"It's all about Edie, stupid": lessons from litigating United States v. Windsor.

Author:Kaplan, Roberta A.
Position:Marriage Equality and Reproductive Rights: Lessons Learned and the Road Ahead
 
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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 surely didn't. As a young, middle-class woman growing up in Philadelphia after the Depression and World War II, she obviously had no idea what her future would hold. When asked shortly after we filed our 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 just happens to be suing the United States of America." (1)

The same, of course, is true for me. As a closeted lesbian high school student in Cleveland, Ohio, as a closeted college student at Harvard, or as a (slightly) less closeted law student at Columbia Law School in the late 1980s, if you had told me that that one day, as an out litigation partner at Paul, Weiss, I would marry a woman, have a child, and then win 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-eighty-year-old lady by the name of Edie Windsor, I obviously had no idea what would happen. Indeed, Edie at first wasn't so sure that she wanted to "hire" me. (2) In order to convince her, I had to play for her a video clip from my 2006 oral argument before the New York Court of Appeals in the New York marriage case. Keep in mind that perhaps this wasn't the best form of attorney advertising since that was a case that I lost. Badly. It wasn't even close, 4-2. (3) But fortunately for me, Edie was persuaded and ultimately, 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. (4) Since I have had some time since the Windsor decision to reflect on that experience, I thought I would share with you some lessons that I learned from litigating the case.

It is worth noting that 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. In fact, 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.

  1. 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 every detail of 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's all about Edie, stupid." (5)

    This was significant not only because of who Edie Windsor is, but because in contrast to many of the LGBT rights cases that had been brought in the past, our case involved only one plaintiff. I think that what often got lost in previous gay civil rights cases with multiple plaintiffs are the stories of the plaintiffs themselves. After all, it is hard for a judge or jury to focus on several plaintiff 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 Fox News and MSNBC than a case about real people and their lives. Our 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 real people, Edie Windsor and her late spouse, Thea Spyer.

    How did we do that? For one, we drafted what old-time New York practitioners would call a "speaking complaint." (6) That's a more lengthy complaint than what is required by the Civil Practice Rules that attempts to tell a story. Here, of course, we told the story of Edie and Thea's lives as the great love story that it was. Our goal, however, wasn't to write a "Harlequin romance." Rather, what we hoped to do was to show that Edie and Thea, who spent forty-four years together in sickness and in health 'til death did them part, lived their lives with the same decency and dignity as anyone else. By showing that truth, we demonstrated that 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. (7) 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 recently, the New York Times published a newly discovered Civil Service memo from the Johnson administration (8) stating that "[i]n evaluating cases of homosexuality, we automatically find the individual not suitable for federal employment...." (9)

    There were other facts too. Like the fact that Thca first asked Edie to marry her in 1967, two years before the "Stonewall Riots" that led to the modern gay rights movement. (10) Think about that for a second. That is a fact that never ceases to amaze me. Imagine two women who actually had the self-esteem, courage, and foresight to get engaged to each other two years before Stonewall. Thea actually proposed to Edie in 1967 with a circular diamond brooch instead of a diamond ring because she was afraid of "outing" Edie as a lesbian at her job. In fact, it was also illegal at the time to be a lesbian and to be working for a company like IBM that had contracts with the federal government. (11) And then there is the fact that when Thea was diagnosed with a particularly virulent form of multiple sclerosis, ultimately leading to Thea's paralysis, Edie said that the diagnosis "happened to both of them" and made sure that as little in their lives changed as possible. (12)

    Facts like these speak for themselves. And the $363,000 federal estate tax bill that Edie received upon Thea's death certainly didn't hurt either. Any American, Democrat or Republican, straight or gay, can understand what it means to have to pay a huge tax bill simply because you are gay.

    There are other facts about Edie's life even before she met Thea that also turned out to be quite significant. Perhaps the best example is the story of Edie's first marriage. I bet most of you didn't know that Edie had previously been married to a man. Indeed, the fact that our adversaries from the Bipartisan Legal Advisory Group of the House of Representatives, or "BLAG," pursued this issue is perhaps the best underhanded softball pitch I have ever received so far in the course of my legal career. (13) Let me explain why. One of the factors that courts look to in deciding what level of scrutiny to apply in an equal protection case is whether the group being discriminated against has "obvious, immutable or distinguishing characteristics." (14) In other words, do gay people comprise a distinct group or "class," and do they have a "choice" about being gay? Our adversaries sought to argue that because no one really knows what it means to be "gay," and because gay people supposedly have a "choice" about being who they are, it is okay to discriminate against them on that basis. (15)

    Really? Call me crazy, but I think it's fair to say that when someone tells you that they are gay or lesbian, we all know what that means. (16) 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. (17) 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. (18) 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.'" (19) As a result, Edie, like so many other gay men and women during that 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, and, a few months after their wedding, she told him the truth and then moved to New York City (like so many others, myself included) "in order to be gay."

    What is the relevance of Edie's first marriage? Here is what Edie had to say about it in the affidavit we submitted on our motion for summary judgment before the trial court: "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." (20) Of course she didn't. If Edie had had a "choice" about being a lesbian, she would still be married to Mr. Windsor and living in Philadelphia.

    I'm pleased to say that the Supreme Court clearly appreciated this. Here is how Justice Kennedy described the facts of Edie and Thea's marriage in his opinion for the Court:

    Edith Windsor and Thea Spyer met in New York City in 1963.... When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right.... [Concerned about Spyer's health] they traveled to Ontario to be married there.... [U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and...

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