Perry on procedural grounds. The result of the Court’s approach was the reinstatement of Judge Walker’s ruling that Prop 8 is unconstitutional.
According to the speakers, the genesis of Perry was a clandestine matter. Griffin secretly made contact with Ted Olson, a former U.S. Solicitor General, through a mutual acquaintance. Olson agreed to join David Boies, another esteemed attorney and Olson’s opponent in Bush v. Gore, in challenging Prop 8. Griffin called Olson’s decision “a gamechanger.”
“His involvement in this case changed the landscape … and lifted the partisan veil,” Griffin said.
The next steps were finding suitable plaintiffs and recruiting additional legal help to challenge Proposition 8.
Griffin had known Stier and Perry through their shared interest in early childhood development. Believing that the couple, who have raised four sons, would be ideal plaintiffs, Griffin invited them to join “sort of a small lawsuit,” Perry quipped.
The couple thought they would play a largely administrative role—“just our names on paper,” Stier noted. But she was “dumbfounded” when Judge Walker ordered a full trial, rather than simply issuing an injunction, which was a “turning point” that no one expected.
The plaintiffs went from “watching what was happening to really becoming a part of what was happening,” Stier said. She added that preparing for the trial was difficult because even though a trial would be powerful, she was concerned about the public exposure and scrutiny.
Perry also felt the pressure. She had “gotten so good at not being mad” about Prop 8 that it was hard for her to prepare for the trial and fully confront the harm of marriage inequality. Perry indicated that she had to “shed an awful lot of thick skin.”
In dealing with the pressure, Perry learned “how important it was to search for the truth in ourselves and our relationships.” Even though she always felt part of a team, “there’s a moment on the stand when you’re alone … and you have your truth.”
Katami and Zarillo, meanwhile, became “accidental activists” when they filmed a highly-viewed video response to a pro-Prop 8 piece. They agreed to join the Prop 8 challenge when asked by Griffin and his colleagues, but not simply to secure their own rights.
“We were just regular people who told a story … but it wasn’t profoundly ours, it was profoundly everyone’s,” Katami said. “It was about us, as a whole, being treated right.”
Katami added that the lawsuit forced him and Zarillo to realize that they had never discussed what marriage meant to them because it was never a possibility for them. The Prop 8 challenge “not only transformed us, but transformed our ideas” about the law, Katami added.
Zarillo did confess to “a moment of doubt” when people branded him and Katami as troublemakers who would set back the entire gay rights movement if they lost. Zarillo’s response was simple: “You know what? At least we’re doing something … [and] we’re not going to tolerate being treated as second-class citizens.”
Zarillo said that the best part of the process was “the constant winning,” but also pointed to “watershed moments” of change as the entire country began to reconsider the question of marriage equality.
“What we were doing was resonating,” Zarillo stated.
Attorneys pursue bold strategy in quiet fashion
As the organizers of the challenge to Prop 8 were finalizing plaintiffs, they also continued reaching out to attorneys, albeit surreptitiously. Evangelis was enlisted to begin drafting a complaint, but told the audience that her work was still “very top secret, even within the firm.”
Even more noteworthy to Evangelis was the instruction to prepare the complaint for review in federal court. As Evangelis explained, proponents of marriage equality had generally preferred to pursue legal challenges in state courts for strategic reasons.
The decision to go to federal court “was incredibly risky” because failure would result in serious consequences, according to Evangelis. To help mitigate some of the jeopardy, Evangelis and her colleagues decided to frame the case around two central concepts: liberty and equality.
The gambit worked. Not only did Judge Walker surprise everyone by ordering a trial, but the supporters of Prop 8 fell far short of making their case. Goldman cited the interesting contrast between the plaintiffs’ “moving testimony” and “sparkling roster of experts” versus their opponents’ “grossly inadequate” presentation.
Goldman theorized that the pro-Prop 8 case failed “because there was nothing behind it, nothing to support it.” Even their experts were uninspiring, Goldman suggested: “There was no one they put forward that had done any rigorous scientific work.”
SLS scholar talks doctrine, importance of timing
For her part, Karlan relished working on Windsor’s case and believes that “there were no good arguments on the other side.” Karlan led a team of students from SLS’ Supreme Court Litigation Clinic who labored tirelessly on the case and attended oral argument at the U.S. Supreme Court.
Karlan also illuminated how both Windsor and Perry involved serious issues of standing, a legal doctrine that determines who can argue a particular case in the courts. Noting that the U.S. Supreme Court does not “generally decide abstract questions of law,” but rather decides disputes between actual parties who disagree, Karlan reminded the audience that the government defendants in Windsor and Perry retreated from their initial defense of DOMA and Prop 8, respectively. Specifically, the federal government chose to stop defending DOMA and the State of California chose to stop defending Prop 8. Consequently, standing played an important role in both cases.
As to standing in the DOMA case, Windsor benefited from “the fortunate fact” that the federal government had already collected her estate tax penalty. So even if the federal government agreed that DOMA was unconstitutional, it still had Windsor’s money, which meant that Windsor’s case was still a live controversy, Karlan explained.
In Perry, however, the U.S. Supreme Court used the standing issue to “unravel the case” in a manner that it could tolerate. The Court “didn’t want to decide the issue” on its merits, Karlan argued, because the Court was not ready yet.
Karlan also posited that “timing was everything” in both cases. In Perry, for example, Judge Walker’s decision to order a trial slowed down the case and let the courts and the country catch up to the serious questions being contemplated.
“The velocity of change outside the courts affected what happened inside the courts,” Karlan asserted.
Plaintiffs reflect on significance of victory, taking next steps
Looking forward, the plaintiffs each described their thoughts on victory now that they have a few months’ perspective. Windsor encouraged young people to keep up the fight for equality. “I think we keep pushing, I think we don’t take it for granted,” she declared.
Zarillo encouraged the audience to remember that “doing something is something anyone can do.” Katami, meanwhile, shared his emotional reaction to walking by marriage ceremonies at City Hall after the U.S. Supreme Court decided Perry. “It’s about allowing people to have happiness,” he said.
Perry compared the fight for equal rights to her own work in early childhood development. “[It’s] so much about potential and unlocking and unleashing everyone’s potential.”
And while all the plaintiffs conveyed their feelings of gratitude and privilege to have been involved in these cases, Stier crystallized those feelings in a single sentence: “I felt like we did our job in terms of making the world … a better place for future generations.”
Video highlights from the symposium are available at http://www.youtube.com/stanfordlawschool.
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