Then Comes Marriage

by Roberta Kaplan

  Chief Justice Marshall did not mince words about the reasons behind denying gay people the right to marriage, referring at one point to the “destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.” She wrote later in the opinion, “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason,” explaining that it “suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.” And, just as Justice Scalia had predicted, she also quoted from the Supreme Court’s recent decision in Lawrence.

  The Goodridge decision panicked a lot of political conservatives, including President George W. Bush. In his State of the Union address, delivered two months after the decision, he criticized “activist judges,” who were “redefining marriage by court order, without regard for the will of the people and their elected representatives.” President Bush then went a step further, implying that he might want there to be a constitutional amendment to stop gay people from marrying: “If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.”

  Conservatives in the chamber jumped to their feet, applauding wildly. One person who was not clapping, however, was Gavin Newsom. The recently elected thirty-six-year-old mayor of San Francisco, Newsom was at the State of the Union address as the guest of California Representative Nancy Pelosi, and as he listened to the president, he was getting annoyed. If gay people wanted to get married, why not let them get married? In fact, he thought, why not let them get married now? So, a few weeks after President Bush’s address, Mayor Newsom ordered the San Francisco County Clerk to start issuing marriage licenses to same-sex couples, who then proceeded to descend in droves upon San Francisco’s enormous Beaux-Arts City Hall building, the same place where the brave and groundbreaking gay rights hero Harvey Milk had been shot to death a quarter century earlier. Four thousand couples received marriage licenses before the California Supreme Court put the judicial kibosh on Mayor Newsom’s experiment a month later.

  When I heard what Gavin Newsom was doing, I thought it was incredible. In fact, I thought, That’s so California! No one here in New York would ever do something like that. Perhaps that is true of New York City officials. But two weeks after Mayor Newsom’s announcement, the twenty-six-year-old mayor of the Village of New Paltz announced that he, too, would allow gay couples to marry. Mayor Jason West performed twenty-five ceremonies before being arrested and charged with multiple misdemeanors of “solemnizing marriages without a license.” Mayor West’s efforts were also shut down by a court order, but after years of slowly ramping up, the fight for gay marriage was now truly on.

  A few weeks after officials shut down the New Paltz weddings, I received a call from an American Civil Liberties Union attorney named Matt Coles. Matt told me that the ACLU was planning to bring a lawsuit on behalf of couples who had signed up to get married in New Paltz but had not succeeded in doing so before the shutdown. He wanted to know if I would take on the case pro bono, not because I had any kind of reputation as a gay rights activist, but for far more pragmatic reasons. For one thing, Matt knew that bringing in a lawyer from Paul, Weiss, a firm known for its litigation prowess, meant gaining the resources of a big law firm, which would be a tremendous help to a nonprofit like the ACLU. But there was another reason as well.

  Matt also knew that I had clerked for Chief Judge Kaye and that, as a result, I knew most of the other judges on the Court of Appeals at that time and was familiar with the way that the Court of Appeals operates. Being able to make a personal connection was crucial in a case like this, because marriage equality was still a foreign concept to most people. Matt felt that having a familiar person, who happened to be gay, standing up and making the argument to the judges might help to shift the equation in our favor.

  The personal is political, as the saying goes. And that became abundantly true in my own life over the next two years as I prepared, filed, and argued the case for marriage equality in New York.

  THE FIRST TIME I asked Rachel if she wanted to get married, she responded with “Don’t be ridiculous.”

  We had been domestic partners for a couple of years at that point, and although I had never been the type to fantasize about walking down the aisle in a frilly white dress, I was surprised that I had recently begun to think about actually getting married. Rachel and I still could not marry anywhere in the United States because Massachusetts, the only state that permitted marriage for same-sex couples, then offered that right only to Massachusetts state residents. But we could get married in Canada, and in the first months of 2004, hundreds of gay American couples, including some friends of ours, made the trek north to do just that.

  Yet even though we could finally get legally married, we still had conflicted feelings about it. For one thing, it was not entirely clear at first that the state of New York would recognize Canadian marriages between gay couples. But it was absolutely clear that the U.S. federal government would not, because of DOMA. At the time, Rachel thought, What’s the point? As she explained:

  We would not have had the same rights as straight married couples so it did not feel like an act of equality—it felt like begging for acceptance as if we were trying to say we’re normal. It felt like an act of conformity, not an act of affirmation. And I did not feel like doing that. I wanted to have equal rights as a married lesbian couple. Getting married at that point felt like a pretense because it had no real substance. We wouldn’t get any additional rights, and no New York official would recognize our marriage as socially, legally, or even emotionally equivalent to the marriages of straight people.

  I understood how Rachel felt. I too was frustrated by the lack of real recognition and rights for gay Americans. But at the same time, I found myself increasingly wanting to get married, and to get married to Rachel. On top of that was the fact that we had started talking about having a child. Both of us had known from the very beginning of our relationship that we wanted children, and with both of us edging toward forty, it was time to get moving if we were truly serious.

  For a lesbian couple, having a baby is not a simple endeavor. Pretty much every available avenue—from using a sperm donor (anonymous or otherwise) to adopting—involves multiple steps and lots of legal documents, so we knew it might be a while before any baby showed up. As we started making plans for our long-term future as a family, I asked Rachel again, “So, would you like to get married?” Once again, she said no. But she was not calling the idea ridiculous anymore, because something surprising had happened as our gay friends started getting married.

  Rachel had been to a lot of straight weddings in her life, and even when she loved the bride and groom, she hated the weddings themselves, because they made her feel excluded. Once we started going to the weddings of our lesbian and gay friends, however, that changed. These weddings were full of wondrous joy. Everyone there, not just the brides or the grooms, was filled with gratitude, love, and awe. For the first time, Rachel felt not only included but actually engaged in these weddings. She began to understand that marriage was not simply a social construct or legal partnership with rights and benefits—something for a lifelong activist such as herself to fight for in Albany—but a personal promise that is shared with the community.

  Rachel also came to realize that there had been another, deeper reason behind her disdain for marriage, that there was also an element of self-hatred involved. For years, the idea of getting married had embarrassed her. It was not only that it felt like scrabbling for second-class status; on some level, it also felt unseemly and almost cartoonish. She had carried inside her the assumption that she did not deserve the right to marry. But now, witnessing these other profoundly happy celebrations, something shifted. She began to see how the power of marriage was more than merely sy
mbolic or legal—marriage meant something very fundamental about your commitment to another person, your integration of all of your family relationships, and most of all your very sense of self.

  When Rachel realized that getting married was a legitimate—even healthy—thing to do, she decided that it was time. One morning in the spring of 2005, she looked at me and said, “We’re having a child together. Let’s get married. I want us to publicly celebrate our commitment to each other. We don’t have many rights, but whatever rights we do have, I want us to have them together as parents.” That was good enough for me. A few weeks later, as if on cue, Rachel became pregnant.

  Suddenly, Rachel and I were transformed from domestic partners to engaged parents-to-be. We had a wedding to plan, baby books to read, and a nursery to design. I was ecstatic. Actually, we had two weddings to plan: one small, legal ceremony in Toronto, to be followed by a large Jewish wedding at Rachel’s parents’ home in Rhode Island.

  We flew to Toronto on Friday, September 9, 2005, and in the presence of Rachel’s family and two close friends, we took our vows in the modest wood-paneled office of the city clerk. Following Lavine family tradition, we went out afterward for a wedding feast at a Chinese restaurant, just as Rachel’s parents had done after their wedding, but that was the extent of the celebration; within twenty-four hours, we were back in New York. My parents did not make the trip, but I was not surprised or upset by that. I knew that they were planning to come to the Rhode Island ceremony the next week—which was already one more wedding of their daughter than I had ever expected them to attend.

  Not only did they attend, but they also invited several dozen of their friends and family from Cleveland. Yes, fourteen years after she’d banged her head against the wall, my mother embraced my Big Gay Wedding and happily took part in it. At our Jewish ceremony, the traditional Sheva Berakhot, or Seven Blessings, were recited, and we invited various family members and friends to read them during the ceremony. My parents read one, standing up in front of 150 guests on that beautiful fall day, to support us in our marriage.

  Our dear friend Rabbi Jan Uhrbach married us, which was itself a courageous act. Because she is a Conservative rabbi, Jan was technically not supposed to be officiating at weddings for same-sex couples at that time. (The Conservative movement did not change its position until later in 2006 after a close and contentious vote.) But Jan has always pursued the path she knows to be just, regardless of official disapprobation. She fought for openly gay and lesbian students to be admitted to the Jewish Theological Seminary, where she had studied and then taught, and argued for the Conservative movement to ordain openly LGBT rabbis.

  Having Jan perform our marriage ceremony was profoundly meaningful to Rachel and me, and we were deeply moved by her words. In particular, we both have remembered this important truth: Jan told us that we would learn that in any marriage, there will be wonderful parts and there will be terrible parts. She reminded us that one of the reasons we have a wedding is not only to publicly demonstrate our love for each other but to make the community integral to the promises we made that day by supporting us during the terrible times. Finally, Jan reminded us about what makes marriage different: When you marry, you have closed the door to the idea of leaving the relationship. You say to each other, I will stand with you for the rest of my life—no matter what.

  After our ceremony, Rachel and I—like Thea and Edie before us—felt the inexplicable difference between being married and not married. We had no idea how powerful it would be. It was not only the power of the public recognition of our love for each other, but also the feeling of dignity that the marriage ceremony had conferred upon our relationship. When Rachel and I married, I was in the thick of the New York marriage equality case, drafting our brief and thinking about the upcoming oral argument in Albany. Standing up in front of family and friends, holding the hands of three-months’-pregnant Rachel, I understood not only intellectually but also viscerally what I was really fighting for.

  But despite the feelings of dignity our marriage bestowed upon us, there was still no guarantee that the rest of the world would recognize it. We found that out the hard way, just after our son was born.

  ON APRIL 5, 2006, Rachel gave birth to our son Jacob at one of the most prestigious teaching hospitals in New York City. I was with her in the delivery room, watching as she underwent a successful cesarean section and our beautiful boy came into the world. I stood nearby while a nurse cleaned him up, counted his fingers and toes, and did the Apgar test to make sure he was healthy. The nurse then put the baby into my arms, and I carried him to Rachel so that she could see him for the first time. The whole experience was magical, and everyone in the delivery room could not have been nicer or more inclusive.

  As Rachel and I held Jacob and cooed over him in her hospital room, we could not get over how beautiful he was. He had an unusual golden-peachy tone to his skin, which to our besotted eyes made him even more gorgeous. “Just look at him!” said Rachel. “He’s the color of an apricot!” What we did not realize was that his warm and appealing skin tone was the result of infant jaundice, which can cause serious problems in a newborn. So, not long after his birth, Jacob was whisked to the neonatal intensive care unit (NICU) and put under bright blue-green lights for phototherapy treatment. Rachel was still bedridden, recovering from her C-section, so while Jacob was in treatment, I would go to the NICU multiple times a day to bring him to Rachel to nurse or to feed him myself with formula to help with the jaundice, wearing my hospital-coded bracelet to prove that I had the authority to do so.

  Both Jacob and Rachel received excellent care, but after five days, we wanted to be out of the hospital and back home. Jacob’s jaundice had finally dissipated, and while Rachel was not fully healed, we had had more than enough of hospital food, hospital beds, and stale hospital air. It was a Sunday morning, and as I went out to the car and fiddled again with the extra-padded baby seat that had taken me hours to install in my mother’s old car, which we had affectionately named “Black Beauty,” I could not wait to bring Jacob home.

  Rachel was resting in bed, still wearing her hospital gown because putting on clothes would irritate her sutures. I told her that I would go get Jacob from the NICU and bring him back to her room so that she could get dressed with my help and then we could all leave together. I walked down the hall to get Jacob, but when I picked him up and wrapped him in a blanket, the nurse on duty said, “Excuse me. Where do you think you’re going?”

  “We’re checking out,” I said. “We’re going home today.”

  “You cannot take that baby,” she said sharply. “Only the mother can take him.”

  I stared at the nurse, my face flushing with anger. For the past five days, I had been coming in and out of this very NICU to feed and care for my son. I had a hospital bracelet on my arm that had allowed me to be present from the birth onward, no matter where Jacob was. We had signed papers both with our own ob/gyn’s office and the hospital giving me full authority to care for and sign paperwork for our son. All the doctors and nurses—including this one—had seen me here, hardly sleeping or eating for the past five days as I fretted over his health. And now this nurse was treating me as if I were a stranger to my own son.

  “Listen,” I said. “My wife is still recovering from her C-section. She can barely walk, much less carry the baby to the car. Are you really going to make me get her out of her bed to do this?”

  “Hospital policy,” she said. “Only a parent can take a child out.”

  Her words felt like a slap in the face. Seething, I laid Jacob back down and stalked to Rachel’s room. “Honey,” I said. “You’re going to have to go get Jacob.”

  “Why can’t you do it?” she asked.

  “Because the nurse won’t let me take him,” I said. “She says only his mother can take him.”

  Rachel pulled herself out of the bed and hobbled down the hallway in her hospital gown. My normally feisty wife was too weak and exhausted to do more tha
n stand in the NICU, swaying back and forth as she signed the final paperwork, while the nurse gave us a fake smile. Afterward Rachel told me that she had also been too afraid to argue with the nurse. It was a Sunday morning, and if we fought with the nurse, she could retaliate by keeping our baby for another day and we would have very little recourse until Monday. It was the first time, Rachel said, that she had ever felt so vulnerable: now homophobia could hurt not just us but our defenseless child.

  Rachel picked up Jacob and walked out of the nursery with him, then immediately handed him to me. (The day before, when they had brought Jacob’s birth certificate to Rachel to sign, she had wanted to strike “Father” and list me in that space as co-mother. I had insisted that she leave it blank, and she did so unhappily. I was afraid that it might somehow be construed as tampering with an official document, delaying or even jeopardizing my adoption of Jacob.) The three of us staggered to the car, emotionally spent. Suddenly the world seemed a much scarier place.

  Despite our legal marriage in Canada, I was not considered a “presumptive parent” because I was gay. But if I had been Rachel’s husband, that nurse would have let me take Jacob home, no questions asked—especially after five days of caring for him in the NICU. I was fuming, but the experience at least offered me some clarity: we would never have true equality until we could legally marry in our home state and be treated like all other spouses and parents.

  Incredibly enough, just six weeks later, I would have the opportunity to try to make that happen. I was scheduled to stand in front of New York’s highest court on May 31, 2006, to present my argument for marriage equality. I always want to win every case, but especially after our debilitating experience at the hospital, I knew that I had to win this one.

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  BE BRAVE—DO

  THE RIGHT THING