Challenging the Defense of Marriage Act

Dechert associate Victoria Fitzpatrick went to Washington to work on a groundbreaking gay rights case.

You’d be amazed how cold it gets in Washington D.C. in March. Especially at 5am and particularly if, like me, you are queuing outside the Supreme Court, desperately hoping to get a ticket to see the oral arguments for what looks set to be one of the most significant civil rights cases of the last 30 years. I should say I was queuing at 5am the day before the oral arguments, some 29 hours before the hearing started. Some people had been there much longer and had practically set up home on the steps of the Court.

Why was I there? As an associate in Dechert’s international dispute resolution group, I was lucky enough to be part of a team of lawyers who filed two amicus briefs with the Supreme Court this March as part of the Windsor v US litigation. The Windsor case challenged the constitutionality of section 3 of the Defense of Marriage Act (“DOMA”). DOMA is a federal statute that defines marriage solely as a union between a man and a woman for the purposes of distributing federal benefits to married couples. The effect of this statute is to deny access to over 1,100 federal benefits to tens of thousands of same-sex couples who are legally married in one of the 12 states (and counting) that permit same-sex marriage. These benefits range from the right to be informed of a partner’s death in active service to the right to file a joint tax return, benefits for which married opposite sex couples are automatically eligible.

Dechert was incredibly proud to represent Judge John K. Olson, a sitting federal judge, as amicus curiae (“friend of the court”) in this case. Judge Olson married his husband, Steven Fender, in Massachusetts in 2010. He later named Steven as his spouse on an application to join the Judicial Survivors’ Annuity System (a federal pension scheme), but was denied access on the basis that this scheme was only for the benefit of an opposite sex surviving spouse. The reason? Section 3 of DOMA.

The role of an amicus is to provide the Court with arguments or information that will assist the Justices in their decision, one way or another, but which is distinct from the arguments submitted by the main parties. A Dechert team from eight offices worked together for three months across three time zones to draft briefs on the merits and on jurisdictional issues. Dechert contributed uniquely to the arguments before the Court on the merits by analogising past examples of widespread social and legal discrimination against minority groups (African Americans, women, illegitimate children, and aliens) with the present day treatment of gay people. We argued that DOMA is a deliberately discriminatory statute and the latest in a long history of legislative instruments that unfairly discriminated against minority groups, all of which have rightly been condemned to the history books to be remembered as embarrassing historical errors.

The scramble to attend the oral arguments on March 26 was like nothing I’ve ever seen. People queued for days in the snow and one Hollywood producer was rumoured to have paid $6,000 for someone to stand in line for him for a week! I flew in from London and knew I was going to have to be resourceful. In the end I turned up at 5 am the day before the hearing and made good friends with a time-rich-cash-poor gentleman who, for a small fee, was willing to keep my spot in line. This was sheer good luck. The day of the hearing was incredible, I stood in line, and watched extreme Christian groups clash with a man dressed as the devil in a pink leotard. His Lady Gaga tunes more than drowned out their hurtful preaching. As if this wasn’t enough fun, at 6am I was interviewed on the local news. The near frostbite I endured was worth it. I will never forget the experience of watching the sun rise from behind the Court that morning, and the conversations I had with people from all over the world, from all walks of life, who had turned up to wait, to watch, to protest, to sing, to love, to disapprove, to dance, to feel part of it all. A career highlight? I think so.

Judgment in the Windsor v US case arrived in June, with the Court striking down the statute as unconstitutional on equal protection grounds. Tens of thousands of LGBT Americans celebrated the victory. One thing seems certain: the fight for equality will continue.

Victoria Fitzpatrick is an associate at Dechert.