They screamed. They cried. Their pride and elation poured out when word came in June that the U.S. Supreme Court had struck down bans across the land on same-sex marriage.
Attorney Roberta Kaplan was in a hotel room in San Francisco, connected by conference call to colleagues in New York and to fetching and vivacious 86-year-old Edie Windsor, sitting at home. They had made their own legal history exactly two years earlier — in United States v. Windsor — arguing successfully for the Supreme Court to overturn the law that denied federal benefits to same-sex spouses.
In many respects, their case laid the groundwork for 2015’s Obergefell v. Hodges. “The way it’s written, it could be called Windsor II in a lot of ways,” says Kaplan, who led the Windsor legal team.
“I remember feeling, just, pretty good to say the least. Pretty proud.”
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Kaplan chronicles United States v. Windsor in a new book, “Then Comes Marriage,” co-written with Lisa Dickey (W.W. Norton & Co.). It is the current selection of the FYI Book Club.
Edith Windsor was the face of that case. She had wed longtime partner Thea Spyer in Canada — a marriage recognized by their home state of New York — and tried to claim the federal estate tax exemption for surviving spouses after Spyer died in February 2009. But the Defense of Marriage Act wouldn’t allow it; it excluded same-sex partners from the federal definition of “spouse.”
Windsor was hit with $363,053 in federal estate taxes (plus another $275,528 in New York state taxes) and sued.
Kaplan had more than a professional stake in the case. She had experienced the halting acceptance that she was gay, the early furtiveness and finally the difficulty in coming out in the 1980s and early ’90s. Kaplan, too, was in a same-sex marriage and wanted her then-7-year-old son with spouse Rachel Lavine to know a more enlightened, accommodating world.
She weaves her story, and that of Edie Windsor and Thea Spyer, into “Then Comes Marriage.” Kaplan recently discussed the book and the notable legal case behind it (excerpts are edited for length):
Q: What do you hope readers take away from the book?
A: My original conception was “how we did it.” Then I realized that I couldn’t tell that story, I couldn’t explain adequately the incredible ways in which the world has changed so rapidly, without explaining my own personal story. I wouldn’t be honest, and it wouldn’t convey what I wanted to convey.
Q: Was that difficult?
A: The personal part was hard, especially the early years. I had forgotten what it felt like when I was in college and law school to be a gay person and how the world was then, how different it was and the degree of homophobia that was so common and accepted. To go back to that and remember those emotions, and then write them in what I hope was an honest way, was hard to do.
Q: Was it therapeutic?
A: I think so. Yeah. It was hard. I edited that language many, many, many times. But I think it was kind of cathartic. It certainly was cheaper than therapy.
Q: Edie Windsor has been compared with Rosa Parks. Is that apt?
A: Yes and no. While I think there are obvious similarities between African-American civil rights and gay civil rights, people have to be careful in making the comparison. As far as I know, no gay civil rights lawyer had to worry like Thurgood Marshall did about being dragged off and lynched. Similarly, Rosa Parks had to live with the fear of violence and lynchings all the time. And Edie Windsor, thank God, has not. The world is very different.
On the other hand, in terms of their significance and their symbolism within each story, they’re certainly comparable that way. They’re two incredibly brave women.
Q: Do you stay in touch with Edie? What’s her life like now?
A: She’s coming over for Thanksgiving. We talk almost every other day.
Her life is incredible. We should all be 86 like Edie Windsor. She has beyond a full calendar. Frankly, I think she accepts way too many invitations. She goes out all the time. She can’t leave her apartment without being approached by people who want her photograph or selfies or an autograph. Thank God, she loves it.
Q: You write about the need to separate the job at hand — representing Edie — from the importance of the case to you personally. How difficult was that?
A: It’s so a part of what I’ve been trained to do, and at this point kind of the way my brain is wired, that most of the time it wasn’t that hard. I just went into regular lawyer mode, which is: Every decision that we make, we make based on “will it help Edie get her money back?”
Q: But in terms of insight and fueling passion, wasn’t there value in being gay yourself? The book details your final exchange with Chief Justice John Roberts. You strayed from vetted arguments and spoke from your gut in challenging his suggestion that gay people had enough new political might to instigate their own change.
A: Rather than being a detriment to the case, I think it became a huge asset at that point during the argument. And I certainly don’t think it was lost on any of the justices that I was the first gay person to stand in front of them in over two days and more than four hours of argument (including the court’s earlier hearing on Hollingsworth v. Perry, which challenged California’s ban on same-sex marriage).
Q: Are there particular words in the decision that you cling to?
A: The word “dignity.” I think Justice (Anthony) Kennedy uses it 11 times; he kept saying it over and over and over again. It’s very interesting. He just gave a speech (in late October) in which he suggests the concept of dignity may get extended to solitary confinement — it may unconstitutionally offend the dignity of prisoners — and perhaps even capital punishment. I think he is developing this jurisprudence of dignity, which potentially could be very, very powerful. It already is very powerful.
Q: Does the Obergefell decision come without Windsor? Or at least come as soon?
A: I think, clearly, that allowing the Supreme Court to decide Windsor, to establish the concept of the dignity of gay couples and realize they weren’t forcing any states to marry gay couples — it was only about states where gay couples could already marry — made them much more comfortable and much more ready to do what they did in 2015.
Equally if not more importantly, at the time Windsor was decided there were only 12 states that allowed gays to marry. By the time Obergefell was decided, 37 did, and that difference was almost entirely due to Windsor. I don’t think the Supreme Court would have been ready to do marriage equality nationwide until at least a majority of states were already allowing gay couples to marry. Thirty-seven was a great number.
Q: What’s the next roadblock to clear?
A: The one thing we know from Windsor and Obergefell is that the government can’t discriminate against gay people because they’re gay. That’s been taken care of. But the big open question is: Can a private employer do that? Or can a store say, “We’re not going to serve you an ice cream cone, honey, because you have two dads?” I think, ultimately, it’s not going to be much of an issue because those two ideas are un-American at this point. But there’s certainly more work to be done, both legislatively and in the courts, to clarify that.
Q: You’ve won in the Supreme Court. Has life changed?
A: There’s a story I tell in the book about my son thinking that a movie is old-fashioned because it was made before men could marry men. I mean, that’s the coolest way my life has changed. My son, I think, doesn’t even realize that the world used to be different, and frankly I don’t think that I want him to realize that it used to be different.
Steve Wieberg, a former reporter for USA Today, is a writer and editor for the Kansas City Public Library.
Join the discussion
The Kansas City Star partners with the Kansas City Public Library to present a “book of the moment” selection every six to eight weeks. We invite the community to read along.
Members of FYI and the library staff chose “Then Comes Marriage” by Roberta Kaplan.
Kaite Mediatore Stover, the library’s director of reader’s services, will lead a discussion of the book at 5:30 p.m. Jan. 13 in the Special Collections department of UMKC’s Miller Nichols Library, 800 E. 51st St. Participants will also view part of the collection from the Gay and Lesbian Archive of Mid America. If you would like to attend, email Stover at firstname.lastname@example.org.
From Chapter 15 of “Then Comes Marriage” by Roberta Kaplan and Lisa Dickey, published by W.W. Norton & Co. Here, Kaplan is completing arguments before the U.S. Supreme Court in United States v. Windsor. She takes exception to a suggestion by Chief Justice John Roberts that that gay people in America have marshaled enough political power to protect themselves from discrimination through the political process.
“Throughout our entire case, I had succeeded in keeping my personal feelings at bay. As a lawyer, my duty is always to my client, and for four years, I had kept my focus relentlessly on Edie Windsor and the facts of her case. But DOMA (Defense of Marriage Act) wasn’t just a law that I wanted to see struck down as an attorney. It was a law that affected me, my wife, and my son. I wanted to win this case for Edie, but I wanted DOMA struck down for my own family, too.
“As the only gay lawyer who had argued in either Windsor or Perry (the California same-sex marriage case), I was acutely aware that I needed to keep on an even keel, even more so than the other lawyers. I could not appear to be emotionally invested, even though I was. But … a quarter century of my own injured feelings came rushing to the surface. Being told by a nurse that I couldn’t take (newborn adopted son) Jacob home. Having a social worker ask what we would tell Jacob when he ‘grieves the loss of the father.’ And I was one of the lucky ones. Many more gay people — too many to count (including Edie) — had suffered far worse indignities in their sometimes too-short lives, and many more would continue to do so, no matter how much political power Chief Justice Roberts believed we had.
“My voice had cracked slightly with emotion as I answered, but as the chief justice began to respond, I quickly regained my composure.”