By Kerry Eleveld
Originally published on Advocate.com March 21 2013 4:00 AM ET
During the 16 days in which she wrote the brief for the Defense of Marriage Act case that goes before the Supreme Court next week, Roberta Kaplan drew inspiration from a single Post-it note she affixed to her computer: “It’s all about Edie, stupid.”
“Edie” is, of course, the inimitable Edith Windsor — an 83-year-old widow from New York who faces paying $363,000 in federal taxes on the estate of her late wife and partner of 40 years, Thea Clara Spyer, because DOMA prohibits the U.S. government from recognizing their marriage. The motto — an unmistakable nod to the 1992 campaign slogan that helped elect Bill Clinton (whose signature ultimately ensured the federal tax at issue here) — kept Kaplan focused as she began to build the case she will argue to the nine justices next Wednesday.
“The facts of her life make such an incredibly strong case for why DOMA is unconstitutional, and that has stayed with me the entire time we were writing the brief,” says Kaplan.
“How can you explain why an almost 84-year-old woman, who took care of her spouse and companion of over four decades — through multiple sclerosis, which ultimately led to almost complete paralysis — how do you explain to someone why she had to pay a $363,000 estate tax that she wouldn’t have had to pay if her husband had been Theo instead of Thea?” Kaplan poses. “I don’t think you can explain that to anyone in any rational way.”
When Windsor first approached her about taking the case, Kaplan, 46 and a partner at the firm Paul, Weiss, Rifkind, Wharton, and Garrison, found her life story so compelling that she made a split-second decision.
“I’m known as a person who makes quick decisions, but this is probably one of the quickest decisions I’ve ever made,” Kaplan recalls.
It’s been a wild ride ever since. When Kaplan joined with American Civil Liberties Union to file the case on behalf of Windsor in November 2010, “don’t ask, don’t tell” was still in place, the Obama administration was still defending the Defense of Marriage Act, and President Barack Obama hadn’t yet reached his full evolution on marriage equality.
The day Kaplan learned that the Supreme Court had chosen to hear the Windsor case among a handful of other DOMA challenges, she was sitting around a table at her firm with her colleagues and Edith Windsor.
“As people do in today’s world, we were constantly refreshing ScotusBlog on the computer to see if the court had issued any kind of decision,” she says, “As soon as we got the news, we were all excited, but most importantly, our enthusiasm was coming directly from Edie, who was thrilled.”
Windsor later told the New York Times that the Supreme Court news was “almost a deliriously joyous thing for an old lady.”
Still, for Kaplan, the court taking the case wasn’t the most surprising twist.
“I think the biggest shock in the case,” she says, “was the Obama administration’s decision not to defend.”
The news came on February 23, 2011, just a few months after the case had been filed. Kaplan was in the Caribbean on a family vacation when she got an email that the deputy attorney general wanted to speak to her along with some other lawyers who were challenging DOMA.
After Kaplan learned that the Department of Justice was ending its defense of DOMA on grounds that it was unconstitutional, her first call was to Edith Windsor.
“I didn’t see her because I was obviously away on vacation, but I certainly had tears in my eyes and I think she did too,” Kaplan remembers.
Asked if her chances of winning the case have improved since filing, Kaplan doesn’t take the bait. “I believe that they were as good then as they are now,” she says, “although someone certainly could argue that they’ve improved.”
Although Kaplan’s practice largely involves regulatory and commercial litigation, she is no stranger to big LGBT rights cases. In 2006 she argued the case for same-sex marriage rights in front of New York’s highest court, the Court of Appeals. The ruling and the rationale the judges employed made for a bitter disappointment. Justice Robert Smith, writing for the majority, reasoned that same-sex couples had no constitutional right to marry and that the state had interest in encouraging straight couples to wed because they could accidentally wind up conceiving a baby while having sex.
“It is not irrational for the legislature to provide an incentive for opposite-sex couples,” Smith wrote, “for whom children may be conceived from casual, even momentary intimate relationships, to marry create a family environment, and support their children.”
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.”