Marriage maven Max Rettig dives into DOMA with Columbia Law adjunct professor and prominent lawyer Roberta Kaplan.
“On the long road towards equal rights in this country, there are few milestones as significant as the decision in United States v. Windsor,” said JTS Executive Vice Chancellor Marc Gary in his introduction to last night’s event, “Defeating DOMA: The Changing Nature of Equality Under the U.S. Constitution.” In 2004, Gary continued, Massachusetts became the first U.S. state or commonwealth to legally recognize same-sex marriage. In 2013, when U.S. v. Windsor was decided, only 12 states allowed same-sex marriage, but following the decision, 25 more states joined. Before formally welcoming the night’s speaker to the podium, he shared a joke: “Among the honors bestowed upon Roberta Kaplan, and there are many, the one she will cherish the most is the honorary degree JTS will give her during commencement this May.”
Roberta Kaplan began by providing the context for the Supreme Court case. Edie Windsor and Thea Spyer met in New York in the early 1960s and, while in Israel in 1967, Thea pulled over to the side of a road and proposed to Edie. As Kaplan put it, this was a bold act: The couple “had the self-esteem, dignity, courage and foresight to even imagine getting engaged.” In 2007, with New York still not hospitable to same-sex marriages (a case that Kaplan herself lost), the couple married in Toronto. In 2009, Thea Spyer died of multiple sclerosis after dealing with the neurodegenerative disease for many years. She left Edie with her entire New York apartment, which Kaplan says had appreciated in value into the millions of dollars.
Because the marriage was not legally recognized in the U.S. under DOMA (Defense of Marriage Act, signed into law in 1996 by Pres. Clinton), Edie got hit with a hefty estate tax, one that she would not have had to pay if she was in a legally recognized marriage—with a man. Edie and Kaplan went to the same synagogue in New York, so it was natural that she went to Kaplan to represent her after being rebuffed by several gay rights groups. Kaplan accepted, and the case soon went to trial.
Kaplan next drew several connections between facts of the case and Jewish holidays, of which she is highly observant. Kaplan was on appeal in the second circuit court of New York when her oral argument was scheduled for the day after Yom Kippur, widely considered the holiest single day on the Jewish calendar. “Not eating, drinking or doing work is not the best idea before an oral argument,” said Kaplan. She opened the ark (the synagogue structure containing the Torah scrolls) with Edie, “a moment I would not trade for any extra preparation for the argument.”
The case moved through the federal court system and finally reached the docket of the Supreme Court. The second oral argument against the Supreme Court was scheduled for the day before Passover, also a major Jewish holiday. Kaplan requested a continuance, which the court didn’t grant, but luckily another lawyer with more clout needed one for the same reason and did get it, so not only was Kaplan able to host her planned Seder, but she also got an extra day of preparation.
Finally, it was time to go inside the courtroom. Kaplan gave the audience an auditory experience, presenting various clips of the arguments by Justices Ruth Bader Ginsburg, Anthony Kennedy (who, with this case, has authored three decisions on gay rights), and Elena Kagan. The three of them were in agreement that DOMA created a second class of citizenship in the United States that is “repugnant under the U.S. Constitution.”
Justices Kennedy, Ginsburg and Kagan were joined by Sonia Sotomayor and Stephen Breyer in delivering the majority opinion that struck down Section 3 of DOMA and earned Edie Windsor a full refund plus interest of her estate tax under the equal protections granted by the Due Process clause of the Fifth Amendment. Justice Antonin Scalia, though he delivered one of several dissenting opinions (including one of Chief Justice John Roberts), Kaplan said, believed that the logic and language of the Windsor case would lead to marriage equality in all 50 states.
With that, Kaplan opened herself up to questions, just as she did in the courtroom: “If I can handle all those questions from the Chief Justice and Justice Scalia, I hope I can probably handle them from you.”
Marc Gary opened by asking about religious objections to homosexuality vs. that of public places, like hotels and restaurants: “Why should a rabbi, priest or imam who has a religious objection to this kind of marriage have an exemption from performing or allowing a marriage, while a florist with a deep-seated religious conviction against gay marriage can be compelled to provide the floral arrangements for such a marriage?” Kaplan explained that religious practice, including marriage, is protected by the First Amendment, but that places of public accommodation, like hotels, restaurants, and businesses should never be able to deny anyone that accommodation, regardless of sexual orientation or otherwise, and regardless of what the business owner believes privately.
Among other audience members, a fellow student asked Kaplan about her thoughts on the importance of being or identifying as homosexual (Kaplan earlier mentioned being lesbian) in representing this case, as opposed to someone who does not have that same experience. Kaplan answered: “It doesn’t matter what sexual orientation, skin color, gender, or otherwise…it doesn’t matter who argues the case. But I’ve been answering gay questions all my life, so I’m used to answering those types of questions.”
She answered them with the knowledge and confidence needed to win a major case, for 2013, for now, and for well into the future.
Roberta Kaplan via The Jewish Theological Seminary