We explained that, even though New York legally recognized same-sex marriages performed in Canada, Edie was still required to pay more than $300,000 in federal estate tax because of DOMA. And because of that:
Edie, now 81 years old, faces the rest of her life without Thea, with shrunken retirement savings, and with the added insult of the federal government refusing to recognize the validity of her marriage, not to mention her forty-four-year committed relationship.
That “added insult” was more painful for Edie than any financial loss she suffered. She told me, “I’m so indignant for Thea. I just want to say to them, ‘Honor my spouse. Don’t turn our relationship into nothing.’ ” How could the government pretend these two were nothing more than strangers to each other? Surely if people understood who Thea and Edie were, and how much they had been through together, they would see that these women deserved to be treated as a married couple.
In order to make sure the district court judge saw Edie and Thea as three-dimensional people, we dug deep into Thea’s and Edie’s lives, starting with their childhoods. Thea’s was particularly wrenching, a history as rich and dramatic as any play or novel. She had lost her mother as an infant, and as Jews in Holland, her family had witnessed first-hand the devastation wrought by Nazi Germany. She fled Amsterdam with her stepmother as a young girl at the outbreak of the Second World War, going first to London, where her father, a Dutch soldier, later joined them just as the Nazi troops were about to invade, and then to the United States. As a teenager, she enrolled at Sarah Lawrence College, only to be expelled when a campus security guard saw Thea kissing another woman. She continued her schooling elsewhere, ultimately receiving a PhD in clinical psychology.
We went on to tell the story of Edie and Thea’s meeting at Portofino, the Memorial Day weekend in the Hamptons when they got together, their engagement years before Stonewall, Thea’s MS and years of quadriplegia, their domestic partnership, and finally their wedding in Toronto. In fact, we spent the first thirteen pages of the complaint simply telling Edie and Thea’s story, before finally getting to the estate tax on page fourteen and the Defense of Marriage Act on page fifteen.
I hoped that the judge—we did not know who it would be until the District Court assigned one to the case—would see, through reading this story, how irrational DOMA truly was. Toward the end of the complaint, I wrote:
Congress claimed that DOMA advances the government’s interest in defending and nurturing the institution of traditional heterosexual marriage . . . By failing to recognize Thea and Edie’s marriage, the federal government does nothing to “nurture” the institution of marriage; rather, it minimizes and denigrates a loving, committed relationship that should serve as a model for all couples, whether homosexual or heterosexual.
As we were putting the finishing touches on the complaint, I felt good about our approach. While I was anxious to get it filed, there was one more hurdle to clear, and it would not be cleared so easily.
WHEN I INVITED James and the ACLU to join Edie’s case, he knew something I did not: he knew that Mary Bonauto and GLAD, having already filed Gill in Massachusetts, were preparing to file a second DOMA challenge in Connecticut with another group of plaintiffs as couples. Because Connecticut and New York are both served by the Second Circuit Court of Appeals, this meant that once our two cases moved past district court, we would in some sense be in direct competition as to which case would get decided first. And because Mary had long been the undisputed legal face of the marriage equality fight, she probably would not appreciate having to compete with another DOMA case.
James was anxious not to step on Mary’s toes—in fact, he felt so torn that for a while, he couldn’t decide whether to join our case at all. He kept asking me for more time to decide, which I reluctantly gave, but I would tell him, “James, the complaint is ready. We need to file now, because Edie’s not getting any younger.” I finally told him we would love to have the ACLU as co-counsel, but that we were going to file either way. He went back and forth, and when he finally signed on, he insisted that we negotiate with Mary Bonauto about the timing of our filing.
I had not met Mary at this point in time. While I had admired her tremendously for the work she had done and considered her a true hero of the LGBT rights movement, I definitely did not want to negotiate our filing date with her. I felt sure that she would argue that it was not good for the movement to have more than one DOMA challenge in the Second Circuit, and I knew she might even ask us not to file at all so that her case could move smoothly through the court system.
But all I could think was, Edie deserves to get her money back. I could not, in good conscience, advise Edie to give up on the $663,000 she had paid in federal and state taxes because filing her case “was not good for the movement.” She was my client, she had put her faith in me, and I owed it to her to bring her case before the court, as I had promised her I would. I told James, “I’m not going to talk to Mary. Nothing good can come out of that phone call.” My fear was that Mary and I would get into an argument that might make the relationship difficult going forward, and I did not want to take that chance. Even if we were filing two separate cases, we were going to have to work together, so I told James that he would have to take care of this problem on his own.
At the same time, I did not want to come on as the bullish outsider, trampling all over other people’s turf. To keep the peace, James and I arrived at a compromise: even though our complaint was ready to go, we would hold off filing it until Mary’s was ready, too. James made the proposal to GLAD, and after an endless exchange of e-mails, everyone agreed that we would each file simultaneously on November 9, 2010.
We scheduled a press conference at the LGBT Center on West 13th Street, just a few blocks from Edie’s apartment. Expecting no more than a couple of dozen people, we booked a room with just a few rows of chairs. While the Edie & Thea documentary had played at film festivals all over the world, Edie was still relatively unknown in New York. I could not wait to present Edie and her case to the world.
8
SOMETIMES, PRAYER WORKS
“Thank you all, each and every one of you, for being here today,” Edie said to the twenty or so people assembled in a small, somewhat ramshackle auditorium at the LGBT Center in New York. “This case is extremely important to me, and I am grateful for your presence and support.” She was, as always, perfectly put together—dressed in a tailored black suit, purple silk blouse, and the circular diamond engagement pin that Thea had given her in 1967. From the moment she began speaking, she won the room over with her charm and dignity.
This was Edie’s first public appearance as plaintiff in the just-filed lawsuit, Edith Schlain Windsor v. the United States of America—the official case title that had thrown her into a bit of a panic the first time that she saw it. Edie Windsor versus the entire United States? Who did she think she was? As Edie would later explain in the context of describing how coming out is a continuous process, it was one thing to be an out lesbian, but quite another thing altogether to be “the out lesbian who just happens to be suing the United States of America.” But, as she would tell a reporter, “I thought, if Robbie’s not terrified, I’m not terrified either.”
I was far from terrified. In fact, I was thrilled. After long, tedious months of laying the legal groundwork and worrying constantly about Edie’s health, I was relieved that we had finally been able to file her case. During the year and a half since Thea’s death, the fight for marriage equality had picked up speed: Vermont, Iowa, New Hampshire, and Washington, DC, had all legalized equal marriage, and in August 2010, a lower court in California had ruled in the Boies and Olson lawsuit that Prop 8 was unconstitutional. That same summer, the seventy-eight-year-old federal judge Joseph Tauro ruled in the case Mary Bonauto had brought in Massachusetts, Gill v. Office of Personnel Management, that DOMA was unconstitutional, which meant Gill was already at the critical circuit court stage. I was impatient to get our case moving—with Edie front a
nd center.
Putting the spotlight so squarely on one plaintiff was an unusual move in this context. In addition to having multiple plaintiffs, most gay rights cases naturally tended to focus on the organizations that brought them—GLAD, the ACLU, Lambda—since they can cogently articulate the relevant policy issues for each particular case. The Prop 8 case, on the other hand, focused on its star legal team of David Boies and Ted Olson. But highlighting our legal team was not going to make this issue matter or win our case. I knew the focus should be on Edie; she would be the spokesperson for our case, and before long, she would become the spokesperson for our cause. Right now, though, she was just an elderly widow whom we wanted to introduce to the world.
The first press conference “was such a small-time affair compared to most everything that happened after that because people didn’t know about the case,” remembers James Esseks. “They did not understand her story, didn’t understand all that much what we were trying to do. It started out in a very rinky-dink context, a small press conference in the LGBT Center, sort of a little gym/auditorium kind of space with Edie, Robbie, and me up front.”
James and Edie spoke, laying out Edie’s story and the legal basis for our case, and then I took a turn at the podium.
There is no question that I get the best part of this press conference. Why?—you might ask. Because I get to speak this morning about the plaintiff, Edith or “Edie” Schlain Windsor. It is not very often that a lawyer gets a chance to represent their hero. In fact, it’s probably a once-in-a-lifetime opportunity.
I had been searching for a good metaphor to describe how I felt about Edie, and, oddly enough for a case about lesbians, I ended up with a sports analogy. “I kind of feel like the kid who has spent years collecting baseball cards who finally gets to meet his or her favorite, all-star home run hitter. That’s exactly what it feels like to have the honor and privilege of representing Edie Windsor.” I then launched into what was to be a central theme for the rest of the case:
We are lucky enough to live in a world that has changed for the better in many ways. So many who did not have rights, including women and gay men and lesbians, now do and many gay people can and do now live their lives openly and with dignity . . .
[I]t is worth remembering that when Edie moved to New York to get her master’s degree in mathematics from NYU in the 1960s, no one and I mean no one could be openly gay and pursue a career in any but a few very narrow professions.
That’s why when Thea proposed to Edie she did so with a circular diamond pin rather than a ring so that Edie could wear it at her job at IBM and not be “out” at work and risk what might happen if people knew she was a lesbian.
Thea did that in 1967, you heard me correctly—in 1967—two years before the Stonewall rebellion that led to the modern gay rights movement. Take a moment and think about that. In 1967, the idea that two women would be able to get legally married to each other anywhere in the world much less in the United States was beyond comprehension. That Thea and Edie had the inner conviction, self-worth, foresight and bravery to get engaged at that time is one of the many reasons why Edie is such a hero.
We were finally off and running, although when we found out which district court judge we’d been assigned, I feared it might be more like off and strolling. Judge Barbara Jones was a solid, fair, and moderate judge who I thought would rule our way on the merits of the case, but unfortunately she was known for taking her time in civil cases. I had argued several other cases in front of her, so I knew she was far less tough on the parties about timing in civil cases than other judges in the Southern District. Considering the state of Edie’s health, I had hoped for a more aggressive judge—someone who would order the parties to proceed quickly on a “rocket docket”—but when that did not happen, I decided we had better try to give Judge Jones every reason to speed it up.
So on November 22, 2010, less than two weeks after we filed our complaint, I wrote Judge Jones a letter explaining Edie’s ongoing health issues.
Given the fact that the fraction of blood pumped by the ventricles of Edie’s heart (or her ejection fraction) is very low (40%), her ongoing coronary disease, as well as the fact that she has a rapid heartbeat (or ventricular tachycardia), the decision was made to surgically implant an AICD (or an automatic insertable cardioverter defibrillator) in her chest to prevent sudden cardiac arrest . . .
Edie also carries nitroglycerine tablets with her at all times in order to deal with periodic attacks of angina. Given the circumstances, Edie understandably seeks to pursue this action as expeditiously as possible.
I doubted that this tactic would work, but it was worth a try. We weren’t exaggerating any of these medical points—not only had Edie had a serious heart attack after Thea’s death, but she had specifically asked me to make sure that I, or someone else, always had her nitroglycerin tablets on hand whenever we were with her at a public appearance. That conversation had a huge impact on me. I was determined to make sure that the court would understand the seriousness of Edie’s heart condition and the fragility of her health. I truly felt like any time we managed to shave off the process, however slight, might be the margin between Edie living to see her victory—or not.
Three days later was Thanksgiving. Rachel, Jacob, and I were in the Hamptons and I was pretty sure that Edie was as well. I e-mailed her early that morning to invite her over for a lunch of cauliflower soup that I had made from scratch. When she did not reply for a few hours I did not worry, figuring that she probably was not spending Thanksgiving day perched in front of her computer. But that afternoon, when she finally did write back, her response—“I had a little heart incident yesterday”—alarmed me. She had become scared being home alone while not feeling well, so a friend had arranged a car service to take her back to the city on Thursday morning.
She was feeling better but was emotional. “My heart is full and behaving,” she wrote, “and I’m crying for Thea all day and singing my head off at the same time. So I’m incredibly thankful for everyone here and for you and Rachel and Jacob in my life and . . .” She signed off with that ellipsis, and I felt my eyes well up. We just had to win this case for Edie.
The following week, on December 3, we received the court’s scheduling order laying out deadlines for filing. Though the order went through April 2011, we were scheduled to still be filing various legal briefs and motions by that point. There was no way around it—this process was going to take time. I forwarded the document to Edie, who wrote back, “I’m exhausted. How does one wait three months?”
So on December 8, I sent another letter to Judge Jones. I informed her that Edie was suffering from an allergic reaction that restricted which medications she could take, and she was spending most of her time confined to her apartment. Once again, I asked the judge to expedite the case in any way possible, adding that we wanted to “inform Your Honor of these developments to the extent that plaintiff’s health has any bearing on the Court’s consideration of the pending motions.”
Over the next year and a half, I would write about a dozen of these letters to Judge Jones, practically begging her to speed up the process. The team jokingly started calling them my “Edie has the sniffles” letters, and though I knew there was a risk we might be annoying the judge, I kept sending them. Julie Fink was worried we were overdoing it. “At certain points, Robbie would call me and say, ‘Let’s send a letter,’ and I would say, ‘Are you sure? We just sent one,’ ” she remembers. While I knew that Judge Jones probably saw the letters as irritating at best and little more than a lawyerly tactic at worst, I also knew that they would serve to remind her that Edie Windsor was a person, not just a name on a lawsuit. I was also confident that Judge Jones, being a fair person, would not hold my letter-writing campaign against Edie, even if she was not pleased with me.
With her various physical ailments, Edie was not having a great winter. And as the holiday season approached, mine was about to get much worse, too.
On December
13, Rachel’s father, David Lavine, passed away after a difficult battle with multiple myeloma. Rachel’s family is very close-knit, and David’s death hit everyone very hard. He was a well-known figure in Connecticut politics, an environmentalist who had written and passed landmark legislation protecting wetlands and other natural resources; he was also a charismatic, handsome, and funny man who adored his family and who was one of my biggest cheerleaders. His death was going to leave a deep chasm in all our lives, including that of our four-year-old son, Jacob.
After David died, Rachel and I found ourselves trying to explain to Jacob what it meant, telling him that it was as if Grandpa David had gone to sleep forever, but that he lived on through us and through all the good that he had done in the world. We were not sure how much Jacob would comprehend about the loss, but as a very sensitive and bright child he understood death and its ramifications. And while he grieved for his Grandpa David, he was emphatic that no one else would ever die—especially none of the three of us. His worry lingered, and one night in his bath he turned to Rachel and quietly asked, “Mommy, can God die?”
“No,” Rachel answered, “God is eternal. God never dies. God is within all of us and is something more than all of us.” In comforting Jacob, we reminded ourselves of what mattered most—love and our belief that we are all part of something much larger than our individual selves. As far as we know, each of us only has one turn at life, and like my father-in-law, I wanted to make mine matter.
Rachel’s family followed the Jewish tradition of sitting shiva at her mother’s home in Rhode Island, where we had all gone for his burial and funeral service. Afterward, at the end of December, we went out to the Hamptons. I was physically and mentally exhausted. After the stress of the past couple of months, I just wanted to relax with my wife and child, away from the pressures of work and life for a brief time. One evening, with friends over, I decided to build a fire. Distracted and tired as I carried a few logs into the living room, I slipped on a spot of melted snow on the wooden floor and went flying. I crashed hard, breaking my leg and tearing several ligaments. On top of everything else, I would be ringing in the New Year on crutches. In the course of six frustrating weeks, we had shifted from off and running to off and limping.
Then Comes Marriage Page 12