Last Thursday night in New York, I participated in a celebration of two heroines. One suffered an injustice and decided to take on the federal government. The other decided to help her right that wrong — and they won. Edie Windsor challenged the constitutionality of the so-called Defense of Marriage Act (DOMA). Roberta Kaplan, a partner at the law firm Paul, Weiss, Rifkind, Wharton & Garrison, took the case all the way to the Supreme Court.
By now you know the story of Edie Windsor. The elegant 84-year-old New Yorker met Thea Spyer, the love of her life, more than 40 years ago in the Big Apple. They legally married in Canada in 2007. But when Spyer died in 2009, Windsor was hit with $363,053 in estate taxes because DOMA prohibited the federal government from recognizing Windsor as a surviving spouse. And when the Supreme Court ruled last month that the 17-year-old law was unconstitutional, Windsor joined a pantheon of heroes whose simple fight for respect led to the same for millions more.
At the Rubin Museum of Art in Chelsea, you could hear a pin drop as I queried Windsor and Kaplan about their victory. That’s no easy feat in a gallery packed mostly with lawyers and featuring an open bar. Windsor talked about what it was like to meet Kaplan for the first time three years ago after the attorney was recommended to her by a friend. “She walked into my apartment and we talked for a little while and immediately we knew we both like each other, right?” Windsor said as she looked to Kaplan for confirmation to the roar of laughter. “It took me about three seconds to decide to take the case,” Kaplan responded.
“I think that fundamentally issues, the issues in our case were very human issues and issues that everyone gets, I hope, in their gut,” Kaplan continued. “The love affair and the marriage that Edie and Thea had is the kind of marriage that any of us, gay or straight or young or old, rich or poor, would be so lucky to have. Anyone in this country would be lucky to have a spouse like Edie Windsor. And I believed instantaneously that was a story Americans would understand. That was a story the justices, I hoped, would understand. And that it would lead to the end of DOMA.”
United States v. Windsor was the first case Kaplan ever argued before the Supreme Court. The 15 minutes she had to answer questions from the justices “was a nerve-wracking experience,” she said. It was only in retrospect that Kaplan notice what she deemed “a sign” from the court. “What was most surprising is that none of the justices, and certainly none of the conservative justices, asked about the rationales for DOMA. I got not a single question about that,” Kaplan told the audience. “And if you think about that, that should have been a . . . sign because the truth is they probably didn’t think any of the rationales for DOMA were good enough to ask me a question and have them subject not only to my answers, but to Justice [Elena] Kagan and Justice [Ruth Bader] Ginsburg chiming in.”
Kaplan believes that a constitutional right to marry affirmed by the Supreme Court is only a matter of time. She pointed out that the majority opinion in the DOMA case written by Justice Anthony Kennedy “talks 11 times about the dignity of gay people and the dignity of our marriages.” Kaplan explained to the crowd that “dignity is the word that conservatives use for equality.” And then she highlighted the significance of what Kennedy did. “It seems to me that once the Supreme Court has accepted that proposition, [that same-sex marriages are equal to straight marriages],” she said, “the end in sight is that the court must say that with the respect to the right to marry overall.”
When I asked Windsor if she was nervous during the high court arguments, she replied, “Not at all. Not at all.” Windsor’s faith in Kaplan was solid. “Amazing,” Windsor said in praising her attorney’s skill and cool demeanor before the court. “When I left, I said, ‘We have it made.’ ”
The demise of DOMA has had an immediate impact on the lives of LGBT couples, especially those with a foreign-born spouse or partner. When Windsor was asked how she’d like to be remembered 50 years from now, she put her head in her hand and said, “Wow.” But she put the focus on those couples by saying that she hoped this time would be remembered as “the time when everybody [who had] an out-of-country partner [could] bring them home to America.”
What about the prospects of new love for Windsor, a questioner wanted to know. Is the newly minted heroine of the LGBT civil rights movement dating anyone? “No. I have a problem because I’m still terribly in love with Thea,” Windsor said as everyone swooned at her romantic reply. “I’d have to put away who she is to find anybody possible.” But that should not have come as a surprise. Windsor still wears the diamond circle pin Spyer gave her in lieu of an engagement ring.
As impossible as it is for Windsor to “put away” Spyer, so it should be for the rest of us. Windsor and Spyer were a glamorous duo whose love for each other was chronicled in the 2009 documentary “Edie & Thea: A Very Long Engagement.” And it was their love that brought about the end of DOMA. So, I’d like to amend my earlier statement. Last Thursday night in New York, I participated in a celebration of three heroines who brought greater dignity and respect to LGBT Americans: Kaplan, Windsor and Spyer.
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