Then Comes Marriage

by Roberta Kaplan

  If NARTH had read the study more carefully they would find that it is not supported by my data at all. I bent over backward to make it difficult for my work to be misused, and to no avail. When people are motivated to twist something for political purposes, they’ll find a way to do it.

  It was astonishing. Diamond had stated plainly that she did not want her research being used to bolster antigay arguments about “immutability,” and yet the BLAG attorneys either did not know this fact or chose to ignore it. Unless Diamond had suddenly changed her mind over the last year or so, BLAG had just made a crucial mistake—one that I could hardly wait to take advantage of.

  I decided that we should contact Diamond ourselves, in the hope that she might be willing to repudiate BLAG’s use of her research in our case. It is unusual, and risky, to contact an academic whose work is cited by your opponent. You have no idea how she or he might react, and the conversations are not considered privileged, because that person is not your expert or your client. Here, however, the potential benefit clearly outweighed the risk. Instead of making the call myself, I asked my Paul, Weiss partner Craig Benson to do it, to keep things under the radar in case Professor Diamond did not respond well. Craig called her on August 18, leaving a voice mail message letting her know that BLAG had cited her work and asking whether she would be interested in filing an affidavit to counter BLAG’s claims.

  She shot back an e-mail that same day. “Craig, just listened to your message,” she wrote. “You are correct, they are misusing my work (and as you mentioned, it’s not the first time . . . grrrrr!!!). I can do the affidavit—let’s talk by phone tomorrow about the details.”

  Over the next week, we worked with Professor Diamond to prepare and file a short affidavit—one that BLAG had no idea was coming. In it, Professor Diamond slammed the opposition, declaring, “BLAG misconstrues and distorts my research findings, which do not support the position for which BLAG cites them . . . BLAG has incorrectly characterized my research.” And, in case it was not already abundantly clear, “Counsel for BLAG never requested that I serve as an expert witness for them in the above-referenced lawsuit. If they had so requested, I would not have agreed to do so.”

  Later in their brief, BLAG actually had the chutzpah to continue to cite Diamond’s work to support the following proposition:

  Plaintiff’s claim runs headlong into the different definition of the terms “sexual orientation,” “homosexual,” “gay,” and “lesbian” . . . These differing definitions show that these terms are amorphous and do not adequately describe a particular class.

  In response, we included in our brief what is probably one of my favorite passages in any of our briefs in the case:

  Perhaps most surprising, is BLAG’s assertion . . . that there is no such thing as a “class” of gay men and lesbians . . . [W]hat BLAG appears to be saying is that because academics in the field do not uniformly agree upon the precise definition of terms like “gay” or “lesbian,” what constitutes a homosexual sexual orientation is too amorphous for lesbians and gay men to constitute an identifiable class of persons for purposes of the United States Constitution.

  We respectfully would ask the Court to take a minute or two to pause on this statement given the reality of life today in the United States. When a relative, friend, or colleague says that he is gay, is it really credible (or even intellectually honest) for BLAG to argue that it is impossible to know what that person is talking about?

  SO FAR, IN the battle of filings, we were outflanking BLAG pretty well—except for one thing. I was still troubled that BLAG got away with refusing to admit that gay men and lesbians had historically experienced discrimination in our country. It seemed obvious and incontestable to me, but following the magistrate judge’s order, at least technically for the purposes of our case, it was still up for debate. I wanted to make the point clearly and inarguably, so I turned to Edie.

  “BLAG is making the argument that discrimination against gay people was never that bad,” I told her. “Do you have any stories where you felt discriminated against? Anything at all?”

  I had asked her this question numerous times as we were preparing her complaint, and she had always responded that nothing negative had ever happened to her because of being gay. It just did not seem plausible to me, but no matter how I phrased the question, or how many times I asked her to keep thinking about it, she always came up blank. Then one day, she mentioned offhandedly that an FBI investigator had interviewed her in the 1950s while she was still at graduate school in mathematics at NYU. She had been afraid the interviewer would find out she was “queer,” she told me.

  “Edie, that’s exactly what I’m talking about!” I blurted. “Tell me the whole story.”

  Edie was surprised.

  That kind of experience had been so commonplace that she had not even registered it as discrimination. Despite all of her own political activism for LGBT rights over the subsequent sixty years—the computer programs she had set up for New York City’s LGBT Center when it first opened up in the 1980s and the lobbying that she and Thea did for full marriage rights via the Empire State Pride Agenda, New York’s statewide LGBT advocacy group, among others—Edie still took it for granted that this was just how things were. She was afraid and she hid because she knew that most people would strongly disapprove of her lesbianism and penalize her for it. Right or wrong, good or bad had not really entered into the equation for her. She had just adapted to what was, since there was no way she could change any of it—either the homophobic society of the 1950s or her own lesbianism.

  I now understood that her attitude had been a necessary means of survival for Edie—and for so many other LGBT people of her generation. Without that understanding on her part, she never would have managed to have the dignity to create such a happy and successful life for herself. Now that I understood her psychological as well as her historical frame of reference, I could finally unlock her full history. “Tell me everything,” I said again, and she did. We submitted it in an affidavit to the court on September 15, 2011.

  BLAG makes statements in its opposition papers seeking to minimize the seriousness of the discrimination that existed against gay men and lesbians in the twentieth century. As a result, I would like to tell a story about something that happened to me personally to add some context concerning what things were really like for gay men and lesbians when I was young.

  After [my husband] and I got divorced, I moved to New York from Philadelphia, where, in 1955, I began working on a master’s degree in applied mathematics at NYU.

  In order to cover tuition, I worked as a secretary at NYU. I took some computer classes and later sought a technology-related job. I eventually got a job as a research assistant, programming NYU’s Univac computer, which was devoted to United States Atomic Energy Commission work. Consequently, I had to get “Q” security clearance—a particularly high level of security clearance—in order to perform my duties.

  While I was waiting to obtain this clearance, I received a letter from the FBI requesting that I attend a meeting with them. Although they explained that I did not need a lawyer for this meeting, it immediately occurred to me that the meeting was really about my homosexuality. In other words, I expected to be asked if I was a “queer.”

  Not only did I worry that I might not get the necessary security clearance if they found out that I was “queer,” but I was also very concerned that being “queer” was actually illegal. After I went to the trouble of doing some research, I came to understand that, for women, all that was illegal in New York at that time was impersonating a man. So, I went to the interview dressed even more “feminine” than I usually did—wearing a dress with crinolines and high heels.

  There was no question in my mind that I would be completely honest, even though I knew doing so would likely mean that I would lose the job that I loved. At the time, I was especially frightened because the FBI had asked my building superintendent whether there were people coming and going
from my apartment. My superintendent told me that he had told them in response: “just a bunch of college girls.” As a result, I thought for sure that the FBI was “on to me.”

  As it turned out, the FBI was only following up on a false lead. Fortunately for me, and to my great relief, the FBI agents asked a series of questions about my sister’s friends in the teachers’ union, but did not ask me any questions about whether I was a lesbian. And in the end, despite all my fears and anxiety, I received my “Q” security clearance.

  It turns out, of course, that Edie’s fears were completely justified. Not only was this the height of the McCarthy period, in which gay men and women were being outed and fired from their government jobs every day, but it was actually a felony then to be gay and employed in any capacity by the federal government. In fact, even companies with federal government contracts (such as IBM, where Edie later worked) were prohibited under the law from having gay employees.

  Bit by bit, we were using every tool we had to chip away at BLAG’s argument. Both sides filed so many motions, affidavits, memos, and other legal paperwork that it was not until the end of October—nearly a year after we had first filed Edie’s lawsuit—that all the filings were finally finished. Judge Jones did not typically ask for oral argument in civil cases, so there was nothing more to do except wait. And wait. And wait.

  The leaves on the oak trees near Edie’s West Village home turned gold and red, then fell to the ground. Winter descended on Manhattan, and amid the snow and ice storms, I worried even more about Edie’s health. We kept up our letter-writing campaign to Judge Jones, asking her again and again to please expedite her decision, but to no avail. Then, as winter began to give way to spring, I received the call I had been dreading. On March 6, 2012, Edie suffered a heart attack.

  She was admitted to the cardiac unit at Mount Sinai Hospital on the Upper East Side, and as soon as I heard the news, I rushed out of the office to go see her. I had recently spent a great deal of time at Mount Sinai, visiting our close friend Emily Giske, who had undergone chemotherapy there, so I took my usual route—swinging by Eli Zabar’s deli on the way uptown to pick up sandwiches. Edie’s condition was stable, so the least I could do was to make sure that she had something good to eat while she was stuck in the hospital.

  When I arrived, Edie was deep in discussion with a doctor about whether or not to agree to a certain procedure. Edie was understandably reluctant since, following Thea’s death, her heart had stopped after stents were implanted. Although the doctor tried to persuade Edie that the technology was better now, she refused. I really could not blame her, considering what had happened. Yet, at the same time, given that the doctor was recommending the procedure, I tried to convince Edie to change her mind.

  Over the nearly two years that I had known her, I had developed a maternal feeling toward Edie. Despite the fact that she is almost twice my age, at times she can be as impulsive as a teenager, and she approaches life with an openness and trust that have felt to me, at times, like naïveté. I often found myself wanting to protect her, and never more so than when she was feeling ill or otherwise vulnerable. “Listen, Edie,” I said. “If you were my mother, I would tell you to trust your doctor.” She just shook her head. “But you’re not my mother, so you can make your own decision,” I said.

  When I first met Edie, she had told me that her doctors had said she only had a year or two to live. I wanted to do anything we could to help extend her time, partly because I am a bit like the dog in one of my son’s favorite books when he was younger, A Dog Needs A Bone, partly because I am the kind of person who wants to fix every problem, but also because I cared so deeply about Edie. Sitting in her hospital room and seeing how tired she looked as she nibbled the edges of her sandwich, I felt like my own heart was about to burst.

  And then something unexpected happened. As we talked, Edie started taking care of me.

  I began talking about my almost-six-year-old son, Jacob, telling Edie about the difficulties of being the parent of a child who had what we later learned was severe dyslexia. Edie knew Jacob, of course, and she was so sweet and loving with him that he had quickly grown to love her back as another close family member. Edie had always wanted children, but it just was not feasible for a lesbian couple in the 1960s to have kids. That reality often made me feel sad for Edie, especially watching how she lit up like a Christmas tree whenever Jacob was around.

  Edie is just amazing with him. Jacob loves having someone read to him, and Edie would come over and read him the entire series of Captain Underpants books—which are just what they sound like but even more so—for two hours. That’s about an hour and forty-five minutes longer than I can stand reading Captain Underpants. She would also bring him huge bags of chocolate, handing them to him on the sly whenever she came over. One year for his birthday, she made him a card as tall as he was, with pictures of them together. Another year, for Hanukkah, she made a poster-size card of Jacob dressed as Judah Maccabee with a ledge of tiny lamp bulb candles for the menorah—enough for the full eight-day holiday. Edie is like a third grandmother, always wanting to spoil Jacob and infinitely patient with him. And Edie’s love is not unrequited. Jacob adores her in return.

  Jacob is a wonderful and very loving son, but as anyone with kids knows, parenting can be challenging. As Edie listened to me pour my heart out about the ups and downs of our family life, she gave me thoughtful advice and offered much-needed words of support. I had never considered opening up to her about my own problems, but thanks to those hours sitting together in the hospital, I did—and it enabled me to see another side of her. She calmed and comforted me that day, and I was grateful to her. Rachel and I had always tried to treat Edie like family, but after that day in the hospital, it felt like she truly was family.

  Edie spent a couple of days in the hospital, and though we were all relieved when she got to go home, I could not help but worry, knowing she could have another heart attack at any time. I was desperate for Judge Jones to release her decision, but the weeks kept ticking by. Then, in early May, Vice President Joe Biden unexpectedly entered the fray, making the whole debate a lot more interesting—and a lot trickier for President Obama.

  VICE PRESIDENT BIDEN was in the middle of an appearance on Meet the Press, discussing the economy and the ongoing 2012 presidential campaign, when David Gregory threw him a curveball. “You know,” he said, “the president has said that his views on gay marriage, on same-sex marriage have evolved. But he’s opposed to it. You’re opposed to it. Have your views—evolved?”

  “I am absolutely comfortable with the fact that men marrying men, women marrying women, and heterosexual men and women marrying one another are entitled to the same exact rights, all the civil rights, all the civil liberties,” Biden replied. “And quite frankly, I don’t see much of a distinction—beyond that.”

  The vice president had just blown up the administration’s official position, whether he meant to or not. He realized quickly that he had gone further than he had intended, judging from his halting response to Gregory’s next question: “In a second term, will this administration come out behind same-sex marriage, the institution of marriage?”

  Biden replied, “Well, I—I—I can’t speak to that. I—I—I—I don’t know the answer to that.” He was clearly thrown, having inadvertently put the president in a difficult position. Now, President Obama would have no choice but to address the contentious issue of gay marriage. As President Obama later joked, “He probably got cut a little bit over his skis, but out of generosity of spirit.” Biden’s statement made headlines all over the country, including this gem in the New York Post: “Going Rogue: Joe Biden Endorses Gay Marriage, Will & Grace, and a Dick Cheney Style of Out-Gaying His Boss.” Biden, joking that he’s a “good skier,” later explained that when he saw the president in the Oval Office that Monday after Meet the Press, President Obama just started laughing, totally embracing what Biden had said.

  Three days later, President Obama characte
ristically rose to the occasion. In an interview with morning-show host Robin Roberts, he hit all the crucial points:

  I have to tell you that over the course of several years, as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.

  (Apparently President Obama didn’t know that Roberts was gay during the interview; Roberts came out publicly as a lesbian two years later.)

  With these words, Barack Obama became the first sitting U.S. President to support marriage equality. His statement was the latest, greatest advance in what had become an amazing run for our side. In February, the Ninth Circuit Court of Appeals ruled that Prop 8 was unconstitutional, setting up a possible appeal to the Supreme Court. Weeks later, Washington and Maryland became the seventh and eighth states to legalize marriage equality. (The New Jersey legislature passed marriage equality, too, although Governor Chris Christie vetoed the measure.) And in one of the four DOMA challenges under way across the country, Golinski v. Office of Personnel Management, District Court Judge Jeffrey White in California had ruled that DOMA was unconstitutional.

  Golinski was now the second of the four DOMA cases to win at the district court level. Like the Gill case in Massachusetts, Golinski was immediately appealed, sending it up to the Ninth Circuit court level. (The fourth case, Mary Bonauto’s Pedersen v. Office of Personnel Management, was still at the district court level in Connecticut.)