The DOMA Destroyer: Attorney Roberta Kaplan's New Book Tells Story Behind Legal Battle For Same-Sex Marriage

In 2013, during the months leading up to the landmark Supreme Court case of United States v. Windsor, octogenarian Edith "Edie" Windsor was arguably the oldest poster child this country has ever seen for any major social cause. Called the "Rosa Parks of the LGBT rights movement" by many at the time, the diminutive Windsor and her case for securing equal inheritance rights for surviving same-sex spouses would end up striking down Section 3 of the so-called Defense of Marriage Act and give momentum to the fight for national marriage equality.

Windsor's attorney, Roberta Kaplan, chronicles the entire struggle in her new book, "Then Comes Marriage: United States V. Windsor and the Defeat of DOMA." It tells the story of the case that ultimately brought marriage equality before the United States Supreme Court in one of this country's most significant civil rights victories.

Having served as co-counsel for New York State's unsuccessful 2006 bid for marriage equality, Kaplan was determined not to lose with Windsor's case. She coined the maxim "It's all about Edie, stupid" to constantly remind herself and her team what the case was really about, and that refrain aptly describes the book itself.

EDGE spoke with Roberta Kaplan about the road to the Supreme Court, the immediate aftermath and current battles religious groups are fighting against LGBT rights.

EDGE: How has life changed for you since that ruling?

Roberta Kaplan: In one sense, it has changed phenomenally; in another sense, it has not changed at all. Obviously, although I didn't emphasize it during the case, I am a married gay person whose family was impacted by DOMA, so getting rid of that statutory indignity had a huge impact on my family -- not just for practical reasons, like filing joint taxes, but for our dignity as well. We had that stamp of disapproval removed. In another sense, nothing changed, because while a lot more people know me as the lawyer representing the lesbian who sued the USA, I still have to get up every day and make breakfast for my son and pick up the dry cleaning.

EDGE: DOMA said that for purposes of federal law, a marriage between a same-sex couple was null and void. Why did you reject that definition?

Kaplan: The DOMA case was easy because it was about states that already decided to reject DOMA, like New York, which decided to enact marriage equality. Given that gay couples had legally married in several states, this case was arguing whether it was OK for the federal government to treat those marriages as though they never happened. That's why it was the perfect first step toward marriage equality, because it established that principal as far as the Constitution was concerned.

EDGE: You lost your first battle for marriage equality in New York in 2006. Why did you choose to refocus the narrative on one couple rather than several?

Kaplan: The lesson I learned is if you focus on six or seven couples, the facts of those couples' lives fade into the background, and it tends to become a fight between pundits on MSNBC and Fox rather than a fight about real people and their lives. In the Windsor case, all people focused on was one couple, and because of that were able to zero in on the incredibly powerful, poignant facts of their life together, and understand that their lives were the same as everyone else's.

EDGE: When Windsor's partner, Thea Spyer, died, the government tried to make Windsor pay $600,000 in inheritance taxes, after the two had been together for 44 years and had gotten married in Toronto. Why did you know in your gut that this was unconstitutional?

Kaplan: The legal principles are very complicated: the 5th and 14th Amendments mean you have to be treated equal under the law, and if the government treats different groups differently, they have to have a good reason. With respect to DOMA, there was no good reason that justified treating our marriages as invalid except fear, prejudice or discomfort with gay people.

EDGE: You filed the Windsor case in 2010, a year after Windsor's partner passed away. Why did you feel that Edie Windsor was the right face for this struggle?

Kaplan: I think a big part of it was the life she lived and their 44 years together. Thea had MS for many years and was essentially a quadriplegic. Talk about "in sickness and health, 'til death do us part" -- few Americans would be lucky to have this life. Then Edie herself was intelligent, articulate, charismatic and not bad looking. On top of that were the facts of Edie's life before she met Thea: the FBI interview, where she was petrified they'd ask if she was a lesbian; the way she had to live in the closet while working at IBM. We thought this would be a compelling story about the kinds of discrimination gay people experience, and why that's wrong.

EDGE: You argued that the reason to remove DOMA was the changing moral values of the nation, with people realizing that gay people and their relationships are no different than straight people. Why do you think this argument was so effective?

Kaplan: Because the legal issues weren't complicated. What had to change was the perception of gay people. The legal arguments haven't changed much in past 20 years, but the attitudes changed -- and the justices had to hear them, because now everyone knows someone who's gay and sees their life is the same as everyone else's. Once you know and love someone who's gay, it's hard to see them treated differently under the law.

EDGE: Securing marriage equality was also part of your personal narrative. You had your own partner and child that you needed to protect. How does this book tell your story?

Kaplan: It tells a part of the story that wasn't part of case, deliberately. It's my duty as a lawyer to represent my client only; my life is not a part of the case. However, when I started to write the book, it became clear to me that there was no way to tell the story without telling my own personal story. Because it's not only a legal and constitutional change, it's a story of personal change and how America has changed. I couldn't tell that without telling how I had changed in my life, how the world was so very different when I was in college than it is today.

EDGE: The June 2015 ruling in Obergefell v. Hodges holds that the right to marry is guaranteed to same-sex couples due to the Due Process and Equal Protection clauses of the 14th Amendment. Yet people like Kim Davis in Kentucky still denied marriage licenses to same-sex couples. Explain to readers how this was allowed, and what we need to do to stop this?

Kaplan: I don't think it's coincidental in any way that every single judge including the Sixth Circuit looked at the argument Kim Davis is making that she should get an exception and rejected it. It makes no sense under the law; it's totally invalid, and the judges agreed. This is America, after all. We have some time for a one-off where people decide they can take the law into their own hands and interpret the Constitution how they want. Fortunately, the Constitution doesn't allow that. I think it will work itself out, because gay couples are already getting married in the county where Kim Davis was a clerk. In one sense, this was a gift because she brought forward the weakest possible argument for religious freedom, because she was a public servant. But it's also narcissistic: she is enjoying her five minutes of fame. But it's not about her -- it's about the Constitution.

EDGE: What about religious freedom laws? How do we balance people's right to religious freedom with private businesses' potential to discriminate against the LGBT community and others they don't like?

Kaplan: Again, I think it will be less of issue than people worry about. Rulings in Windsor and Obergefell made it clear that that no government office can discriminate. Businesses often come up, but no successful business in this country wants to be in a position where the store manager can decide not to serve a gay family. It's un-American; it's not the way we do things. There is little appetite in the business community for laws that do that. Certainly there is lots of smoke, bells and whistles, but in the end, it will probably all settle down faster than many people think. We're not going back to the era of Jim Crow.

EDGE: So, we have gay marriage, but in many places LGBT people still don't even have basic civil rights. You are currently fighting one such case in Mississippi, against a law banning gays from adopting kids. Your hearing is set for November 6. What is at stake here, and what results are we looking for?

Kaplan: Mississippi is the last state in the country with a law on the books that treats gay people differently than straights. We filed a case saying their law is incompatible with Windsor and Obergefell. We have a hearing in front of the judge on November 6, and I'm pretty confident we'll win this case, because there's no good argument on their side. Hopefully we'll get a ruling that says gay people can adopt in Mississippi, just like the other 49 states.

EDGE: As we go forward, what is the next civil rights battle our community must face? What would you like to see the LGBT community mobilize around?

Kaplan: I think we're going to see plenty of activity on Restoration of Religious Freedom issues. We do an excellent job of whack-a-mole and fight them back, and obviously the transgender community is making some progress, but they still aren't at the same position gay people are, and that needs to change. What we really need to focus on is that all members of our community are not economically fortunate: many homeless youth come out as gay and are kicked out, and that's unacceptable. And then we need to focus on the epidemic that is AIDS, which is a plague for many poor people in this country and throughout the world who don't have access to meds. We have to work to stop that.

For information or to buy the book, visit books.wwnorton.com/books/then-comes-marriage.