Review: The inside story of the fight for gay marriage from the lawyer who defeated DOMA
Early in “Then Comes Marriage: United States v. Windsor and the Defeat of DOMA,” Roberta Kaplan, the lawyer who won the DOMA case before the U.S. Supreme Court, writes about her wife, Rachel Lavine, and her feelings about marriage. “Rachel had been to a lot of straight weddings in her life,” Kaplan tells us, “and even when she loved the bride and groom, she hated the weddings themselves because they made her feel excluded. Once we started going to the weddings of our lesbian and gay friends, however, that changed. These weddings were full of wondrous joy. Everyone there, not just the brides or the grooms, was filled with gratitude, love, and awe.”
I entirely agree. To attend the wedding of a gay or lesbian couple is to understand in the most fundamental sense what marriage means, because until recently, none of the celebrants could take for granted that their love might be legally recognized. Until recently in Kentucky, Rowan County Clerk Kim Davis obstructed the rights of gay couples to receive wedding licenses, claiming “God’s authority” as a defense. That this is bigotry, pure and simple, should go without saying, but then, as Kaplan persuasively argues throughout her book, old (and discriminatory) attitudes tend to die hard.
And yet, “Then Comes Marriage” insists, this is what the law is for, to make a case for (or even lead us toward) equality. Certainly, that’s what United States v. Windsor was about: a suit filed on behalf of Edith Windsor, who had to pay more than $600,000 in estate taxes after her spouse Thea Spyer died in 2009.
Windsor and Spyer had been together for 44 years when Spyer died; they got engaged in 1967 but had to wait four decades before marrying in Toronto in 2007. In the middle of “Then Comes Marriage,” there is a photograph of the couple, taken in the late 1960s, and they are fierce and beautiful and in love. “I feel like I can die now,” Spyer, who was wheelchair-bound with multiple sclerosis, told Windsor after their wedding. “Everything is complete.”
Much of what makes “Then Comes Marriage” so compelling is the saga of these remarkable women. Although their marriage was recognized by New York State (they lived in Manhattan), the existence of the Defense of Marriage Act meant that key protections, including those around inheritance, were withheld. At heart, then, the issue is fairness: “If Thea had been ‘Theo’ — in other words, if she had been born a man rather than a woman —,” Kaplan writes, “then Edie, upon being widowed, would not have had to pay a single penny of estate tax on her inheritance.”
At the same time, Kaplan deftly uses their story as a lens through which to consider a broader set of inequities, less about marriage than common human decency. One particularly heartbreaking narrative is that of U.S. Army Staff Sgt. Donna Johnson, killed in Afghanistan in 2012.
“Because of DOMA,” Kaplan notes, citing from an amicus brief filed in support of Windsor’s lawsuit, “the military did not notify Sgt. Johnson’s wife of her death, but instead notified Sgt. Johnson’s mother. Sgt. Johnson’s wedding ring was not returned to her wife, but was given to her mother along with her personal effects. … And her spouse was denied the spousal death benefits and support services that opposite-sex spouses of fallen soldiers are entitled to receive, including the opposite-sex spouses of the other soldiers killed in the same attack.”
By zeroing in on benefits, Kaplan smartly shifted the focus in United States v. Windsor away from sexuality and into practical concerns. “In my mind then and continuing today,” she observes, “this equal protection argument is, at its core, what LGBT cases are really all about — the simple proposition that gay Americans, like all Americans, have the constitutional right to equal protection under the law.”
She does something similar throughout “Then Comes Marriage,” using her experience of coming out — the day she told her parents she was gay, her mother “walked to the edge of the room and started banging her head against the wall. Bang. Bang. Bang” — as well as that of marriage and parenthood, to highlight the aspirations many of us share.
Among the most chilling anecdotes in the book is the story of a home visit by a social worker, required before Kaplan could legally adopt her son Jacob. (Lavine was his birth mother.) "[W]hat are you going to say to him about why he does not have a father to play ball with?” the social worker asks, and after Lavine lets her have it (“By the time he’s in that Manhattan park playing with his friend Johnny,” she shoots back, “Johnny’s father will probably be on his third wife.”), she apologizes for having offended them.
Too little, too late — which is, of course, the whole point of “Then Came Marriage” as well as of the marriage equality movement, that this is a debt that is long overdue. For Kaplan, it is less a moral matter (although that too) than a legal one, a question of the kind of country in which we want to live.
Two years later, marriage equality is U.S. law, and DOMA has been consigned to the dustbin of history. Kaplan played a huge role in this — an attorney who stood up when required. “All it takes,” she writes in “Then Comes Marriage,” quoting the rabbi Abraham Joshua Heschel, who marched with the Rev. Martin Luther King at Selma, “is one person … and another … and another … and another … to start a movement.”
Individual responsibility, in other words, a willingness to fight for what is right. That’s the story of this deeply moving book, and of this landmark case, of which Harvard law professor Laurence Tribe has said, “I can’t think of any Supreme Court decision in history that has ever created so rapid and broad a lower-court groundswell.”
Then Comes Marriage: United States v. Windsor and the Defeat of DOMA
Roberta Kaplan with Lisa Dickey
W.W. Norton: 320 pp., $27.95
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