Then Comes Marriage (3 page)

Kate, in turn, was enraged. Her response to my litany of criticisms was to conclude, not unfairly, that I was homophobic. We had been planning to room together again for our senior year, but she told me flatly that there was no way she could live with a person like me. Our friendship was over. Back on campus, we had to switch around our rooming arrangements—and that's how the rumor spread throughout Cambridge that Robbie Kaplan was a neoconservative, reactionary homophobe. What else could explain the explosive reaction I had had to the news that my old friend Kate had a girlfriend?

So my final semesters at Harvard were not the best period of my life. Kate and I did not reconcile until two decades later when I ran into her in New York and brought her home to meet my wife and son. I graduated in 1988 never having revealed my secret. I still did not know if I could live as a lesbian, and I felt less inclined than ever to try to find out. My life plan was still on track, however: just as I had envisioned, I enrolled in law school at Columbia University in New York City.

I had a better time at Columbia, making great friends whom I remain close to even today. Yet I still could not admit that I was gay—not even to my gay friends. I was so tightly wound, so self-hating, that nothing happened until almost the end of my third year of law school—and even then only with the aid of copious amounts of alcohol. At long last, while drunk with a friend one night, I finally let myself kiss a girl. I knew immediately that it felt right. I was twenty-four years old and still petrified of coming out publicly, but after a decade of struggling with my feelings, my longing finally outweighed my fear. Once that happened, I knew that there was no going back.

I RELATE ALL
this now because, given the dramatic sea change in American attitudes toward LGBT people over the last few decades, it is easy to forget how difficult it was for gay people to come out in the 1980s and early 1990s. It is still very difficult for many people today, of course, especially those who live in more conservative parts of the country. But there is no doubt that times were different back then.

In 1991, the year my mother banged her head against the wall, the AIDS epidemic was raging through the gay community. NBA superstar Magic Johnson announced he was HIV-positive, and Freddie Mercury of the rock group Queen (who was hugely popular among my Russian friends during the time I spent in the Soviet Union) died of AIDS-related complications, having concealed that he had AIDS until the very end of his life. The antiretroviral drug treatment that would make AIDS survivable for many people was still several years away, making the disease essentially a death sentence, and as the number of cases worldwide hit ten million, much of the national discussion about gay people was tinged with ignorance and hysteria.

That same year, a poll conducted by the University of Chicago's National Opinion Research Center asked whether sexual relations between two adults of the same sex were always wrong, almost always wrong, wrong only sometimes, or not wrong at all. In 1973, the first time the poll was conducted, 73 percent of respondents answered that it was always wrong. By 1991, the year I received my JD from Columbia, that number had actually risen to 78 percent. In most of the United States, gay people had no rights or legal protections.

L.A. Law
—a program my roommates and I watched obsessively in our first year of law school—showed the first lesbian kiss ever broadcast on network television, to a mixed response: the show's ratings soared, but numerous advertisers pulled their ads. Very few high-profile people came out publicly that year, though some, like then–Pentagon spokesman Pete Williams (now the Supreme Court reporter for NBC), were outed by gay journalist Michelangelo Signorile out of a sense of growing impatience with closeted people in powerful positions. One could argue (and many did) that outing fellow gay men and lesbians was not simply exposing hypocrisy, it was being complicit in bigotry. But some LGBT activists, watching their friends and lovers die by the thousands, felt that desperate times called for desperate measures. At that time, the U.S. military could and did dishonorably discharge soldiers simply for being gay. As Signorile has since written, “Pete Williams was not personally responsible . . . for ruining the lives of over ten thousand discharged queer servicepeople; he was a spokesperson for an organization that was.”

On May 1, 1991, three same-sex couples in Hawaii attempted to change that. The couples—Ninia Baehr and Genora Dancel, Tammy Rodrigues and Antoinette Pregil, and Pat Lagon and Joseph Melillo—had applied for marriage licenses at the state's Department of Health the previous December. When the Department of Health turned them down, the couples decided to sue the state for the right to marry. Neither the American Civil Liberties Union nor Lambda Legal Defense and Education Fund would agree to represent the couples, despite the efforts of Evan Wolfson, then a staff attorney at Lambda Legal. The couples retained a local civil rights lawyer and litigated the case all the way to the Hawaii Supreme Court. The ripples from that case would eventually grow into a tidal wave, altering the course of gay rights in this country forever. Conservative fear over what was happening in Hawaii would lead not only to a backlash against President Bill Clinton's stated goal in 1993 of opening the military to gay men and lesbians but also to the passage of the Defense of Marriage Act in 1996.

At the same time that these determined couples were fighting for their legal rights, I was going back into the closet. In the late summer of 1991, I moved to Boston to clerk for United States District Court Judge Mark Wolf. When a young male attorney clerking for another judge asked me out, I said yes. He and I dated on and off, despite the fact that I was involved in a long-distance relationship with a woman in New York. I never told him the truth about my New York girlfriend, because I still could not admit to others what I could barely admit to myself. There is no doubt in my mind that the struggles in the LGBT rights movement of the 1990s, and the brave gay activists who fought those battles, laid the foundation for the battles and victories to follow, including marriage equality. While I wish now that I, too, could have been one of those courageous pioneers, I was definitely not ready.

When my clerkship ended, I went to work full-time at Paul, Weiss, Rifkind, Wharton & Garrison, the New York firm where I had been a summer associate during law school. At Paul, Weiss, I knew I would finally get to fulfill my dream of litigating high-profile, cutting-edge commercial cases. (Yes, that was actually my dream.) I settled into the usual routine of a first-year attorney in a big firm, working ninety hours a week, and I loved it. Pretty soon, my girlfriend and I moved in together—not that I told anyone at work, of course. I was content being a closeted New York corporate lawyer with a nineties haircut and an actual closet full of dark suits with padded shoulders.

And that is how things might have stayed if it were not for a particular New York judge, who had something different in mind for me.

2

PARENTS AND
SECOND PARENTS

I
t was about a year and a half into my time at Paul, Weiss that I met Judith Kaye. She had recently been named chief judge of the New York Court of Appeals, the state's equivalent of the U.S. Supreme Court, but instead of resting on the laurels of her new position, she immediately assigned herself the task of reforming New York's broken jury system. At that time, almost anyone with or without a brain could get out of jury service in New York merely by citing any one of nearly two dozen automatic exemptions, such as declaring that they were an embalmer or a Christian Science practitioner. Judge Kaye sought to fix that problem, among many others in the court system, so that New Yorkers could truly be tried by a jury of their peers.

Judge Kaye tapped Paul, Weiss partner Colleen McMahon to lead the Jury Project, and Colleen invited me to work with her on it as a junior associate. Colleen had become the first woman litigation partner at Paul, Weiss in 1984, and she and I had bonded almost immediately from the minute I came to the firm. One afternoon in 1993, we walked into Judge Kaye's chambers for our first meeting. Apparently Judge Kaye liked me, because at the end of the meeting, she pulled Colleen aside and told her that she wanted me to come clerk for her. Colleen did not tell me this until months later when the Jury Project's work was completed. By then, I had already finished one clerkship with Judge Wolf in Boston, so I was not exactly eager for another. On top of that, several partners at Paul, Weiss advised me against taking the clerkship, saying it was time for me to get down to the business of litigating cases. But not only was Judith Kaye the highest-ranking judge in New York State and the first woman to achieve that position, I also really liked her. So when she asked me to begin clerking for her after the Jury Project's report came out, I enthusiastically said yes.

Most of the cases I worked on in the year and a half I spent clerking for Judge Kaye were interesting though uneventful. But near the end of my clerkship, the court got a case that would change the lives of gay couples and their families in New York—including, ultimately, my own.

The case was about adoption. Under New York law at that time, any person married to a biological parent could easily adopt his or her spouse's child. If you weren't married, however, you could adopt your partner's child only if your partner's own parental rights were terminated. So for unmarried couples, either straight or gay, there was no way to create a two-parent family through adoption short of marriage. And because marriage equality was a distant dream in 1994, this essentially meant that gay and lesbian partners could never legally become coparents to their children.

Two cases challenging this policy had made their way through the New York courts:
Matter of Jacob
had been brought by a straight couple, and
Matter of Dana
by a lesbian couple. I was dismayed when the court decided to hear the two cases together because the stakes were clearly so different. It was one thing to tell straight couples that they must marry before adopting each other's kids, since at least they had that option. But it was quite another thing to have the same requirement for gay or lesbian couples since it was impossible for them to get married. Unlike the straight couple, if the lesbian couple were to lose the case, their family would be at risk, with no legal protections, and there would be absolutely nothing they could do about it.

For the first time, I found myself taking part in a case that could affect me as a lesbian. I did not have kids and did not know if I ever would, but I desperately wanted the seven-member court to rule in favor of the couples. I knew Judge Kaye would vote for the single parent's ability to adopt, but I was not sure whether she knew just how personal my interest in this decision was. I was still so deeply closeted that I had told only a few people I worked with that I had a girlfriend, and Judge Kaye was definitely not one of them.

Even so, in the time I had been clerking for the judge, she and I had grown very close. We often drove to and from Albany together, talking the whole way while taking occasional detours to the Woodbury Common discount shopping center, where she would inevitably urge me to buy more colorful clothes. We worked well together and had similar opinions on most legal issues, including those having to do with the rights of gay people.

In fact, four years earlier—the same year that my mother banged her head against the wall—Judge Kaye had bravely cast the sole dissenting vote in favor of a lesbian parent in a case before the New York State Court of Appeals. In
Matter of Alison D.
, a lesbian sued for visitation after she and her partner, the biological mother of their son, split up. Six judges voted to deny Alison D. visitation rights, while Judge Kaye, in her dissent, noted that “as many as eight to ten million children are born into families with a gay or lesbian parent” and observed that the decision “falls hardest on the children of those relationships, limiting their opportunity to maintain bonds that may be crucial to their development.” She did not see gay and lesbian parents as being any different from straight parents, which was a pretty radical view in 1991.

Working with Judge Kaye was a wonderful experience professionally, but it was also meaningful to me personally. She was about my mother's age and she really understood and valued what drove me. She also had a daughter about my age who already had children. One afternoon, I joked to her, “You know, I think my mother wishes I were more like your daughter.” The judge just laughed and said, “Oh, Robbie, your mother could never say such a thing about you.”

Even though Judge Kaye once tried to fix me up with a guy she knew in the mayor's office, I still had this odd suspicion that she knew I was gay. Which just goes to show, as a closeted lesbian, how incredibly sensitive I was to this whole issue at that time. As I later learned, Judge Kaye had no idea I was gay, and even if she had, I sincerely doubt she would have cared. But that is the problem with having a secret—you are always afraid it will be exposed. Colleen McMahon, who had become a close friend, told me, “You're not giving Judith enough credit.” Looking back, I can see that, as usual, Colleen was right.

At the time, though, Judge Kaye was both a maternal figure to me and a professional role model. I could not bear the idea that I might once again experience the same rejection I had gone through with my own mother. It might have crushed me.

ORAL ARGUMENTS IN
the
Jacob
and
Dana
case took place on June 5, 1995. The next day the seven judges voted and the split was 4–3, with Judge Kaye on the losing side.

Typically, after a vote is taken, the court hands down its opinion within a few weeks—certainly by the end of the session. As Judge Kaye's clerk, my task was to help her write her dissent, but I refused to accept that the decision was going against the couples—and their children. I knew it was wrong, as a matter of both constitutional and family law, where the standard is the best interest of the child. So I asked the judge if she could arrange to have the case held over the summer to the following session, which is almost never done. Judge Kaye asked me why, since it seemed highly unlikely that we could convince one of the other four judges to switch sides. “It's not about getting the fourth vote,” I told her. “We just need time to write a better dissent.”