Free Then Comes Marriage by Roberta Kaplan

case. Matt insisted that we open our brief with what is known as the substantive due process argument, based on the decision of the Supreme Court in the 1967 case Loving v . Virginia , a case defended by an interracial couple whose marriage was not recognized in their home state. For this argument to succeed, however, the court would have to conclude that the fundamental right to marry necessarily includes marriages between gay couples. I did not think we would succeed in convincing the court of this argument back then, since historically no one ever thought of marriage as an institution involving gay people. Instead, I believed the far better strategy would be to emphasize the equal protection argument, which posits that the Constitution does not allow the government to treat gay people any differently than straight people with respect to marriage. In my mind then and continuing today, this equal protection argument is, at its core, what LGBT rights cases are really all about—the simple proposition that gay Americans, like all Americans, have the constitutional right to equal protection under the law.
    Disagreements will arise in any case with multiple lawyers. But when I told Matt I thought he was making a mistake with his strategy, things got heated. We were on a conference call with several other lawyers, and when Matt continued to insist that we open the brief with the due process argument, I pushed back.
    â€œListen, Matt,” I said, “I’m telling you, I know how these judges think. I clerked on the New York Court of Appeals. This is really not the way to go.” The main reason Matt had brought me on to this case, after all, was because of my experience clerking on the court. Why not try to use what I knew from that experience to improve our chances?
    But Matt apparently had heard enough. He informed me that he was tired of hearing about my Court of Appeals experience and that I needed to just listen to him. I am sure the conversation went on, but I did not hear it because I had already hung up the phone. As a corporate litigator, having an adversary yell hardly fazed me, but I was not about to be publicly scolded by a colleague.
    Andrew Ehrlich, one of the Paul, Weiss associates (now my law partner) working with us on the case, was also on the conference call. He told me that after I hung up, there was a moment of silence on the line, and then Matt said, “Is Robbie going to call back in?”
    â€œI don’t think so,” Andrew replied.
    We ultimately ended up opening the brief with due process, as Matt had insisted. I worked hard on that brief—even reading stacks of paperwork and taking numerous calls from the ACLU during my honeymoon with Rachel in Venice. I suppose there is some irony to fighting so hard for marriage equality that you risk spoiling your own honeymoon.
    THE FIVE MARRIAGE equality cases made their way through New York’s lower courts, and by the beginning of 2006, four of them—including ours—had lost at the intermediate appellate court level, while the fifth had been tossed out. Now it was on to the highest level, the Court of Appeals, but which case would the judges choose to hear? There was frantic lobbying behind the scenes, but ultimately the court decided to roll all four cases into one, giving it the name of Lambda’s original case, Hernandez v. Robles . The lawyers on the various cases decided that four attorneys, including Lambda’s Susan Sommer and me, would present oral arguments, which were scheduled for May 31, 2006, just six weeks after Jacob was born.
    This was it: we were going to pull together to win marriage equality for all New Yorkers. I had taken part in some high-stakes cases for Paul, Weiss, so I was used to working under pressure, and for the most part I even enjoyed it. But this was different.
    Unlike in 1995, when I was deeply closeted during my clerkship with Judge Kaye, I was by now a reasonably high-profile