Then Comes Marriage

by Roberta Kaplan with Lisa Dickey

ISBN 978-0-3933-24867-8

Disclaimer: I received a free review copy of this book at ALA Annual 2015. All quotes have been checked against a final copy.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right…It is so ordered.” –Justice Anthony Kennedy, Majority Opinion, Windsor v. United States

In 1967, Edie Windsor and Thea Spyer became engaged in New York. The Stonewall Riots were still two years away, and same sex marriage hardly seemed like a dream that could be achieved during their lifetimes. Yet they remained together for four decades, becoming domestic partners when New York legalized the practice in 1993, and marrying in Canada in 2007. During this period, Thea became quadriplegic due to chronic progressive multiple sclerosis, and developed a serious heart condition. When she died in 2009, because the Defense of Marriage Act recognized neither their partnership nor their Canadian marriage, Edie had to pay hundreds of thousands of dollars in estate taxes that would not have been assessed on an opposite sex spouse. Roberta Kaplan, a private attorney with significant experience litigating LGBT cases, but without a connection to the movement lawyers who were handling many of these civil rights cases, agreed to take her case.

Although Then Comes Marriage is predominantly about Windsor v. United States, it is rich in storytelling and personal touches. Lawyer Roberta Kaplan, who agreed to take Edie’s case at a time when most of the LGBT organizations were advising against federal marriage cases, had two very personal connections to Edie and Thea. In 1991, for two brief sessions, she had seen Dr. Spyer as her therapist, when she was struggling with coming out and what that would mean for her life. Seeing that her therapist was an out lesbian in a successful long-term relationship gave Kaplan hope at a time when she was still deeply closeted. But thanks in part to Dr. Spyer’s help, she went on to a legal career that included significant LGBT advocacy and litigation. Thus it was that in 2006, Roberta Kaplan lost a case that would have allowed Edie and Thea to marry in their home state of New York, rather than traveling to Canada, an arduous trip given Thea’s condition. Spyer passed away in 2009, and same sex marriage would not become legal in her home state until 2011.

Through including details about her own life, Kaplan is able to show how societal recognition is important to same sex relationships. Without knowing about Thea and Edie, she might have given up on coming out, cowed by her mother’s reaction to her first small step, which was to bang her head repeatedly against the wall after learning her daughter was a lesbian. And without the courage to step out, she might never have met her future wife, Rachel, an LGBT rights activist who started Kaplan down the road to litigating LGBT rights cases. Kaplan’s account is heartfelt and accessible, even as she describes the legal strategies and backroom arguments that shaped the case, and quotes from court transcripts. Her prose is not as elegant as that of Kenji Yoshino, the legal scholar who chronicled Hollingsworth v. Perry, the Proposition 8 case in Speak Now, which I reviewed last week, but she gets to the heart of the story much better.

Kaplan weaves together her own story of coming out with her litigation of the case, and also makes ample space for Edie and Thea’s remarkable love story, which was the subject of an award-winning documentary that was extremely successful on the independent film festival circuit. So Kaplan was deeply aware of how compelling people would find the story of their relationship, and placed that narrative at the centre of her case. In order to help keep herself and her legal team on-message as they developed briefs and oral arguments, she coined the mantra “It’s all about Edie, stupid” to keep them on track. The technical arguments had to be strong, but the indignity and unfairness of what the law was doing to LGBT couples had to shine through. And outside the courts, it is such visceral arguments about the nature of love that were successful in swaying public opinion about same sex marriage when more technical arguments about civil rights and equal protections failed to move them.

The justices in the majority opinion which overturned DOMA tried to couch Windsor in cautious terms, not daring to say outright that the door was open to same sex marriage across the country. The same day they handed down Windsor, they ruled lack of standing in Hollingsworth v. Perry in order to sidestep precisely that decision. But Justice Scalia called out the fact of the matter in the dissent, arguing that the door was indeed open, and certainly the lower courts took it that way. The morning that I was listening to Roberta Kaplan speak about this book at ALA Annual 2015 in San Francisco, the same weekend as that city’s Pride celebration, the Supreme Court released their decision in Obergefell v. Hodges, legalizing same sex marriage throughout the United States. The packed ballroom gave Kaplan a standing ovation, acknowledging the significant contribution Windsor made to the groundwork leading up to that decision. I devoured this book for the first time in the midst of that ecstatic Pride weekend, but it held up just as well to a second reading.

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