WASHINGTON — After arguing 33 cases at the Supreme Court as the federal government’s top appellate lawyer, Donald Verrilli Jr. will be stepping down later this month. A major part of his legacy will be the role he played in helping to bring down the Defense of Marriage Act and bans on same-sex couples’ marriages across the country.
President Obama noted in his statement on Verrilli’s departure, “Thanks to his efforts … our children will now grow up in a country where everyone has the freedom to marry the person they love.”
A month after Obama nominated Verrilli to be solicitor general in 2011, then-Attorney General Eric Holder announced that he and Obama had concluded that DOMA’s ban on the federal government recognizing same-sex couples’ marriages should be held to be unconstitutional. Two years later, Verrilli was in front of the U.S. Supreme Court urging the justices to do just that. In 2015, he returned to the court to ask the justices to finish the job and declare state bans on same-sex couples’ marriages also to be unconstitutional.
He was on the winning side of both of those cases, with powerful arguments that the two lesbian lawyers who argued the cases on behalf of same-sex couples, widows, and widowers praised on Thursday in the wake of the news that Verrilli would be leaving his office.
“Once the U.S. stopped defending DOMA, it was amazing to see the power of the U.S. and its moral authority wielded on behalf of doing justice by LGBT people,” Mary Bonauto, the lawyer with Gay & Lesbian Advocates & Defenders who argued alongside Verrilli in April 2015 on behalf of those same-sex couples, told BuzzFeed News.
Roberta Kaplan, the lawyer who argued on behalf of Edith Windsor in her challenge to DOMA that went before the justices, praised Verrilli’s dedication to the cases.
“From the minute that it became a possibility that ours was going to be the case that was going to be taken up by the Supreme Court, it was absolutely clear to me that Don was not only the incredible lawyer and advocate that everyone knows he is, but that he had this deep-seated, personal commitment to doing justice in our case and on this issue,” Kaplan told BuzzFeed News on Thursday.
That was seen nowhere more clearly than in the brief filed on behalf of the United States in the 2015 marriage cases, known as Obergefell v. Hodges. The brief, filed on March 6, 2015, was an exceptional document signed by 16 attorneys at the Justice Department — led by Verrilli.
“The United States has a strong interest in the eradication of discrimination on the basis of sexual orientation,” the brief began in its notice of the “interest of the United States” — the reason for its filing of a brief in the case. Of the state bans, Verrilli and the lawyers, on behalf of the United States, wrote, “There is no adequate justification for such a discriminatory and injurious exercise of state power.”
As striking as the brief was, Bonauto said, “[E]ven more, Solicitor General Verrilli’s oral argument was incredibly powerful.”
After saying it was “simply untenable to suggest that [same-sex couples] can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals,” he concluded his argument bluntly: “Gay and lesbian people are equal. They deserve the equal protection of the laws, and they deserve it now. Thank you.”
The administration’s movement on the issue — specifically, to owning governmental discrimination in the DOMA case — was a key takeaway for Bonauto of the past five years.
“One of the things I particularly appreciated about the briefing was the U.S. owning its vast role in discriminating against gay people and acknowledging that these decades of discrimination and persecution were wrong,” she noted.
In the brief submitted by Verrilli and the Justice Department in United States v. Windsor, the government lawyers wrote, “Gay and lesbian people have suffered a significant history of discrimination in this country. No court to consider the question has concluded otherwise, and any other conclusion would be insupportable.” Noting the “regrettable history of discrimination against gay and lesbian people in a variety of contexts,” the brief specifically called out some of the federal government’s own prior discriminatory policies.
Those arguments, of course, could only be conceived of coming from the government once it stopped defending DOMA — a decision announced by then-Attorney General Eric Holder on February 23, 2011.
“Really, from the moment that that happened, I think we all felt — certainly, I and Edie felt — that they had our back,” Kaplan said. And while Verrilli didn’t take over as solicitor general until June of that year, he was nominated by Obama for the top spot in January of that year and already had been working in the White House counsel’s office.
A year later, in May 2012, Obama himself came out for marriage equality, at least as a policy preference. By the time Windsor’s case and the case challenging California’s Proposition 8 were before the justices the next year, the ground had shifted dramatically. The Obama administration was not yet arguing in favor of a nationwide constitutional right to marriage equality, however, and the briefing in the cases was more limited than some advocates would have liked.
“Obviously, their brief didn’t say everything it would say if I wrote their brief, but we didn’t expect it to do that — and I think no one could expect them to do that,” Kaplan said of the DOMA case brief from the administration.
Regardless of those minor strategic disagreements — disagreements that were had even among LGBT rights advocates — Kaplan held out strong praise for Verrilli and the lawyers on the case.
“They could not have been greater allies or more collaborative,” she said. “And, personally, with me, as someone arguing a case in the Supreme Court for the first time, which is not exactly a walk in the park, Don could not have been more supportive—or kinder, really.”
Bonauto echoed that, noting how Verrilli personally attended one of her moot arguments — when lawyers have other lawyers act as judges and drill them with tough questions in preparation for big cases like Obergefell.
“We had open lines of communication, starting with a meeting in February, right up to the time of argument,” Bonauto said.
“[W]hen the rubber hit the road, there was absolutely no doubt that they were there for us, that they were behind us,” Kaplan said of Verrilli and the Justice Department lawyers.
In his oral arguments in Obergefell on April 28, 2015, Verrilli invoked the human dignity of gay and lesbian couples to argue for their right to marry.
“The opportunity to marry is integral to human dignity,” Verrilli said. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.”
Two months later, Justice Anthony Kennedy would echo those comments in his opinion for the court. In the oft-cited conclusion to his opinion, he wrote of the same-sex couples before the court: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”