Then Comes Marriage

by Roberta Kaplan

  The only thing I remember from that day is all the butch women wearing tool belts (literally). Everywhere I looked, there were women carrying hammers, pulling wrenches out of leather pouches, whipping out tape measures. I had never seen anything like these women. I was definitely exposed to something new that day, and it made me self-conscious, uncomfortably so.

  From that point on, I was aware that there was something different about me, something that needed to be hidden. By the time I was in high school, a lurking fear had taken root: What if I turn out to be gay? I could not bear that thought, so I just kept pushing it down as deep as it would go. Even though my parents never made negative comments about gay people, I knew that they would not be happy if I turned out to be a lesbian. So I tried to change and I tried to hide. I dated guys throughout high school. Ironically enough, my high school prom date, a guy named Aaron Belkin, would also turn out to be gay. Later, he became an activist for LGBT rights, one of the key players behind the 2010 repeal of the U.S. military’s Don’t Ask, Don’t Tell policy. There must have been something in that prom punch. Or maybe it is not surprising that two of the few gay kids in a graduating class of ninety students would be drawn to each other. Unconsciously, perhaps, we sensed each other’s secrets.

  Despite my fear of exposure, or maybe because of it, I was even more driven to succeed academically, to be part of the exciting world I had dreamed of since I was young. And just as I had planned so carefully at the age of twelve, I set off for Harvard in the fall of 1984. Upon arriving in Cambridge from the hinterlands of Cleveland, however, I initially found myself intimidated by the hordes of East Coast private-school girls—one of whom, a young woman from New York City, asked me in all innocence whether Woody Allen films ever made it to Cleveland movie theaters. My new classmates all seemed able to read Kant in the original German, planned someday to be president or secretary of state, and seemed not to have an iota of self-doubt. Navigating my new social life was difficult enough, even without the additional layers of confusion and anxiety about the possibility that I was gay.

  Every time that I had a crush on a girl, my fear about my mother’s reaction to my lesbianism intensified, even though I still did not have the nerve to actually go out on a date with a woman. If only I could have worried less about what others, even my mother, thought of me and more about learning who I was. If I had expended half the energy on dating women that I did on fearing what my mother might say about it, I would have had a much better time in college. But I was paralyzed not only by my own shame but also by a realistic assessment of the consequences that could result when a gay person was honest about who she was.

  There was one story going around campus that epitomized my fears. I knew a sophomore who had lived a seemingly charmed life, attending Manhattan’s best private schools while growing up in a wealthy, sophisticated New York family. Yet during her freshman year at Harvard, when she told her mother she was a lesbian, her mother (with whom she had been very close) responded by disowning her, cutting her off both emotionally and financially. Several people told me this story, and each time it intensified the sick feeling that I had in my stomach whenever I thought about telling my own mother. I also heard of other students who had been forced into so-called reparative therapy by their parents to “cure” them of their homosexuality. Most of those people had not chosen to come out, had not shoved their “lifestyle choice” into other people’s faces. They had hidden, like me, and still they had been found out. In other words, there were very real reasons to be afraid.

  In fact, my anxiety during college became so acute that I was not sure I would ever tell anyone I was gay. I wondered whether it might be possible just to marry a nice man and make do. But in my heart of hearts, I knew such a false marriage would not only be terribly unfair to my theoretical husband but also doomed to failure.

  I could not think my way into a solution, my first and favorite way of dealing with problems. And following my feelings to solve the issue was completely unacceptable. The trade-off of certain social jeopardy versus possible emotional fulfillment and love was simply not worth it for me. Instead, I chose my familiar habits of caution and repression. I just boxed up my feelings and hoped they would somehow disappear. They did not, of course. Instead, I fell in love with a classmate I’ll call “Kate.”

  Kate and I met freshman year, and there was an instant connection between us. We spent hours together—talking, studying, arguing politics, and figuring out the world’s woes. By the end of freshman year, we knew that we wanted to room together as sophomores. I was falling hard for Kate but could not admit it, even to myself. Instead, I would lie awake at night thinking, If only Kate were a guy, everything would be so much easier. That is as close to self-awareness as my mind could manage.

  Throughout my sophomore year, my feelings for Kate deepened as we lived and studied together, becoming almost inseparable. In the spring of my junior year, having declared Russian history and literature as my major, I spent a semester studying in Moscow. Being in the Soviet Union at that time was an incredible experience. Perestroika was just beginning and I had a front-row seat to history in the making. I was lucky enough to become friends with extraordinary members of the Russian intelligentsia—dissidents, artists, and Jewish refuseniks. It was heady stuff for a young woman who had grown up in the Cleveland suburbs.

  When I came back to the States, I could not wait to see Kate. I was so excited to reconnect with her, but when we met again she broke my heart. That first evening as we sat on the roof of her building, Kate told me she was dating someone. And that someone was a woman.

  I listened to Kate’s news and felt my heart shatter. And the worst part was I could not even let myself, much less Kate, understand that my heart was breaking. Yet even if I did not understand what I was feeling, I nonetheless felt it: wave after wave of grief, rage, disappointment, and frustration. It is hard to explain to people who have never had to hide a key element of themselves how corrosive it is. It is not simply that you do not allow others—your family, your friends, your neighbors—to truly know you. It is also that you give up on knowing yourself. And you give up on that which makes you most human: your capacity to give and accept love. From that hurt and corroded place in my soul, I only knew that I had come back from the Soviet Union to find Kate and that she had rejected me. Or at least that is how it felt to me at the time—not that she had found love, but rather that I had lost it.

  And, in that vein, I retaliated. The Cold War might have been thawing internationally but, on a personal level, I chose the nuclear option. On some level I must have believed that Kate and I had a tacit agreement. We would be each other’s primary person but we would pretend otherwise, dating boys neither of us took seriously. Kate had unilaterally violated that agreement. She had chosen someone else—someone female who was not me.

  Rather than acknowledge that truth, I attacked. All my years of anger and frustration became focused on one target: Kate. My feelings were not wrong, hers were. Sobbing and screaming, I told her that what she was doing was wrong, hurtful, and incredibly damaging. What I did not do was explain why I was so upset. I could not name or face the sickening jealousy that surged through me, because there was no reason for me to be jealous. So instead of honesty, I went for moral disapproval.

  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 brou
ght 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

  It 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 th
e 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.