‘Then Comes Marriage’
Attorney Roberta Kaplan, in Tenafly JCC talk, will recount arguing for gay wedlock before the Supreme Court
The story of the overturning of DOMA — the Clinton-era Defense of Marriage Act, which prevented legally married gay men and lesbians from benefitting from any federal benefits enjoyed by their married straight peers — is a story of jurisprudence and changing cultural mores and assumptions.
It is an American story.
According to Roberta Kaplan, the lawyer who won the case against DOMA in the Supreme Court, and who will be speaking at the Kaplen JCC on the Palisades in Tenafly on Thursday, it is also a deeply Jewish story.
Still, Ms. Kaplan stresses, even before we get to the Jewishness, it is a story, a history, a tale of two people — two Jews — who loved each other and lived together for more than 40 years, who stayed together throughout debilitating illness, who married as soon as they could, who were separated only by death.
It is the story of Dr. Thea Speyer, a clinical psychologist, the daughter of Holocaust survivors, who loved to dance and kept her back straight and her insight and analytic intelligence intact throughout her struggle with the multiple sclerosis whose complications eventually killed her. It is the story of Edie Windsor, the Jewish lesbian who first married a man whom she truly loved, but not as she knew she should love a husband; who was a computer system consultant for IBM at a time when women were not computer system consultants. It is the story of two women who found each other.
When Dr. Speyer died, Ms. Windsor was expected to pay more than $350,000 in taxes, money for which a surviving spouse would not be billed. It was that relatively small-scale injustice to a very real person that led Ms. Kaplan — a hotshot litigator who made partner at the very impressive Manhattan law firm Paul, Weiss, Rifkind, Wharton & Garrison at the nearly unheard-of age of 31 — to take her case.
The issues the case tackled had to do with the relationship between state and federal law; marriage is governed by each state, but the thicket of regulations that govern each married couple’s rights, obligations, and tax situation often are federal. That generally is not a problem; states all recognize each others’ marriage certificates. DOMA introduced a tangled layer of complications because basically it mandated that some people be married and not married at the same time.
As is true of so many legal cases, at the heart of the complicated regulations and armies of affected people were human stories. It was one of those stories — the elderly woman, with her pearls, her perfectly styled blonde bob, her upright posture, her self-composure, her dignity — that was the catalyst for the end of DOMA.
It is important to point out, however, that the situation in the United States is opposite to the situation in Israel, where only religious marriage exists. No one can have a civil wedding in Israel. Here, we have both civil and religious weddings — couples get a license, and the officiant neatly tucks the civil ceremony into the religious one — but the courts have jurisdiction only over civil marriage. All of the decisions in DOMA are about civil marriage. Our First Amendment rights to freedom of religion mean that no government authority can force any rabbi or other clergy member to marry anyone. Rabbis may refuse to marry gay men or lesbians to each other, just as they may refuse to do intermarriages, to perform weddings for people whose halachic Judaism they question, or even to say no to Jews whose plans to marry seem ill-advised and unlikely to end well.
So — DOMA.
Ms. Kaplan’s taking Ms. Windsor’s case “was bashert,” preordained, Ms. Kaplan said, and it played out in a very Jewish way.
First, there is Ms. Kaplan herself; she grew up in a strong Jewish community in Cleveland, and her references and worldview have been shaped by it. In fact, she said, her reluctance to come out as lesbian in the early 1990s was “my fear that if I did, I would lose my ties to the Jewish community. The potential of having a Jewish family and a Jewish home were far too important to me to risk it.”
The rhythms of the Jewish year are deeply familiar to her; she had to present oral arguments to a court on the day after Yom Kippur “and the first thing that popped into my head was Sandy Koufax,” who famously sat out the day itself, she said. Two days before the argument that she made before the Supreme Court — the first time she ever appeared there — was the first night of Passover, and she made a seder. “My whole family was there,” Ms. Kaplan said. “My parents, my wife’s mother and brother and sister, and their kids, as well as everyone who worked on the case, and also Edie and her friends.
“I don’t think that there was anyone in the room who wasn’t incredibly moved by the fact that we were celebrating this particular holiday,” she said.
In her new book, “Then Comes Marriage,” where she chronicles Edie Windsor’s story as well as her own, Ms. Kaplan adds that they went around the huge table at that seder, and everyone added a personal “dayenu,” a reason why what they already had would have been enough.
Beyond that, “it was very important for me not to cede the religious issue to the other side,” Ms. Kaplan said. “One mistake our side makes is to let the impression exist that all religious people are anti-gay.”
The arguments against DOMA, as well as in Obergefell v. Hodges, the case that made gay marriage legal throughout the country, “are infused with the language of dignity, with the idea that gay men and lesbians are the same as everyone else,” Ms. Kaplan said. “I believe that comes from a fundamentally religious view, the Jewish — and not only Jewish — belief that every human being is created in the image of God.
“If you believe that, then it is hard to come up with a reason why gay people shouldn’t be treated just like everyone else.”
There were 45 amicus briefs submitted on each side of the DOMA case. “On the other side, they were largely focused on the religious argument, saying that ‘My religion says that being gay is a sin, and therefore it would be violating my religious beliefs if the government recognized gay marriage.
“The first group that wanted to file an amicus brief against us was the Westboro Baptist Church,” the group of extremist haters who have found fame in picketing such events as funerals for U.S. soldiers, on the grounds that the United States is so corrupt that anyone in its armed forces must be as well. (Westboro also has found its fortune, such as it is, in that picketing; it enrages people until they strike out, and then it sues.)
“Westboro’s argument was something equating gay marriage to slavery,” Ms. Kaplan said. “To quote from ‘Beauty and the Beast,’ when I heard that they wanted to submit an amicus brief, my response was ‘Be my guest.’”
Among the 45 briefs submitted in support of Ms. Windsor was one from the Jewish Theological Seminary, the academic headquarters of the Conservative movement, as well as from the Rabbinical Assembly, its rabbinic group. “This was the first time the entire Conservative movement signed onto a brief, and the first time in its history that JTS has even submitted an amicus brief,” Ms. Kaplan said. “That was really important to me. I wanted the justices on my side” — the justices she knew would agree with her and vote her way even before she presented her case, as opposed to the ones she’d have to win over in order to prevail — “to know that all religious groups weren’t on one side of it.”
The reason that she and her allies, many of whom had been working on this and similar issues for decades, had been able to win Windsor and Obergefell so quickly was the result of a sea change in public perception. “I lost a marriage case in 2006, and if you look at the briefs we filed, you see they’re the same,” Ms. Kaplan said. “What has changed is not the arguments, but the judges’ ability to hear the arguments.
“What has changed is the perception of what gay people are. Once you have accepted that gay people are human, and not some strange unhappy other, none of the arguments against it make sense.
“There is no question that there is no other issue in legal history that has changed so quickly. When we won,” in 2013, “12 states allowed gay marriage. When Obergefell happened, two years later, it was 37 states. There has never been a tidal wave of cases going in one direction like this in American legal history.”
For Ms. Kaplan, the personal and the professional have joined in profound ways. “The summer of 2013, when we got the decision, I felt like the guy in the Chagall painting. You know the one. He’s flying.” Soaring, in fact, over the rooftops. She went out to her shul, the Conservative Synagogue of the Hamptons, where her rabbi, Jan Uhrbach, who is not lesbian but has been an outspoken proponent of gay rights since before it was either safe or fashionable, “had the assistant rabbi, Michael Boino, write a musical composition based on two psalms, about truth and justice, and then the entire congregation danced with the Torah.
“I don’t have words to describe how that felt. To quote the Haggadah, dayenu. It would have been enough.
“We do have to go back to regular life. I still have to wake up and make my son breakfast and do all the other things that we do, and that’s a good thing. But there are moments when I still have a sense of exultation, when I realize that something that would have seemed extraordinary a few years ago seems ordinary now.” That feeling of exultation, of pure joy, she added, is like Rabbi Abraham Joshua Heschel’s description of somehow feeling the ineffable.
Leaving that sphere, she had a more down-to-earth example of how much times have changed. One recent night, she, her wife, and their son, Jacob, who is “movie-obsessed,” watched “My Fair Lady.” He loved it, she said, but at the end, he said, “I have a question.” What’s the question? “He said, ‘I guess it’s a kind of old-fashioned movie,’” his mother reported. “‘I guess it was made before men could marry men.’”
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