New book details Windsor Supreme Court victory

Never underestimate the power of a good story.

In 1963, Edie Windsor, a mathematical genius and ace computer programmer for IBM, met Thea Spyer, a therapist, at a Greenwich Village restaurant. It was the start of a 45-year love affair that would only end with Spyer’s death in 2009 of aortic stenosis.

They kept a magnet with the phrase “Don’t postpone joy” on their refrigerator door, an apt reminder, since for over 20 years Spyer struggled with progressive multiple sclerosis resulting in her becoming a wheelchair-bound quadriplegic. Windsor became her prime caregiver. The couple finally married in Canada in 2007 and was the subject of a 2008 documentary film, Edie & Thea, which had a tumultuous six-minute ovation at the Frameline LGBT International Film Festival that year.

After Spyer’s death, a federal estate tax bill of more than $363, 000 hit Windsor, as cash and gifts Spyer had given to Windsor were fully taxable under the Defense of Marriage Act. Windsor decided to sue the government in hope of getting her money back, birthing the Supreme Court case, United States v. Windsor, which ultimately overturned a key provision of DOMA.

Her lawyer in this landmark case, Roberta Kaplan, has now written a book, with Lisa Dickey, Then Comes Marriage: United States v. Windsor and the Defeat of DOMA, an account of this significant civil rights victory.

Kaplan, who will be in the Bay Area for a very quick book tour next week, spoke to the Bay Area Reporter in a recent phone interview.

“‘It’s all about Edie, stupid, ‘ was my mantra throughout this whole case, ” Kaplan, 49, said. “Her story is so human and has moved many people. My brief began with their enduring romance. The legal issues were not complex but I knew we had to change attitudes and minds. If we could persuade the judges that the life Edie lived with Thea was the exact same as other marriages, we would win the case.”

When asked why the need for another book on marriage equality when at least four have been published in the last two years, Kaplan responded that this was the first, and so far only, book written exclusively on the Windsor case. Almost all the other marriage books focused on the Proposition 8 case, “which did not result in a decision on the merits and from a legal perspective did not have a direct decision on the Obergefell v. Hodges decision that legalized same-sex marriage in all 50 states, ” she said, referring to the high court’s ruling in June.

“Up until we filed the Windsor case in 2010, only four states had marriage equality, but relying on the logic and wording of Windsor, by Obergefell, 37 states allowed it, ” Kaplan continued. “The lawyers [Ted Olson and David Boies] in the Prop 8 case bet on the wrong horse. Windsor has made all the difference while Prop 8 just affected California. I wrote the book so readers could hear the perspective from a gay litigator on this issue, which I don’t believe the other books showcase. I wanted to tell the honest story of how three or four Jewish lesbians managed to change our country for the better.”

Personal connections

Kaplan, a partner in the litigation department of Paul, Weiss, Rifkind, Wharton & Garrison, highlighted the personal connections between herself and Windsor.

“I had not known Edie before I was referred to her case, but I knew who she was. I was 24 and had just started coming out as a lesbian and for the first time I was depressed and anxious. I had told my mother I was gay and her response was to bang her head against the wall. Her reaction was so over the top that I couldn’t talk to her, ” Kaplan said. “I knew I needed to meet with a therapist and the name that came up again and again was Thea Spyer, as she was knowledgeable about gay issues. Our first sessions were held in her living room of the apartment she shared with Edie. Because Thea wanted to show me that I could have the life I wanted, she talked incessantly about Edie, a brilliant mathematician, a female Alan Turing, based on her description. She presented her and Edie as proof that you could have a fulfilling relationship and a happy life if you were a lesbian. So 18 years later when I had created that life for myself, I remembered that apartment, as it looked the same as it did in the summer of 1991. Of course, Edie didn’t act at all like Alan Turing. She was charismatic, smart, and charming, the perfect person to challenge DOMA. It was as if God had dropped this case in my lap, as a way to pay Thea back for helping me through some of the darkest days of my life.”

Kaplan said that Windsor, now 86, was very involved in the DOMA court case and continues to be a close friend.

“She became a member of my family, a surrogate grandmother to my son Jacob, whom she loves unconditionally, ” Kaplan said. “We spend all the holidays together and we go on vacations to Provincetown together. I give her legal advice and she gives me life advice.”

Windsor, despite heart problems, is as active and engaged with life as always, Kaplan said.

Kaplan noted the similarity between their lives, both having had to contend with homophobia, yet it was far worse for Windsor and Spyer, who though they wanted children, were too fearful of being publicly exposed if they attempted to adopt one. Their entire lives were closeted.

“The personal is always political, as Gloria Steinem once said, no matter what time period you live in, ” Kaplan said. “I recently saw the movie Pride, which takes place in 1983 and, although I was in college during that period, I had forgotten how hostile society was to us then and how far we have come, in that so many gay people can live such open, transparent lives today.”

Faith is a factor

Kaplan’s Jewish faith figures prominently both in the book and the court case.

“My Judaism teaches that every person is created in the image of God and so has inherent dignity, as well as inalienable rights, ” she said. “It upsets me that in this country we have ceded the religious ground to the right, which is why in our case I sought out briefs from mainstream religious organizations, even if they did not have same-sex religious ceremonies, because they still recognized the civil rights of LGBT people. For the first time, conservative Jewish groups provided an amicus brief to the Supreme Court. This was a personal issue for me because I thought that if I came out as a lesbian, I would be divorcing myself from my religious community, which was so important to my family. Fear of losing that connection kept me in the closet. I cannot tell you what it meant for me this year getting an honorary degree from the Jewish Theological Seminary.”

She talked about the 2013 Supreme Court decision in Windsor and its aftermath.

“I also believe that when Justice [Anthony] Kennedy wrote in our case about how every gay person has dignity under the law and needs to be respected like anyone else, this is part of his religious beliefs, ” Kaplan said. “And now I think it is almost impossible to come up with any argument about discrimination against gay people under the law. Even Republican federal judges, who are not elected, have followed the reasoning behind Windsor. The surprise for me has not been the way Windsor was interpreted, but how quickly it has happened and that Obergefell followed only two years after our case. It’s like the time span between the Battle of Normandy and the end of World War II. Ever since Romer v. Evans (1996), which declared Colorado’s anti-gay amendment unconstitutional, and Lawrence v. Texas (2003), which struck down all sodomy laws, we have journeyed alongside Justice Kennedy in his evolution of gay rights.”

Kaplan concludes the legal logic in all of Kennedy’s opinions will eventually end anti-gay discrimination in the U.S.

“A Mississippi law prohibiting same-sex couples from adopting children is being challenged and Obergefell will help strike it down as unconstitutional, because no government entity, either an employee or agency, can discriminate against gay people anymore. Kim Davis is the clearest example of someone who wants to use a religious liberty argument to discriminate; yet she swore an oath to uphold the Constitution. It is laughable that she can then decide which laws to enforce, which is why every decision in her case has gone against her, ” Kaplan said, referring to the Kentucky clerk who was briefly jailed for refusing to grant marriage licenses to same-sex couples.

Kaplan said that, years ago, some in the LGBT rights movement saw Windsor’s case as nothing but a privileged older white woman trying to get her money back from the IRS, a poor prospect for the Supreme Court. Kaplan observed how same-sex couples from every state and all walks of life, who can’t even imagine Windsor’s world in Manhattan, have wanted to shake her hand and thank her for her courage and willingness to refuse to pay an unjust tax just for being gay.

During the summer after Windsor, Kaplan said she felt like “the guy in the Chagall painting, floating high above the world in a state of exaltation. I knew I had to return to the ground and take my son to school and pick up the clothes from the dry cleaners, but there are still moments when I experience that feeling and marvel at how extraordinary it is how gay people are accepted on so many levels, something that would have been unthinkable just 20 years ago.”

“Ultimately, it’s all about dignity, ” she said. “I had to recognize my own dignity as a lesbian before I could be truly effective as an advocate. Many gay men and lesbians had to step forward and demand their dignity be recognized by their families and, ultimately, by their own government. Together we have changed American society.”

This article was first published at the Bay Area Reporter (ebarby0.com), by Brian Bromberger

Roberta Kaplan will be interviewed by out Re/code Executive Editor Kara Swisher Tuesday, October 20 at the Oshman Jewish Family Community Center, 3921 Fabian Way, Palo Alto, in the Schultz Cultural Arts Hall. Tickets for the event, from 7:30 to 9 p.m., are $15 general or $10 for Commonwealth Club members. For more information, visit here