However, if the major gay rights organizations had had their way, we never would have filed Edie’s lawsuit in the first place. On May 23, 2009, three weeks after I met Edie, the powerhouse legal team of David Boies and Theodore Olson filed a federal lawsuit in California seeking to overturn Proposition 8, the ballot proposition and state constitutional amendment that outlawed marriage between people of the same sex in that state. Passed by voters in the November 2008 election, Prop 8 was obviously a terrible setback. If we could not win a referendum on marriage equality in California, what hope did we have of winning in less progressive states? Yet although Prop 8’s passage was an appalling disappointment, this new lawsuit felt to many like a silver lining. Having Ted Olson—a staunch Republican, former solicitor general, and lawyer for George W. Bush in the disputed 2000 presidential election—take on the cause of marriage equality appeared to be a huge step forward for the cause.
Once the Prop 8 suit was filed, however, the major gay rights organizations were not at all happy about it and tried to stop anyone else from trying anything similar. On May 27, 2009, a seven-page press release went out, cosigned by GLAD, Lambda, HRC, the ACLU, and others, urging people to “make change, not lawsuits.” The press release offered this as the “bottom line”: “If you’re ready and it’s right for you, get married. But don’t go suing right away. Most lawsuits will likely set us all back. There are other ways to fight that are more likely to win.”
At one of our early meetings, I showed Edie this press release. “If we file your case,” I told her, “we’ll probably get a lot of backlash like this.” She had to be prepared for criticism, not only from antigay forces but from those on our side, too. Even the Prop 8 team was facing criticism from those who were afraid they were bringing their fight to the courts too soon. What if Olson and Boies fought their case all the way to the United States Supreme Court and lost? A loss could set the marriage equality movement and LGBT rights back many years. Some people even speculated (absurdly, in my view) that Olson, a lifelong conservative Republican, had joined the team for exactly that purpose—as a kind of Machiavellian move to thwart the advancement of gay rights.
As a result, I decided it was best for now to keep our work with Edie tightly under wraps. It would be months before we could file a lawsuit anyway, since we had to go through the time-consuming process of requesting a refund of Edie’s tax payments from the IRS, getting it denied, filing an appeal, and waiting for that appeal to be processed and denied again. We had reams of paperwork to take care of and an entire strategy to figure out. So I quietly began assembling a team at Paul, Weiss to work on Edie’s case.
Very early on, I called a colleague who had worked on the 2006 New York marriage case with me, Andrew Ehrlich. Soon after, tax attorney Colin Kelly and trust and estates attorney Rachel Harris joined the case, too. Later, I also invited Jaren Janghorbani, an associate (now partner) who had clerked for Justice Stephen Breyer at the Supreme Court, because even at this early juncture, I knew there was at least some chance that Edie’s case could go that far. I did not know Jaren personally, but when I called her, she quickly signed on. Right from the start, people were taken with Edie’s story and excited to help; Edie’s situation seemed to resonate with everyone—gay and straight, young and old, male and female.
I also invited Julie Fink, a sharp young attorney who had just returned to the firm after finishing a yearlong clerkship. I knew that Julie would be a great addition to our team, but what I did not know was that she had recently become involved with a woman, making this case far more resonant for her than I realized.
In fact, not only did I give Julie a chance to work on her first gay-rights case, I also inadvertently outed her to much of the firm in the process. Here’s how Julie remembers it:
While I was clerking, I started dating women. Some people knew, some people did not. When I came back to Paul, Weiss, I remember getting a form from the Human Resources department that asked about diversity. One of the questions was, “Are you openly gay?” I hadn’t really told anybody yet, so I wrote “no.”
This was in the very beginning of Edie’s case, when we had a really small team. The New York legislature had just started talking about gay marriage again, and Robbie would email all of the gay lawyers, the LGBT group at the firm, with updates on what was happening. And because I had marked “no” on that form, I was not included on the list of openly gay attorneys. So, all those emails would go to “[email protected]” . . . with a “cc” to “[email protected].”
I finally called the HR person and said, “This is obviously ridiculous. Just put me on the list—it will save Robbie a keystroke, and I’ll actually be less out than I am right now.”
WITH OUR CORE group in place, we began working on strategy. From the outset, I insisted that we keep the focus on one thing and one thing only: getting Edie’s tax payments back. This was a lawsuit in federal court under the U.S. Constitution, not a political campaign to win marriage equality nationwide; it was a case about one elderly widow who had suffered a terrible indignity, and our effort to right that wrong.
As I would with any client, I explained the process in detail to Edie. We would file her case at the U.S. District Court for the Southern District of New York, which would randomly assign one of its judges to the case. Once that judge reached a decision, the losing side would almost certainly appeal, since Edie’s case involved determining the constitutionality of a federal statute.
That appeal would then be heard by the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut, and Vermont. The Second Circuit would appoint a panel of three judges to make a decision. Once that decision was reached, and appeals filed, the next step would be the Supreme Court, although we had no real expectation that we would ever make it that far. Other lawyers had already filed DOMA challenges, so the chances were slim that the Supreme Court would ultimately choose to hear our case.
In the fight for civil rights, cases can be generated at least two ways. An individual can file a lawsuit, on his or her own initiative, which happens to address a particular civil rights issue. Alternatively, an organization can decide that it wants to challenge a particular law, then look for plaintiffs who have suffered injury and therefore fit the mold for that case. Many judges dislike the latter type of cases, feeling that they are in some sense artificial since they have been constructed by the civil rights lawyers themselves. Second Circuit Chief Judge Dennis Jacobs, who could conceivably end up hearing Edie’s case once we made it to that level, had made his feelings on this issue plain in a speech he gave at the Federalist Society:
My point, in a nutshell, is that much of what we call legal work for the public interest is essentially self-serving: Lawyers use public interest litigation to promote their own agendas, social and political—and (on a wider plane) to promote the power and the role of the legal profession itself . . . [I]t has been reported that some firms in New York City pay money to public-interest groups for the opportunity of litigating the cases that public-interest groups conceive on behalf of the clients they recruit.
There are citizens in every profession, craft and walk of life who are active in promoting their own political views and agendas. When they do this, it is understood that they are advancing their own views and interests. But when lawyers do it, through litigation, it is said to be work for the public interest. . . . Well, sometimes yes, and sometimes no.
So rule number one was: this case was about Edie Windsor and her tax payment—nothing more and nothing less. We would represent her as we would represent any Paul, Weiss client, with a strict focus on the particulars of her case rather than any broader political or ideological concerns. To be honest, this was not a hard decision for me to make since such a client-focused approach was the only one I had been taught and grown up with at Paul, Weiss. There was another obvious advantage to this approach as well. In addition to the risk that a couple or couples might split up, another problem with past gay rights cases
with multiple couples as plaintiffs is that, all too often, the facts tended to fade into the background. Thus, rather than looking like a case about real people and their lives, these cases tended to look, unfortunately, more like a debate between pundits on FOX News and MSNBC. By focusing on Edie and only on Edie, we made sure that everyone saw our case as about the essential human dignity of one grieving widow.
Rule number two was: no talking about sex.
In many ways, Edie was the perfect plaintiff. She had been part of a stable, long-term couple, and because Thea was no longer alive, there was no chance they might break up during the case. Edie was articulate, polite, and conservative in appearance, with her pearls, perfectly bobbed hair, and manicured nails. Even though she was a lesbian, as an older woman, she was less threatening to social conservatives than, for example, a young, sexually active gay man. Edie is a beautiful woman, but upon seeing her for the first time, your mind would not necessarily turn to sex. And I wanted to keep it that way.
I had seen Edie speak in public a couple of times after showings of Greta and Susan’s documentary, and she was not shy about describing the two maxims that she and Thea lived by: “Don’t postpone joy” and “Keep it hot.” As innocuous as that latter phrase might seem, I wanted the judges (and potentially Supreme Court justices) to see Edie and Thea’s relationship for its qualities of commitment and love, not for anything having remotely to do with their sex life. It just seemed safer that way.
Edie had a rule for me, too. Rule number three was: nowhere in the filings, or in the arguments, or even in conversation, was I ever to refer to Thea as her wife. In their relationship, Thea was the proud butch and Edie was the femme, a dynamic that was quite common in lesbian relationships during the sixties, when they had first become involved. Edie felt strongly that referring to Thea as her wife would be an insult to Thea’s memory, so she forbade us from using the term altogether. As far as we were concerned, Thea was, and would always be, Edie’s spouse.
With those three rules in mind, we forged ahead and started drafting Edie’s complaint. For months, we had managed to keep news of her impending lawsuit from getting out. As it came closer to the time when we would file, however, I grew increasingly nervous about the reaction that the major gay rights organizations would have. We had several meetings with Edie where I would ask, “Are you sure you can handle this? Things could get ugly.” She insisted that she could, but I really feared that she would get savaged by both conservatives and progressive groups alike. By now, I was not only extremely fond of Edie, I felt protective of her, too—a dynamic that would only increase over time. Was there any way we could head off possible attacks?
That is when I came up with a plan. Why not bring in one of the very organizations whose reaction I feared? If we had one of the major LGBT groups on our side, it would go a long way toward defusing any criticism from the others. But who could we ask?
The answer occurred to me in a flash: the ACLU. Six years earlier, the ACLU had invited me to become co-counsel in the New York marriage case, so why not return the favor now? The ACLU was obviously a major civil rights organization with significant expertise in this area. I had already worked with James Esseks, now the director of their LGBT and AIDS project, on the New York case. It seemed like the perfect fit, so in September 2010, I called James.
As it turned out, the ACLU was looking for a DOMA case. Despite the May 2009 press release asking people not to start filing lawsuits indiscriminately, two months earlier, on March 3, 2009, GLAD had already filed a challenge to DOMA, Gill v. Office of Personnel Management, in Massachusetts. The administrative proceeding that ultimately became the case of Golinski v. Office of Personnel Management, on behalf of a lesbian attorney who worked for the federal court system seeking medical insurance for her spouse, had also been filed in California, which Lambda later joined. As a result, the ACLU had decided that it too wanted to take part in a DOMA challenge. When I called James, he was immediately interested. He recalls:
I read the stuff, and I thought, “Wow. This is a great story”—and not just a great story to tell a judge, but a great story to tell America. Because this is the kind of story that people can identify with, and it will not make them scared and upset. It will get them comfortable with thinking, “You know, I wish my marriage could last 44 years, and how wonderful that she took care of her spouse as she gradually became a quadriplegic over the course of 30 years.”
The beauty of Edie Windsor’s case was that her personal story was so compelling and moving that people could immediately see the absurdity of how she was being treated. Besides, if you think about it, Edie—an out-and-proud lesbian with parents who had emigrated to Philadelphia as children, a female computer programmer in her eighties who had worked her way through graduate school and who had had a four-decade relationship with a Dutch psychologist whose family had survived the Holocaust—was practically a rainbow coalition all by herself.
Unfortunately, the small cottage in the Hamptons that Edie had bought for Thea for her birthday in 1968 and their Fifth Avenue apartment where I saw Thea as a patient would lead to our first disagreement with the ACLU, soon after they signed on.
“WE WERE WORRIED,” James Esseks says now, “about ‘How is this going to play?’ ” He did not add “in Peoria,” but he might as well have. “If it plays as privileged rich lady—boo hoo hoo—has to pay some taxes, that is not a story that’s going to move people.”
Even Edie herself had expressed similar concerns early on. “I’m not sure we should use the amount,” she told me, “because people will say, ‘She’s too rich—who gives a damn about that woman and her money?’ ”
The ACLU urged us not to focus on the amount of Edie’s estate tax payment—even to leave it out of the press releases altogether. Yet the injury of the tax payment was the whole point of the case. We were not suing for some theoretical or abstract reason, we were suing to get Edie’s money back. It made no sense to pretend that was not true. And although I understood the ACLU’s concerns, from the start I did not believe the amount of money involved would really be an issue, so I pushed back.
For one thing, I argued, Edie might have been rich by the standards of middle America, but she certainly was not by Manhattan standards. She and Thea were not exactly Wall Street titans—they lived in a modest two-bedroom apartment that they had first rented and then purchased in 1986, and they had invested Thea’s inheritance from her family wisely over the years. More importantly, Edie did not live differently in relation to many of the judges and the justices who might hear her case, and frankly, those were the only people we needed to persuade. I did not buy the notion that any plaintiff challenging DOMA had to appeal to everybody across America—that was just mushy “group think” that had nothing to do with the actual specifics of winning the case.
There was another simple reason why focusing on the money was the right strategy. We had a little joke in the office: What do conservative right-wingers dislike even more than gay marriage? Taxes. Edie could have been gay, straight, purple, or from Mars; the fact that she had to shell out $363,000 in estate taxes was sure to raise the hackles of conservatives, who hate taxes in general and the estate tax in particular. In fact, most Americans hate taxes and hate paying unjust taxes even more so. As I seem to recall, our founders had a war about this with the British a couple of centuries ago. Who in their right mind would think this beautiful little old lady, grieving the death of her spouse, should have to pay this huge tax bill simply because she’s a lesbian? Fair is fair, no matter the amount of money in question.
Yet James was absolutely right about one thing: we would have to make sure the judges understood Edie’s full story. We had to write the complaint in a way that would give the full context to the injury that she had suffered.
Fortunately, this was exactly what I had been trained to do at Paul, Weiss over the years. At many firms, attorneys write complaints in a spare, factual style known as notice pleading. Plaintiff was standing o
utside such-and-such restaurant. It was raining. Plaintiff slipped and fell. We are asking for . . . The goal is to say as little as possible, to simply give the other side notice of what your cause of action is.
Paul, Weiss complaints tend to be more narrative, which I prefer. I believe that the way to win cases is by truly persuading, and often the best way to do that is by effectively telling our client’s story. As the associates and I started drafting the complaint, we worked closely with Edie, checking and double-checking facts. I learned the basics from the Edie & Thea documentary, then spent hours talking to Edie trying to get additional details. At that point, however, Edie was not used to telling stories from the early decades of her relationship, and she had a hard time thinking in terms of what might help us in our complaint. I tried every angle I could think of to get relevant information out of her, but as I would find out later, she left out some key pieces of her story.
By the fall of 2010, the complaint was ready to go. We started with Edie’s story from the very first page:
The plaintiff in this action, Edith Schlain Windsor (“Edie”), met her late spouse, Thea Clara Spyer (“Thea”), nearly a half-century ago at a restaurant in New York City. Edie and Thea went on to spend the rest of Thea’s life living together in a loving and committed relationship in New York.
After a wedding engagement that lasted more than forty years, and a life together that would be the envy of any couple, Thea and Edie were finally legally married in Toronto, Canada in 2007. Having spent virtually their entire lives caring for each other in sickness—including Thea’s long, brave battle with multiple sclerosis—and in health, Thea and Edie were able to spend the last two years of Thea’s life together as married.
Then Comes Marriage Page 11