Forcing the Spring: Inside the Fight for Marriage Equality (33 page)

“I wanted to be straight,” she explained.

It lasted less than a year.

“Honey, you deserve someone who thinks you are the best thing in the world,” she said she told him, “and I can’t be that.”

The two divorced amicably, and Edie moved to Manhattan. Her apartment was on the fourth floor of a walk-up building, with room for just a bed and a sink, and bathroom she had to share with a guy down the hall. But the city was just as it had been described in a lesbian pulp fiction paperback she’d purchased, a place where “anything could happen,” where “you could even kiss a girl.”

“I remember thinking, ‘Where?!’” she said, laughing.

Edie boarded a bus to Washington Square Park and stopped a woman wearing a trench coat and pink button-down shirt. These were the years leading up to the Stonewall riots that Chauncey had described in the Prop 8 trial, when the police still regularly sent snitches into gay bars. Undaunted, Edie boldly asked the stranger if she knew where women went to meet. The woman showed her the way to a bar she called “Ls.”

Being a lesbian meant being a career woman at a time when that was still exceptional. With no man to take care of her, Edie worked first as a cosmetologist, then as a bookkeeper, then put herself through New York University’s master’s program in applied mathematics. To support herself, she worked as a programmer on one of the world’s earliest computers for the Atomic Energy Commission and, after she graduated, for IBM.

But it was Edie and Thea’s love story that had Kaplan from the minute she walked into Edie’s small apartment. Every available surface was cluttered with photographs, a visual ode to the forty-two years they spent together.

There they were in black and white, young and beaming not long after they met in 1963. They had run into one another at Portofino, one of the few restaurants where lesbians were welcome. It was owned by Elaine Kaufman, whose Upper East Side saloon Elaine’s became a famed haunt of New York’s literary crowd.

In another shot, Edie is wearing the circular diamond brooch Thea gave her four years later when she proposed. The two women had been driving to the Hamptons, and Edie said yes immediately, though of course back then it was completely impossible. Both knew a traditional wedding band would have raised too many questions; if anyone at work found out that Edie was a lesbian, she could lose her job. President Eisenhower’s executive order prohibiting federal contractors from hiring homosexuals was still in effect, and Edie still shuddered thinking back to her first security clearance interview.

They spent much of their courtship dancing. They never stopped, even after Thea was diagnosed with multiple sclerosis in the 1970s. The photos document her decline: Edie holding Thea tight on the dance floor as the disease began to take its toll, and later, sitting on her lap as Thea spun them both around in her wheelchair.

In 2007, Thea’s doctor told her she did not have long to live. “Do you still want to get married?” Thea asked Edie. She did. Enlisting friends and medical assistance, they managed to fly to Canada, which two years earlier had become the fourth country in the world to allow gays and lesbians to wed. A documentary crew followed them. In the footage, both look joyous, though by then Thea was so crippled she could barely lift her arm.

“Now that is a marriage,” Kaplan thought.

Walking over to a computer, she played Edie a clip of her argument in the New York Court of Appeals. Kaplan wore a suit and a Rolex watch. Her chin-length hair was cut in layers and expertly colored, and she exuded confidence. And like Edie, the lawyer was a lesbian, who knew firsthand what discrimination felt like. Edie was sold, but between the tax bill and the beating she had taken during the 2008 financial market crash, her savings were depleted.

“How much will it cost?” she asked.

Kaplan made a zero with her thumb and middle finger. Her firm would handle the case pro bono, she explained.

“It’s not just for you,” Kaplan told Edie. “I have a wife, and a son, and I care.”

“I thought, if anyone can do this, she can,” Edie said.

On November 9, 2010, Kaplan filed a lawsuit on her client’s behalf in the U.S. District Court for the Southern District of New York. To fend off criticism from gay rights legal groups, Kaplan brought in James Esseks, the new director of the ACLU’s Lesbian Gay Bisexual Transgender & AIDS Project, and she deliberately kept her argument narrow.

Windsor’s brief made clear that the court did not have to decide the larger question of whether the Constitution contained a right for gays and lesbians to marry. It did not challenge a provision of the law that gave states the authority to decline to recognize same-sex marriages performed elsewhere. It demanded only that the federal government refund the estate taxes Edie had paid, on the grounds that DOMA treated married same-sex couples differently than their straight counterparts for no good reason. The opportunity that the Justice Department had been waiting for had arrived.

With a deadline looming to file a response in both the
Windsor
case and a related DOMA challenge out of Connecticut, Holder convened a working group involving multiple divisions of his department to take a fresh look, unshackled from precedent, at whether the defense of DOMA ought to be abandoned.

Did gays and lesbians meet the Supreme Court’s test for heightened scrutiny? It was possible to take the position that it did, because the
Windsor
case was filed in the Second Circuit Court of Appeals, which had yet to consider
what standard of review was appropriate when considering laws that target gays and lesbians for disparate treatment. If so, could the department still mount a plausible defense that the law was constitutional? That was an equally important question, because the Justice Department had on rare occasions abandoned the defense of a law when none could reasonably be made.

Line lawyers in West’s shop considered the same questions that Judge Walker had: the history of discrimination against gays and lesbians, the immutability of sexual orientation, and their relative power to protect themselves in the democratic process.

West was in Milan on vacation with his family when the lawyers called for one last group discussion. It was an intense, hour-and-a-half call, and not everyone agreed. But by the end, a consensus had emerged: Heightened scrutiny applied, and under that standard, DOMA could not pass constitutional muster. As such, the department did not have to defend it.

“I was never so proud of those line lawyers as I was that night,” West said.

The Civil Division’s recommendation carried a lot of weight, because it is the government’s defense shop. But other divisions were also involved in the debate, and one very important one remained adamantly opposed.

The Office of the Solicitor General argues cases on behalf of the government at the Supreme Court. Elena Kagan, Obama’s first solicitor general, had recently left to take her place on the Supreme Court. It was currently run by Kagan’s deputy, Neal Kumar Katyal, while the president searched for her permanent replacement.

Four of the justices of the Supreme Court had served in the Justice Department, including Chief Justice John Roberts, and would understand what a break from tradition this would be. The Justice Department was not in the habit of arguing that the laws of the United States should be subject to heightened scrutiny. It made it harder to defend them, which was their job. Katyal worried it could damage the department’s credibility at a critical juncture: The Office of the Solicitor General was gearing up to defend one of President Obama’s signature, and most controversial, accomplishments: a massive overhaul of the nation’s health care system, nicknamed Obamacare.

“The context was, what happens if President Bachmann gets elected and doesn’t want to defend health care?” West recalled, referring to Congresswoman Michele Bachmann, who, like the rest of the Republican field of
presidential candidates, was campaigning against Obamacare in the hope of denying the president a second term.

The debate culminated in a conference call just before Super Bowl weekend that one official who participated called a “knock-down drag-out.” Both sides made their case to the attorney general.

“There was a split, strong feelings,” Holder recalled. “At the end of the day, this was something I had to resolve.”

Robbie Kaplan was waiting for the government to file its reply brief in the
Windsor
case when one of the Justice Department’s line attorneys called her office. Would she be willing to agree to a thirty-day delay?

The Justice Department had kept a tight lid on its deliberations, and Kaplan still saw it as her adversary. Not happening, she replied. Edie’s health had worsened, and she could easily die before the case was resolved.

West then called her personally. “We are thinking about what we going to say,” he told her. “We need time to decide how to respond.”

Kaplan found that hard to believe; she fully expected the government to file its pro forma defense.

“Please,” West begged. “The attorney general of the United States is asking you for time.”

“I said, ‘Okay, if that’s what is really going on, and you really are thinking about this, then please tell the attorney general and the president that I am going to be praying for them.’”

“There are lot of important decisions that you make as attorney general,” Eric Holder said, reflecting back on those days of deliberation. “But there are a few that even when you are in the process of making them or deciding them, you understand that they are going to be potentially historic. This was certainly one of them.”

In deciding the way forward, Holder said he kept thinking about the past. He went back to 1996, to a congressional record that explicitly stated that the
intent of DOMA was to express moral disapproval of homosexuality and prevent “wavering children” from experimenting. Then he went further back, to the era of Jim Crow, and separate water fountains.

“The way in which gay people through history have been discriminated against, opportunities denied them, the parallels are very striking. There are stereotypes drawn, negative stereotypes, and policies based on those stereotypes, laws based on those stereotypes. And it seemed to me that you could not help but compare that treatment, that history of discrimination, with the way in which African Americans had suffered. The inability to obtain basic rights, basic American rights, because of who you are.”

He considered the arguments about political power, and those same parallels kept coming up. The election of the first African American president, the appointment of the first African American attorney general, showed that “we are in a fundamentally differently place than we were fifty years ago when it comes to black people,” yet African Americans were still considered a suspect class.

All of that argued for applying heightened scrutiny. But what about the institutional concerns that had been raised by some of his top lawyers? Again, he felt the weight of a shared history. When the Supreme Court issued its
Brown v. Board of Education
decision, it did more than just desegregate schools. “It was an affirmation of black life. To say that the policy was inherently unequal necessarily meant that black people were the equal of white people and need to be treated that way.”