It’s All About Edie

The story of Edith Windsor motivates the lawyer who will argue next week before the Supreme Court that the Defense of Marriage Act should be struck down.



Thea and Edith


Kaplan, who is gay, concedes feeling stung by the ruling. But she adds, “In ways that people perhaps couldn’t foresee at the time, it was the loss of that case that really became the motivating factor for the New York legislature to pass the statute [establishing marriage equality] only five years later. Fortunately, what was a very disappointing loss turned into a victory in a much shorter time than any of us could have imagined.”

The Windsor case, Kaplan observes, is a completely different set of circumstances.

“In the DOMA context, we’re only talking about states like New York that at this point have already made the decision to allow gay couples to marry.”

The injustice of DOMA seems all the more poignant for Kaplan while living in New York, where the moral and political and cultural questions that were so hotly debated then have been resolved in favor of marriage equality.

“It means that what you have as a result of DOMA is basically second-class marriages for the first time ever in our nation’s history,” she says.

In the brief, Kaplan and her colleagues argue that DOMA has a lot of characteristics that should make the courts “suspicious” of whether there’s any legitimate reason behind it. 

That includes what she calls “the very radical departure” that DOMA represents in terms of the federal government deferring to states on how they define marriage.

It also includes the breadth of DOMA, which covers 1,100-plus statutes. “Therefore we think the law is very similar to the Amendment 2 that was at issue in Romer,” Kaplan says, referring to a voter-approved Colorado measure that prohibited any LGBT nondiscrimination laws from being enacted in the state. The Supreme Court ruled Amendment 2 unconstitutional in a landmark pro-gay decision, Romer v. Evans, written by Justice Anthony Kennedy in 1996.

It includes the rushed way in which Congress passed DOMA, which Kaplan calls “a lack of thought about its implications” for all the federal programs and benefits and burdens.

“And we think it’s clear that, at least on the part of many, DOMA was very much motivated by stereotypical thinking about and a fear of the unknown concerning gay people and their marriages,” she says. “In 1996 no gay people were getting married anywhere.”  

But if anyone epitomized what a gay partnership could look like, it was Edie Windsor and Thea Spyer, who had been together since 1963.

“I can’t imagine a better way to understand what a marriage is,” Kaplan says, “what it was like back then — the history of discrimination that we talked about in our brief. With someone like Edie, who really experienced it, it’s not theoretical for her at all.”