On June 26, 2013, the Supreme Court struck down a key part of the Defense Of Marriage Act (DOMA), declaring that gay couples who are legally married must receive the same health, tax, social security, and other benefits that heterosexual couples receive. Edith Windsor brought the lawsuit against DOMA after she had to pay an estate tax after the death of her wife.
Windsor made a statement on the day of that historic decision:
“So overwhelmed with a sense of injustice and unfairness, I decided to bring a lawsuit against the government to get my money back. I lucked out when Robbie Kaplan, a litigation partner at Paul, Weiss walked into my life. Paul, Weiss has a proud tradition of representing clients, including LGBT clients, in a wide variety of pro-bono matters. One of those outstanding pro-bono cases is Edith Windsor (that’s me) vs. the United States of America. At a time when the gay organizations that I approached responded, ‘it’s the wrong time for the movement,’ Robbie Kaplan said, as did Martin Luther King Jr. before her, ‘there is no wrong time to seek justice.’ [She] answered my plea and took it on.”
Windsor’s attorney, Roberta (Robbie) Kaplan is a litigator and partner in the Litigation Department of Paul, Weiss, Rifkind, Wharton & Garrison and an adjunct professor of law at Columbia University Law School. She joined Jim Braude and Margery Eagan on Boston Public Radio to discuss the case and her latest book, Then Comes Marriage: United States v. Windsor and the Defeat of DOMA.
Tell us the story of Edie and Thea.
What led to our case and what really led to equality for gay Americans under the law is a love story. It’s a story between two women, Edie Windsor, (my client) and Thea Spyer, her late spouse. They were together for over four decades, they met in 1965, got engaged in 1967, and went on to spend the rest of their lives together. What’s so incredibly about the fact that they got engaged in 1967 was that was two years before [the] Stonewall [riots]. The idea that two women getting engaged in 1967… that the thought would even come into their head...that is something that never ceases to amaze me. And then the truly heroic part of their lives is what happened for the next 40 years, because Thea was diagnosed with a terrible form of multiple sclerosis, and over time she lost use of her arms and her legs, by the end of her life she was a quadriplegic. Edie has said that that diagnosis has happened to both of them, they made sure that little in their lives changed, and they really lived the mantra, in sickness and in health, ‘til death do us part. Who wouldn’t want to have a spouse like Edie Windsor?
What happened that gave birth to this litigation that you ended up winning?
In 1996, before any gay couples were married anywhere in the country, before there was really a prospect of gay couples getting married anywhere in the country, Congress decided to pass a law, the Defense Of Marriage Act. That law said that in the future, if any gay couples got married, for purposes of federal government, they’re not married. Their marriages are null and void, and they have no meaning under federal law. When Thea passed away in 2009, even though [Edie and Thea] were married under New York law, the government treated them as unmarried. When Edie inherited all their property together, because they had bought an apartment together in the early eighties and it had appreciated in value, she had to pay a huge tax, ($360,000), as if she had inherited it from a stranger. She payed the tax, but then we fought to get it back.
And for you— what’s your relationship with the couple?
When I got this call in 2009 to represent Edie Windsor, I didn’t know her, but I knew exactly who she was. A couple of decades before, when I was graduating law school, it was 1991, and I had the bad luck of having my parents visit me on what was gay pride weekend. They did not know I was gay, and I did not know it was gay pride weekend. When they came to visit my apartment on the upper West Side, they had to snake through the gay pride parade, and by the time my mom got to my apartment, she was in high dungeon form…I finally said to her, ‘enough, mom. Stop it.’ She kept pressing on, and she asked me, ‘why are you asking, are you gay?’ and I said, ‘yes.’ Her reaction was not ideal; she walked over to the other side of the apartment and started repeatedly hitting her head against the wall.
I want to be clear—she has apologized for this seven thousand times… she has evolved on this issue, and that should be celebrated. This is not a complaint about my mom, but it explains the state I was in at the time. I was not a happy camper. So I asked around in new york, I need to see a psychologist who is good at “gay issues”—which was how you talked about it then— and I was given was Thea Spyer. So believe it or not, I saw Thea as a patient, in the same apartment where I met Edie all those years later.
This decision has had such an impact on the entire world… how do you feel about yourself?
This wasn’t me….this was a movement of people, who over time, with great determination and great foresight and great grit, changed the world. I’m glad I had a part in that, but it was only a part.
Roberta (Robbie) Kaplan is a litigator and partner in the Litigation Department of Paul, Weiss, Rifkind, Wharton & Garrison and an adjunct professor of law at Columbia University Law School. Her latest book is titled, Then Comes Marriage: United States v. Windsor and the Defeat of DOMA. To hear more from her interview, click on the audio link above.
