Then Comes Marriage

by 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 Jacob—the 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

  Foreword

  Chapter 1. GAY PRIDE

  Chapter 2. PARENTS AND SECOND PARENTS

  Chapter 3. THE BEGINNINGS OF A NEW PERSPECTIVE

  Chapter 4. BE BRAVE—DO 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 9. SUPERIOR DANCE

  Chapter 10. PROFESSOR DIAMOND AND CAPTAIN UNDERPANTS

  Chapter 11. PERFECTLY PLEASED

  Chapter 12. BE OUR GUEST

  Chapter 13. TO DE-GAY OR NOT TO DE-GAY

  Chapter 14. ALREADY MARRIED, ALREADY GAY

  Chapter 15. SKIM MILK

  Chapter 16. EQUAL DIGNITY

  Epilogue

  Acknowledgments

  Index

  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.

  —Elizabeth Bishop, “It Is Marvellous to Wake Up Together”

  FOREWORD

  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 situation—legal or otherwise—without 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 true—this 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 Thea—the love of my life—and 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

  1

  GAY PRIDE

  In 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 knockout—a 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 emot
ions that I had not felt in years. I took a deep breath and told Edie, “I’ve actually been here before”—and 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 June—coincidentally, 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 then–Manhattan 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, pre–Will & Grace—a 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.

  When I walked into her apartment for our first session, just a few weeks after the incident with my mother, I was immediately struck by Thea’s commanding presence. She had a Hepburnesque high-cheekboned beauty and a regal bearing. She was also a quadriplegic. Thea had been diagnosed with a particularly virulent form of multiple sclerosis back in 1977, and by 1991 she was using a wheelchair and had only limited use of her hands. Yet even though her body was weak, she exuded strength, calm, and self-assurance, three qualities I had in very short supply at that time.

  In that first session, I told Thea about my deepest fears: that I would never have a normal life, a successful relationship, close ties with my family, or a family of my own. For years, my mother and I had talked almost every day, but since the episode in my apartment, we had not spoken at all. I missed her terribly, but there did not seem to be any way to bridge the enormous rift my coming out had created between us. And even though I had finally allowed myself to become involved with a woman, I had no expectation that my current relationship would last. It seemed self-evident that by admitting I was gay, I had scuttled any chance of ever being at peace with myself. I had never felt so alone, and I saw no way to make it better.

  And then Thea told me about her own long-term relationship with a brilliant mathematician named Edie. She and Edie had been together for twenty-five years by then, living together as a committed couple through thick and thin, in sickness and in health. Their relationship had started in the 1960s, pre-Stonewall, at a time when it was even more difficult to be gay. But they had persevered and continued to love each other through the decades, building a stable and joyful life together. It is unusual for a psychologist to talk so much about herself or her spouse during a therapy session, but Thea’s message to me was clear: it was possible to have a fulfilling relationship and a happy life, even if you happened to be a lesbian. She and Edie were the proof.

  Thea’s words gave me the comfort I desperately needed. I only saw her for one more session before moving to Boston, but I never forgot the sense of relief I felt after talking with her. At last I had heard from someone who knew and could prove that it was possible to create the kind of life I wanted, one that included a lifelong partner, strong family ties, and maybe even children of my own one day.

  Eighteen years later, when I walked into Edie and Thea’s apartment, I had created that life for myself. I had a fascinating job, a close relationship once again with my parents, a loving wife named Rachel, and our amazing son, Jacob—my life was full of fulfillment and purpose. I had everything that I had ever wanted, and Thea Spyer was the one who had first given me the strength to think it was possible.

  So that morning in 2009, as Edie Windsor described her situation to me—her forty-four-year relationship with Thea, the marriage they had celebrated when they were in their seventies, and the federal government’s refusal to acknowledge that relationship—all I could think was, I will do this for Thea. In Yiddish (which I had grown up with since my maternal grandmother, Belle, was fluent), the word bashert means, in its most basic sense, “it was meant to be.” In other words, it was as if God had dropped this case in my lap as a way to pay Thea back for helping me so much through some of my darkest days.

  GROWING UP IN Cleveland, Ohio, in the 1970s, I never thought that I would turn out to be gay. In fact, for a long time I did not even know what gay meant. But I did always know that I would become a lawyer.

  For one thing, from the moment I started talking, I apparently never stopped. When I was very young, my mother wrote letters to her brother, Benjie, who was then serving in the Peace Corps in India. Her descriptions of me tended to focus, with love and pride, on my loquaciousness and assertiveness. From July 1969, when I was three, she kvelled: “Robbie can recite the alphabet as well as give a rousing rendition of ‘Ducky Duddle.’ . . . She plays with five-year-old kids and all I ever hear her say is, ‘Now it’s my turn.’ ”

  August 1969: “Robbie, especially, enjoys being in the limelight. . . . She thinks she’s a real big shot and her mouth supports her.”

  July 1970: “Robbie is a real doll. You have to converse with her to appreciate [it]. . . . If she lets you get a word in, that is.”

  Grandma Belle noticed this too: “Robbie is a doll and bright as a whip. I asked h
er to please stop talking for fifteen minutes, and she answered, ‘I can’t, Grandma. I’m a big talker.’ And she surely is. On & on & on.”

  So I liked to talk. And I had heard that lawyers got to talk a lot as part of their jobs. With that in mind, at the mature age of twelve, I plotted out the rest of my life. We then lived in a suburb of Cleveland, but my mom had a subscription to New York magazine, and after flipping through the latest issue one day, I became a girl on a mission—I decided that I would move to New York City one day and become a lawyer.

  Actually, I was pretty logical about it. First, I decided that I would have to go to an Ivy League college, and then I would move on to law school in New York. Twelve-year-old kids—especially those who talk as much as I did—come up with a lot of silly ideas. But what is more than a little frightening is that this is exactly what I ended up doing. (The fact that Sandra Day O’Connor was appointed by President Reagan to be the first woman Supreme Court justice three years later when I was in high school only strengthened my resolve.)

  I am sure my parents did not expect me to follow through on my grand pronouncement, but they did encourage my brother, Peter, and me to think independently. My mother especially was very curious about the social issues of the day. Mom was involved in the women’s movement of the 1970s and belonged to a consciousness-raising group. She also wanted to expose us to as much art, music, and culture as she could. One day in 1981, she exposed me to something I’m sure neither of us expected.

  I was fourteen that spring, and Mom brought me along to a former synagogue in Cleveland Heights, where a group of women were installing the feminist artist Judy Chicago’s famous piece The Dinner Party. The installation is huge—a triangular banquet table measuring forty-eight feet long on each side, with dozens of place settings and hundreds of engraved floor tiles all representing different women throughout history. Whenever it was exhibited in a new venue, Chicago enlisted numerous local feminist volunteers to help set it up. My mom is not exactly a do-it-yourself type, but she was eager for us to participate in what was a great artistic happening.