Lawyer Who Won DOMA Case Shares Journey In New BookPlay
2015 was a huge year for gay marriage - arguably the biggest. In June, the Supreme Court decided in Obergefell v. Hodges that same-sex marriage is a legal right nationwide.
It took years and many other cases to get there. One of the big ones, which came just two years ago, was the United States v. Windsor, in which the court ruled that the Defense of Marriage Act was unconstitutional.
Roberta Kaplan is one of the lawyers who argued that case. Her book chronicling the journey, "Then Comes Marriage: United States v. Windsor and the Defeat of DOMA" has just come out (excerpt below).
In the book, Kaplan also chronicles her own very personal journey, from being a closeted college student and young lawyer, to being one of the most well-known lesbian attorneys in the country, bringing one of the biggest gay marriage cases in the country before the Supreme Court.
Kaplan talks with Here & Now's Indira Lakshmanan about the book, and about what's next in the fight for LGBT equality.
Interview Highlights: Roberta Kaplan
On the day she came out to her parents
“I was not exactly a campus radical, on terms of gay rights or anything else, and I had very much waited until the bitter end of my third year of law school to ever have the guts to really come out. But my bad luck, just after I did, my parents were coming to visit, and even worse luck, it was gay pride. So as they were coming to visit my apartment in New York City – they lived then and now in Cleveland – and they were going through the parade and the floats and all the people dressed up.
"The next thought in my head was that God had given me this opportunity, this way to thank Thea.”
"By the time they got to my apartment, I think it’s fair to say, they were kind of in high dudgeon. And my mom kind of started to talk about, well she didn’t understand what everyone was so proud about, and what’s with all the rainbows. And it turns out, one of my college roommate’s mom was then Manhattan borough president Ruth Messinger. And so she said ‘What’s Ruth Messinger doing leading this parade?’ And on and on and on. I said ‘Please, stop.’ My mom – as mothers and daughters often do – continued. I said ‘Please stop,’ again. And she said ‘Well why are you saying that? Are you gay?’ I said ‘Yes.’ And she literally walked a couple of feet over to the corner of the apartment and started kind of banging her head against the wall... It’s not about my mom. This is not a criticism. My mom’s asked me to forgive her about 10 million times for that and I have. And like so many other people, she’s evolved on this issue. But I was pretty low at the time and I went around asking – here’s the incredible thing – I went around asking for a psychologist who’s good at gay issues to talk to, and the name I kept getting was Edie’s spouse, Thea Spyre.”
You only met Thea Spyer twice, but she had such an impact on your life
“She did, in so many ways, that are in some ways so mysterious and I’m not even sure I can grasp them fully. During those sessions, she talked to me about this lady she had been with for many years by the name of Edie Windsor and how Edie was this brilliant mathematician and how she was at NYU, and on and on. I can still remember it. I think Thea was convinced, I was so despondent and so stubborn, frankly, that Thea was convinced that the only way she would persuade me that I could have the kind of life that I wanted was to tell me about her own. So I actually knew Edie Windsor’s name 18 years before I ever met her.”
On going to Edie’s house to help with her case and realizing she had been there before
“I basically walked into the apartment, it looked exactly the same, at least as my memory remembered it, as my brain remembered it. I saw the chair where Thea sat as my doctor. I saw the chair where I had sat as her despondent patient, and it was like, you know, all those emotions came right back to me. And I said to Edie ‘You have to give me a minute. I’ve been here before.’ I then explained to her why, and then I think the next thought in my head - and I’m not sure I expressed it to Edie back then - but the next thought in my head was that God had given me this opportunity, this way to thank Thea and to show her how much I appreciated what she had done for me and I was going to do this to pay her back.”
On leaving out words like ‘homosexual’ and heterosexual’ from her court briefing
“My view, and this is from the experience of litigating any kind of case, is that words matter. I know they matter in what you do, Indira, and they matter in what I do. And when I thought about it, people who are comfortable with gay people don’t use words like ‘homosexual’ and ‘heterosexual,’ or ‘That’s the same-sex couple that lives across the street.’ They say ‘That’s the gay couple,’ or ‘The gay guys who live across the street.’ And so I insisted in our briefs the only words that we use were ‘gay’ and ‘straight,’ because I think that’s the language Americans use when they’re comfortable with gay people.”
On being the only gay lawyer in the two gay marriage cases presented to the Supreme Court in 2013
"I had this Post-it on my computer that said ‘It’s all about Edie, stupid.’ And I think part of that Post-it was to kind of constantly remind myself that I had to keep my own stuff aside. It’s not about me, it was only about Edie and only about getting her money back."
“On the one hand, I tried very hard throughout the case to kind of keep my own stuff out of it. I believe I have to do that for any client. And given the fact that, you know, as a married lesbian, DOMA obviously had a negative impact on me, I thought it was even more important here. So I really struggled. You know, I had this Post-it on my computer that said ‘It’s all about Edie, stupid.’ And I think part of that Post-it was to kind of constantly remind myself that I had to keep my own stuff aside. It’s not about me, it was only about Edie and only about getting her money back. I think there are times at the argument where kind of the Robbie Kaplan seeped out. I just couldn’t keep it down anymore. If you listen to the transcript that day, there’s a point where my voice kind of cracks when I answer a question from Chief Justice Roberts. In the end, I don’t think it was a bad thing, you know. I don’t think it was lost on the justices that I was the first gay person to stand up there in two days. And I think, you know, the cracking in my voice probably – it certainly wasn’t planned, but I think it ended up being pretty effective.”
Were you disappointed that the court didn’t legalize gay marriage at that time?
“I’d say disappointed but not surprised. I think what was most surprising though was how quickly it happened. You know, I was thrilled in Windsor. I gave a speech saying that I thought it was the Battle of Normandy in the struggle for gay rights. But if you told me that it would only take another two years to get to essentially the final win, I would have told you that you were nuts. I can’t believe how quickly it happened.”
What is next in the fight for gay and transgender rights?
“I’ve kind of adopted the state of Mississippi as my kind of second home state, and Mississippi still has a law on their books that says gay couples cannot adopt children, so that needs to get done. I’m hopeful that we will win that case. The judge acknowledged in court that we were right on the merits so I’m hopeful about that. But we need to keep doing the kinds of stuff that was happening in Houston in terms of the civil rights ordinance, and we actually have to start winning them. I think most Americans don’t appreciate that, at least technically, there are a lot of states where you can get married, but there’s no civil rights protections under the law in terms of your job, or housing, or stores, and that’s not cool. We need to fix it. I think we will, but there’s obviously what Houston shows is there’s a lot more work that needs to be done and particularly on the transgender issues. I think we have a lot more educating of folks that we need to do.”
Are you nervous that people will start to tune out other gay rights issues?
"If you told me that it would only take another two years to get to essentially the final win, I would have told you that you were nuts.
“Yes and no. You’re always going to have the Kim Davis's of the world. The [court clerk] in Kentucky who kind of made a spectacle of herself by refusing to marry gay couples in her county. In a crazy way, I think it’s a gift, because I think it keeps focus on these issues. It means that people like Kim Davis are always going to lose. There’s no question about that. So I think you’re still going to see attention to it, but I think getting people to focus on the real needs out there: the homeless LGBT kids, so many of the kids are homeless on the streets are homeless because they were gay, or transgender and kicked out of their homes by their parents; focusing on the gay elderly, which is a huge unaddressed problem that needs to be worked on. I’m ultimately an optimist so I think we’ll keep focusing on it and people will give their hearts and their minds work to work on it, but there’s no question that that’s what we need to do. Well we also, by the way, need to have a cure to AIDS. You know, the drugs are great, but we’re the most technologically advanced country in the world and we should have a cure.”
Book Excerpt: 'Then Comes Marriage'
By Roberta Kaplan with Lisa Dickey
Excerpted from the book THEN COMES MARRIAGE by Roberta Kaplan. Copyright © 2015 by Roberta Kaplan. Reprinted with permission of W. W. Norton & Company.
- Roberta Kaplan, lawyer and a partner at Paul, Weiss, Rifkind, Wharton & Garrison. She's also an adjunct professor of law at Columbia University Law School. She tweets @kaplanrobbie.
This segment aired on December 1, 2015.