Keynote Speaker: Roberta Kaplan ’91
Roberta (Robbie) Kaplan, a partner in the Litigation Department of Paul, Weiss LLP, has been described as a “powerhouse corporate litigator” and “pressure junkie” who “thrives on looking at the big picture” whether “in the gay-marriage legal fight or high-profile corporate scandals.” Kaplan has been selected as one of “The 100 Most Influential Lawyers” and one of the top “40 Under 40” lawyers in the United States, as well as a 2013 Litigator of the Year by The American Lawyer and 2013 “Lawyer of the Year” by Above The Law.
There is really only one thing that I know for sure. No human being knows what life has in store for them. My client Edie Windsor sure didn’t. As a young woman growing up in Philadelphia after the Depression and World War II, she obviously had no idea what the future would hold. When asked shortly after we filed the case what it felt like to be a plaintiff, Edie remarked that it’s one thing to be “out” as a lesbian, but it’s another thing entirely to be the “out lesbian who is suing the United States of America.”
The same, of course, is true for me. As a closeted lesbian in high school in Cleveland, Ohio, in the early 1980s, as a closeted college student at Harvard in the mid-1980s, or as a slightly less closeted law student here at Columbia in the late 1980s, if you had told me that one day, as an out litigation partner at Paul, Weiss, I would marry a woman, have a child, and then be standing here at my alma mater, having won a landmark civil rights case before the United States Supreme Court, I would have told you that you were certifiably insane.
So when I received the telephone number of a then 80-year-old lady by the name of Edie Windsor, I obviously had no idea that her case would end up at the Supreme Court. In fact, Edie, at first, wasn’t even so sure that she wanted to “hire” me. In order to convince her, I went over to her computer and played for her a video clip from my 2006 oral argument at the New York Court of Appeals in the New York marriage case. Keep in mind that perhaps this was not the best form of advertising on my part, since that was a case that I lost. And it wasn’t even close, 4-2.
But fortunately for me, Edie was persuaded, and, ultimately, based on my representation of the 84-year-old “out” lesbian who sued the United States, the Supreme Court issued its landmark decision that gay couples have the same right to be treated with dignity and respect that straight couples do. Since I have had some time since the Windsor decision to reflect on that experience, I thought I would share with you some lessons I learned from litigating the case.
It is worth noting that, not only did I never imagine I would be standing here like this today, but I did not build my career to become a Supreme Court practitioner. I did not clerk for a Supreme Court Justice. I did not work in the Solicitor General’s Office. My oral argument in Windsor last March was my first appearance ever before the United States Supreme Court. Instead, I grew up as a trial lawyer in the Paul, Weiss litigation department.
I. Facts Matter
One of the most important lessons that every trial lawyer learns is that facts matter. They matter a lot. In fact, any litigator worth their salt knows that facts can be stubborn things. It is unwise, if not foolish, to bring or defend any case without paying very close attention to the facts before, during, and after trial.
So what did this mean in the context of United States v. Windsor? First and foremost, it meant that we knew from the very beginning, to borrow a phrase from Bill Clinton’s first presidential campaign, that it was “all about Edie, stupid.”
I think that what often got lost in previous gay civil rights cases that had multiple plaintiffs is the life experiences of the plaintiffs themselves. After all, it is hard for a judge or jury to focus on several couples at once. But it is much easier to focus on only one. Unfortunately, when the facts fade into the background, a gay civil rights case can look more like a debate between talking heads on Fox News and MSNBC than a case about real people and their lives.
My view was that the best way to defeat DOMA was not to focus on lawyers or pundits, but instead to tell the story of how DOMA harmed two people: Edie Windsor and her late spouse, Thea Spyer. How did we do that? We told their story as the great love story that it was. Our goal, however, was not to write some sort of “Harlequin romance.” Rather, what we hoped to do was to show that Edie and Thea, who spent 44 years together in sickness and in health till death did them part, lived their lives with the same decency and dignity as anyone else. Edie and Thea had the kind of marriage that any single one of us—straight or gay—would be so lucky to have.
So what facts mattered? For one, there is the fact that when Edie was called in by the FBI for an interview when she was working for the Atomic Energy Commission in the 1950s, she (rightfully) feared that if the FBI were to ask her if she were a lesbian, she would not only lose her job, but her career. I’m sure most of you cannot imagine this, but for most of Edie’s career as a computer programmer, it was a felony to have any employment with the federal government if you were gay. Indeed, just yesterday, The New York Times published a newly discovered Civil Service memo from the Johnson administration in 1964 stating that “[i]n evaluating cases of homosexuality, we automatically find the individual not suitable for federal employment . . . .”
In addition, as you probably know, since you are about to be esteemed graduates of Columbia Law School, one factor that courts look to in deciding what level of scrutiny to apply is whether being a member of the group is an “obvious, immutable, or distinguishing” characteristic. During the case, our adversaries argued that because it’s not clear who gay people really are and because they supposedly have a “choice” about being gay, it is okay to discriminate against them.
Really? Call me crazy, but I think it’s fair to say that when someone tells you that they are gay, we all know what that means. And, believe it or not, in order to develop this argument, our adversaries asserted that Edie’s brief first marriage to a man proved that she had a choice about being a lesbian. The facts, however, demonstrated that she did not.
Here are the facts. Years before Edie met Thea, shortly after she graduated from Temple University in 1950, she married a guy by the name of Windsor in Philadelphia. He was the best friend of Edie’s older brother. Edie’s husband and her brother both served as soldiers together in World War II. Edie already knew that she was attracted to women. But, as she explained in her own words: “In the context of the homophobia that was so prevalent in the 1950s, I certainly did not want to be a ‘queer.’” As a result, Edie, like so many other gay men and women during this era, agreed to get married. It did not take long, though, for Edie to realize that she couldn’t love her husband the way he deserved to be loved. So a few months after their wedding, she told him the truth and then moved to New York City “in order to be gay.”
What is the relevance of Edie’s first marriage? Here is what Edie had to say about it: “What my [first] marriage … shows is that although I tried to make a ‘choice’ about my sexual orientation by getting married to a man, I was simply unable to do so. Thus, as a matter of fact, I really had no choice at all.” Of course, she didn’t. If Edie had had a “choice” about being a lesbian, she would have stayed married to her husband and still be living in Philadelphia.
II. Words Matter
Not only do facts matter, but words matter, as well. I’ll begin at the most basic level. Those who know me well know that I have a stubborn streak. One of the things I was adamant about during the case is the language that we used to describe gay people. Let me be specific. I absolutely refused to use phrases like “same-sex” or “opposite-sex,” “homosexual” or “heterosexual” anywhere in our briefs.
“Why?” you might ask. Because I believed that Americans who are comfortable with gay people don’t refer to them using those terms. In other words, if, like so many Americans today, you have a neighbor, a friend, a colleague, or a family member who is gay, you don’t refer to that person as “a homosexual.” And you certainly don’t refer to their husband or wife as their “same-sex spouse.” Thus, while it is true, as has been reported, that we were given advice to “de-gay” our case, that was not advice that we chose to follow because that’s precisely what our case was all about.
Standing here today, I don’t know if that decision had any impact on the Supreme Court. While the majority did use the phrase “same-sex” in its opinion, almost all of the language from its previous gay rights opinions in Lawrence and Romer suggesting that gay people are different from straight people is completely absent from Windsor, even in the dissents. Indeed, rather than criticizing either the gay “KulturKampf” as he did in Romer, or the “so-called homosexual agenda” as he did in Lawrence, Justice Scalia now criticizes the other justices instead. That itself is a form of progress.
III. The Law Matters
The law matters, too. On the one hand, this seems obvious. Of course, the law matters. After all, what did you just spend the last three years of your life studying? In the context of our case, just look at all the concrete harms that DOMA caused to so many people for so many years.
The Supreme Court uses the word “dignity” 10 times in its 26-page opinion for the Court in Windsor. According to the Oxford English Dictionary, the word “dignity” means “the state or quality of being worthy of honor or respect.” Sometimes, it’s the simplest and most obvious things that say the most. The “state or quality of being worthy of honor or respect” is exactly what the Windsor case was all about. Now that the Supreme Court has recognized that gay people and their relationships are equally “worthy” of respect under the Constitution, the equivalent of the Battle of Normandy has been won.
And you don’t have to take my word for it. When we filed Edie’s case back in 2010, only five states permitted gay couples to marry. Today, 19 states do. There have now been 24 decisions throughout the country, in states as far apart in geography and culture as Ohio and Utah or New Jersey and Arkansas, relying on Windsor to extend rights to gay people. Just this week, we got decisions in Oregon and Pennsylvania. And (pew, pew, pew), there’s not a single case that goes the other way. The change is happening so much faster than I, or anyone else, expected. It is now clear that there are at least two issues on which Justice Scalia and I completely agree: One, “Chicago-style” pizza isn’t really pizza; and, two, the underlying logic and language of the Windsor opinion will inevitably lead to equal marriage in all 50 states.
It is far too easy in today’s world of Twitter, Fox News, and Politico, to become cynical—to assume that it’s all one big inside game and that cases do not get decided on the merits, but for other, less-principled reasons. I’d like to offer U.S. v. Windsor as a kind of antidote to that kind of cynicism. What the Windsor decision means is that courts matter. What Windsor means is that the United States Constitution matters. And what Windsor means is that what we do as lawyers every single day really, really matters a lot.
One of the great Hasidic rabbis, Rabbi Nachman of Bratslov, taught his followers that: “All the world is a very narrow bridge. And the main thing to remember is not to fear at all.” Those words are as true today as they were in Rabbi Nachman’s world of Crusades and pogroms hundreds of years ago.
So like Edie Windsor, be brave. Be yourself, and be true to yourself. As my dear friend and Windsor co-counsel Pam Karlan would say: “You cannot choreograph a lifetime.” So even if you lose a case, or two, or three along the way (as I did), keep on walking across that narrow bridge with as little fear as possible. You are about to enter the noblest of professions. Take on clients and cases because you know in your mind and in your heart that it’s the right thing to do. As far as I can tell, that is what this crazy condition of being both a human being and a lawyer is all about.