Then Comes Marriage
Read Then Comes Marriage Online
Authors: Roberta Kaplan
THEN COMES
MARRIAGE
United States v. Windsor
and
the Defeat of DOMA
ROBERTA KAPLAN
with Lisa Dickey
Foreword by Edie Windsor
For Rachel and Jacobâthe family I never dreamed I would ever have
and for whom I am grateful every single minute of every single day.
Neither
United States v. Windsor
nor this book would have happened
without you.
CONTENTS
Chapter 2.
PARENTS AND SECOND PARENTS
Chapter 3.
THE BEGINNINGS OF A NEW PERSPECTIVE
Chapter 4.
BE BRAVEâDO THE RIGHT THING
Chapter 5.
A VERY LONG ENGAGEMENT
Chapter 6.
THE REST WAS JUST DANCING
Chapter 7.
IT'S ALL ABOUT EDIE, STUPID
Chapter 8.
SOMETIMES, PRAYER WORKS
Chapter 10.
PROFESSOR DIAMOND AND CAPTAIN UNDERPANTS
Chapter 13.
TO DE-GAY OR NOT TO DE-GAY
Chapter 14.
ALREADY MARRIED, ALREADY GAY
The world might change to something quite different,
As the air changes or the lightning comes without our blinking,
Change as our kisses are changing without our thinking.
â
Elizabeth Bishop
, “It Is Marvellous to Wake Up Together”
When I first met Robbie Kaplan in 2009, she asked me to go over to the computer in the living room of my apartment and watch a video clip of her arguing a case three years earlier seeking marriage equality in the state of New York. Then Robbie explained to me that she had lost the case. That impressed the hell out of me. It obviously takes enormous guts to show a potential client a video clip of you arguing a case that you had lost.
But Robbie was right, of course. I was so impressed with the way that she argued that case in 2006. And I was even more impressed that she had the courage and integrity to show me that clip. In fact, that was what convinced me on the spot that I wanted her to represent me in my legal challenge to the constitutionality of section three of the so-called “Defense” of Marriage Act a few months after the death of my spouse, Thea Spyer.
After that, everything having to do with the case of
Windsor v. United States
(which later became
United States v. Windsor
) was only a plus for me. I appeared at Paul, Weiss and was introduced to what turned out to be an incredibly multitalented, smart, and energetic group of lawyers. James Esseks of the ACLU and Pam Karlan of Stanford were welcome and indispensable additions to the Windsor team. I remember thinking to myself,
“Wow! There is someone on this team who can answer every single question that I have.”
As time went on, I never encountered a situationâlegal or otherwiseâwithout feeling completely supported and validated by Robbie and the other members of her team. And we all really liked and respected each other a lot. In retrospect, I cannot imagine that I could have endured that three and a half years, nor that I could have succeeded with any other lawyers. We were a great match. It was a long, joyous, and exhilarating ride.
The truth is, I love this book. It's a wonderful explanation of what happened every step of the way, including every decision we made, every roadblock we faced, and every joke we laughed at. It also explains complicated legal arguments in a way that all of us nonlawyers can understand and learn from. And even though I obviously know what is going to happen in the end, it's a real page-turner to boot.
It gives me such joy and gratitude to know that the case I brought with Robbie has proven to be such a powerful precedent that dozens of courts (fifty-eight and counting) throughout our nation have relied on it to grant equal rights to LGBT people under the law, including the right to marry. But even more importantly, I hope that our case, our story, and this book will help to serve as a strategic roadmap of how to litigate and win an LGBT civil rights case going forward, a strategy that other advocates, activists, and clients will follow in the years ahead.
Because I was the youngest in my family, justice has always mattered a lot to me. What this book shows is that what I learned in my elementary school civics class was absolutely trueâthis is a great country, we do have a Constitution that should be cherished, and abstract phrases like “due process” and “equal protection” continue to have real meaning and power as interpreted by the courts.
It is often said that as gay people, we get to choose our own families. Those words could not be truer for me. Not a single day goes by when I don't think about my parents or about Theaâthe love of my lifeâand while no one could ever replace them in my heart, I have also fallen in love with Robbie's family, most especially her son, Jacob. As a result, I have spent a lot of “family time,” including holiday meals and celebrations, with the whole Robbie crew. Robbie; her wife, Rachel; and Jacob will always be a part of my family.
Edie Windsor, Plaintiff
New York, New York
May 2015
THEN COMES
MARRIAGE
I
n the spring of 2009, I knew three things about Edith Windsor. First, she was a math geek, an apparent computer genius who had worked for many years as a software programmer at IBM. Second, she had been hit with a huge estate tax bill after her spouse, Thea Spyer, had died. And third, she was hard of hearing.
That third fact was the reason I walked four blocks from my West Village apartment to hers on the morning of April 30. Edie and I had never met, but we had spoken the day before about whether I would be willing to help her file a lawsuit to get those estate taxes back. She was having trouble hearing me over the phone, so I said, “Why don't I just come over and see you tomorrow? We can talk about it in person.”
The next morning, I walked to her building, one of Manhattan's massive 1950s white-brick complexes just north of Washington Square Park. The doorman sent me up, and as I knocked, I was expecting to be greeted by a nerdy elderly lesbian in a flannel shirt and comfortable shoes. But when Edie opened the door, I stared at her, dumbfounded. She was a knockoutâa slender, impeccably dressed woman with a blond bob, a string of pearls, and perfectly manicured nails. It took me a moment to compose myself, but after Edie's “Come in,” I followed her into the apartment.
And then I was dumbfounded all over again. The apartment looked exactly as I remembered it from the summer of 1991, the first time I had been there.
I was twenty-four then, just starting to come out as a lesbian, and for the first time in my life, I was seriously depressed and anxious. I had asked around for therapist recommendations, and one name kept popping up: Thea Spyer. I didn't know Thea from a hole in the wall, but she had a reputation as a talented and caring psychologist who understood “gay issues,” so I called her to set up an appointment. I saw Thea for only two sessions, right in that very apartment, before moving to Boston later that summer.
Eighteen years had passed since then. But when I walked into Edie's living room, it was exactly the same as I remembered it from those two therapy sessions so long ago. And as I looked at the chair where Thea had sat while I, sitting across from her, had poured out my fears, my heart began to pound.
“I'm sorry,” I told Edie. “I need a minute.” I had known, of course, when I was walking over that this was the same apartment where I had met with Thea, but I did not expect to feel it so viscerally; walking into that room felt like returning to the scene of an accident, and I experienced emotions that I had not felt in years. I took a deep breath and told Edie, “I've actually been here before”âand then I told her why.
In the summer of 1991, I had just graduated from law school at Columbia University and was living in a tiny one-room studio apartment at 80th and Amsterdam while studying for the bar exam. My parents had flown in for a visit from my hometown of Cleveland on the last weekend in Juneâcoincidentally, the weekend of New York's Gay Pride Parade (as it was then called). On that Sunday morning, as my parents made their way through Manhattan to my apartment, they found themselves having to navigate around the parade.
My mother happened to see thenâManhattan Borough President Ruth Messinger, the mother of one of my college roommates, riding in the parade in support of gay rights. By the time she and my father got to my apartment, she was in quite a state about the whole thing.
“I can't believe Ruth Messinger would actually join in a gay parade,” she said.
“Okay, Mom,” I said. “Enough.” For about a thousand reasons, this was not a conversation I wanted to have with her.
My mother ignored me and kept going, criticizing the very idea of a “pride” parade: “It's just horrible seeing all these mobs of gay people marching openly in the streets.”
“Mom, enough already,” I told her. “I don't want to hear this.”
But she continued, “Well, I'm just saying, I think it's horrible.” And that was about all that I could take.
“Stop!” I snapped. “Just stop it! Enough already!” Now she turned to look at me, her eyes narrowing.
“
Why
do you want me to stop?” she asked. “What's the matter? Are you
gay
or something?”
I stared at her, shaking. I had started seeing my first girlfriend only a few months earlier, but I had known for much longer that I was a lesbian, so this was a moment I had been dreading for years. I was trembling, scared of how my parents might react, but now I was angry as well.
“Yes,” I told her. “I'm gay.”
My mother did not say a word. She simply walked to the edge of the room and started banging her head against the wall.
Bang.
Bang.
Bang
.
I watched for a moment in complete shock, and then somehow, in one of the saner moments of my life, I managed to turn and walk out of my own apartment. My mother's reaction was so over the top that there was no way to engage with her. So I left and went to a friend's place a few blocks away to try to calm down. I had known that my mom would not be happy about this news, but her reaction was even worse than I had expected. And it only served to confirm my fears about what my life would be like now that I had finally admitted out loud that I was gay.
For a newly out gay person in 1991, there was little reason to expect that a normal life was possible. This was pre-Ellen, preâ
Will & Grace
âa time when most gay characters in Hollywood movies tended to be sad, lonely, or dying, or all of the above. The AIDS epidemic was raging, the antigay Religious Right was gathering steam, and laws still on the books in many states made sexual relationships between gay people a criminal offense.
Ever since high school, I had suspected that I might be gay, but I couldn't really confront the issue until my third year of law school, in part because I was terrified of the very reaction that my mother had just had. The consequences seemed clear: Being gay meant losing the love and support of your family. It meant never being able to get married or to start a family of your own. It meant living a covert life on the fringes of society, a life where none of the promises of a happy, secure adulthood applied. I didn't feel empowerment or relief when I came out, I felt depression and despair. And my mother's reaction sent me into a downward spiral.
And then I went to see Thea Spyer.
