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Gay Marriage’s Legal Crusader

This week, Roberta Kaplan will try to get the Supreme Court to overturn DOMA—ratifying her marriage, too

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Edith Windsor and Roberta Kaplan at the offices of the New York Civil Liberties Union, in New York, Oct. 18, 2012. (Richard Drew/AP)
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On Wednesday, when the Supreme Court convenes to hear arguments in the second of two cases challenging the 1996 Defense of Marriage Act, the person who will stand front and center before the nine justices won’t be Edith Windsor, the vivacious 83-year-old widow whose name is on the case, but her lawyer, Roberta Kaplan, who will be fighting for federal government recognition not only of Windsor’s marriage to another woman, but of her own.

Kaplan, known in legal circles as a powerhouse corporate litigator, is one of a handful of attorneys who over the past decade have decisively shaped and driven the legal fight for same-sex marriage nationally. She lost her first major case, a 2004 suit filed by 13 couples in New York State, including a woman awaiting a liver transplant who wanted to make sure her partner of 24 years could visit her in the hospital. But because the ruling said lawmakers should be the ones to decide if the laws should be changed, it paved the way for the 2011 vote in New York’s legislature legalizing same-sex marriages in the state. Now Kaplan is hoping to win what would be a landmark national court decision by arguing that the government shouldn’t hold Windsor, whose wife Thea Spyer died in 2009 after a decades-long struggle with multiple sclerosis, liable for $363,053 in federal estate taxes she never would have been asked to pay if she’d been married to a man.

Kaplan was recruited by the ACLU to litigate the 2004 suit, which was filed after the mayor of New Paltz began issuing marriage licenses to same-sex couples, in part because she had clerked on New York State’s Court of Appeals, which eventually heard the case. Windsor came to Kaplan through a more traditional route: through mutual friends who were trying to help the new widow out of desperate financial straits.

Windsor, a Temple University graduate from Philadelphia, met Spyer, who was born in Amsterdam but who fled the Holocaust with her family and eventually came to the United States as a refugee, at a Greenwich Village restaurant called Portofino in 1963, six years before the gay rights movement was born at the Stonewall Inn, a few blocks away. The pair danced all night and, in 1967, got engaged with a diamond brooch rather than a ring—a ruse to protect Windsor, a mathematics major and rising IBM executive, from having to answer questions at work about her fiance. They moved into an apartment in the Village, bought a place in the Hamptons, and kept dancing, even after the progression of Spyer’s illness, diagnosed in 1977, left her confined to a motorized wheelchair. They were among the first to register as domestic partners in New York City in 1993 and celebrated their 40th anniversary by getting married in Toronto—a marriage that was recognized by New York State because it was legal under Canadian law. Windsor was 77; Spyer was 75. The wedding was announced in the New York Times.

But like many aging couples, the pair took a financial hit during the 2008 economic crisis, and when Kaplan went to meet Windsor, not long after Spyer’s death, she found Windsor—who could remember her family losing its home during the Depression—terrified about how to pay her mounting estate bills. “It was pretty obvious right away that this was the case,” Kaplan told me recently over pastrami sandwiches at DGS Delicatessen in Washington, D.C. “The number was so big, and the relationship she had with Thea—that was a marriage. To have and to hold.”

Kaplan, who lives near Windsor in the West Village, was in Washington to rehearse her arguments in moot court sessions before legal scholars including Stanford’s Pamela Karlan, who co-directs the school’s Supreme Court litigation clinic. She was in a court-appropriate suit with a gray top and pink pearls, but her short blond hair looked as though she’d been pushing her fingers through it as she worked.

At 46, Kaplan is the product of a different generation than Windsor. She and her wife, Rachel Lavine—a Democratic party operative whom Kaplan refers to in conversation as “my spouse”—married in 2005, also in Toronto, and had a son the following year. They are close to New York City mayoral candidate Christine Quinn and are fixtures on the Hamptons party circuit and on various nonprofit boards. The pair holds multiple synagogue memberships, though Kaplan’s primary attachment is to Jan Uhrbach, rabbi of the Conservative Synagogue of the Hamptons, who performed Kaplan and Lavine’s Jewish wedding ceremony. “I go every Saturday,” Kaplan told me. “It’s the closest I can get to meditation.”

Kaplan grew up in Cleveland, Ohio, where her father and grandfather had a roofing business. Her mother, an ardent feminist, taught women’s history at a local community college—her specialty was Emma Goldman—and subscribed to New York magazine. At her bat mitzvah, Kaplan’s parsha was Shoftim, which includes the line “justice, justice shall you pursue,” and when she arrived at Columbia for law school, she signed up for a class in Talmudic law with Rabbi Saul Berman, one of Modern Orthodoxy’s leading thinkers. It was part of a Jewish progression that had brought her—dragging her family along—from their Reform congregation to a Conservative synagogue. “I was more religious than everyone else,” Kaplan told me. As a girl, she also insisted that her parents extend the annual family Seder to focus on the lessons of the Haggadah, rather than jumping immediately to the festive meal. “I never felt the need to assimilate,” Kaplan told me. “I said, ‘Wait, you attach all this importance to this ritual, so let’s make a big deal of it.’ ”

She earned her undergraduate degree at Harvard, where she majored in Russian. She was in Moscow for her semester abroad in 1987, when the refusenik Yuli Edelstein, now an Israeli minister, was released from the gulag. “I had a sense of invincibility,” Kaplan, who says she was followed by secret police during her time in the Soviet Union, admits now. But she was quick to compare the Soviet Jewry movement just before the fall of the Berlin Wall to where she believes the marriage-equality movement is today. “Hopefully, knock on wood, it will be the same,” she said, tapping the table with her knuckles. “A lot of successes, quickly.”

Just before we met for lunch, Sen. Rob Portman, the Ohio Republican, announced his newfound support for same-sex marriage, the latest in a string of turnarounds from prominent conservatives. But when Kaplan, who is a partner at Paul, Weiss—which she joined in part because it was known for being the first white-shoe New York firm to have Jews and non-Jews practicing together—initially took Windsor on as a pro bono client, it wasn’t clear that a cultural tipping point had been reached. California voters had just passed a referendum overturning a court ruling allowing same-sex marriages in the state, and at least one gay-rights organization had declined to take Windsor’s cause. (The challenge to the California measure, Proposition 8, will be heard before the Supreme Court on Tuesday, the day before Windsor’s case.)

“She found Edie as a client, and she basically said, ‘I’m doing this case,’ ” said Jeffrey Trachtman, who litigated a companion same-sex marriage case before the New York Court of Appeals alongside Kaplan in 2006 and who authored a brief on behalf of more than a dozen religious movements and organizations, including Jewish ones, filed in Windsor’s case. “But this is the right case at the right time.”

Kaplan never imagined the issue would reach the nation’s top court so soon and with such momentum for change behind it. “I would have said it was impossible,” Kaplan told me. “It’s a momentous occasion. There would be something wrong with me if I didn’t feel that way.” She was on her way to catch the Acela back to New York for Shabbat and had specially asked a friend to make her a roast chicken as a restorative. And because the arguments are scheduled to begin just hours after the second Seder, Kaplan plans to hold a meal in Washington for her family and members of her legal team—just another Jewish scheduling quirk in the case, which was scheduled for federal appeal last fall the day after Yom Kippur. But Kaplan said she would forgo a chicken and stick with her family tradition. “It will be brisket,” she said.

***

CORRECTION, March 24: An earlier version of this story reported that Jeffrey Trachtman argued a 2004 same-sex marriage case before New York’s Court of Appeals. Trachtman worked on the litigation, but the case was argued in court by Susan Sommer of Lambda Legal.

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oaklandj says:

Great article and profile of this legal eagle. Interesting that Kaplan went from Reform to Conservative – right-wingers always claim that LGBT people are godless atheists. Nice to read a nail in that canard’s coffin.

rightcoaster says:

If one person has the right to marry another regardless of gender, why can’t two people marry one person, regardless of gender? Three? Four? Seems to me polygamy or polyandry, or any combination thereof, is exactly as justifiable as same-gender marriage, on the same human-rights grounds. Where is the flaw in that position?

    meqmac says:

    The flaw, surely, is that a polygamous or polyandrous marriage creates a deep imbalance between partners. This is visible in Sunni Muslim marriages, in the Shi’i use of mut’a/sighe temporary marriage (which creates multiple wives for men) and in the fashionable Sunni use of misyar marriage (one wife at home, another or others in another town you visit). In all these cases, the inequality between spouses is marked, divorce is common, and no-one is happy or contented. The difference between this and gay marriage is tremendous, and I’m surprised you can’t see that. It is not a case of ‘anything goes’ but of choosing what is appropriate for people, what creates the greatest harmony in human society, and what creates the most happiness. The main thing is love bolstered by legality and commitment. I’ve been married for almost 40 years (my wife and I are heterosexual), and I would never seek to deny anyone the quality of life and happiness we have. Gay people have feelings too.

      rightcoaster says:

      “Choosing what is appropriate for people” is the sort of rationale that leads to choosing hetero-only marriage as “appropriate for people”. Who is to determine what is appropriate? Our Constitution and laws provide for rights and protection for those rights. I don’t think citing Muslim religious precepts or practices is persuasive. Unreformed Jewish and Mormon religious laws also permitted polygamy, albeit not polyandry; and homosexuality is not condoned by either. If consenting adult couples may, by right, opt for homo-sexual or hetero-sexual unions, you have not provided any rights-based argument against taking an additional partner or two or three. Many hetero marriages are unequal, very much so, but in the US it is not by law or by “right” that they are so. I think the status of women in Hindu marriage is not equal in practice, I don’t have a clue what the religion, or the constitution and laws of India, have to say. Your example cites the context of Islamic law, which is trumped by US law. “Islamic republics” are likely to codify the inequalities you note; fortunately we are not living in one of them. And I’ve been married longer than you, so there!

        meqmac says:

        To some extent, appropriateness may be determined by what individuals want or need within a loose framework of the law. Western law is increasingly liberal, yet that liberality is undermined when legislation discriminates against one group or another. Polygamous marriages almost uniformly create unhappy people and are, therefore, rightly deemed to be inappropriate for those involved. They will doubtless continue in Muslim countries and within some Mormon sects, but in the West we have a right to outlaw them as legally binding relationships. Of course, individuals are free to form multi-spousal relationships outside marriage, but that carries legal risks. Gay marriage takes us beyond gay civil marriage in that it permits gay people to make deep commitments, something we often deplore as missing among non-married partnerships. In the past (and still in the present) male homosexuals have had a reputation for excessive promiscuity (as in the San Francisco bath-house culture where men often had 1000 or more partners in a year and where AIDS was spread widely). If today’s gay community wants to end the promiscuity with lifetime commitment, I think it wholly wrong of the rest of society to deplore that. We can’t make marriages happy or successful by law, but we can provide a basis for that to happen.

          rightcoaster says:

          Reads more like wishful thinking than an argument grounded in the US Constitution. If we have a “right” to outlaw some types of legally binding relationship between consenting adults (incest, polygamy, polyandry), why do we not have the same right to outlaw other other types? On what Constitutional basis could the right to marry one (or more) of one’s adult children be excluded, if the right to marry one of one’s own gender is to be included? Happiness is not a right enshrined in the Constitution (life, liberty, and the pursuit of happiness — I suspect, but cannot prove, that the Founders did not envision homosexual or polygamous marriage — is in the Declaration, not the Constitution).

    oaklandj says:

    Marriage between two people solves the problem of loneliness. Polygamy/polyandry exacerbates it.

      rightcoaster says:

      I don’t know that loneliness or its solution is at issue here — is that what the arguments before the Supremes hinge on? I thought the issue is whether any two consenting adults have a US-legal right to marry. I do not dispute the increment to happiness from such unions, I only ask how one can justify on a US Constitutional basis allowing two, and only two. It seems to me that if the right to marry whom one chooses is a “human right”, one that should be covered by the Equal Protection provisions of the US Constitution (I assume, but do not know, it is a 14th Amendment EqProt + 5th Amendment Due Process argument), it seems to me there is no rational basis for denying that right to more than two of any persuasion.

        meqmac says:

        Why, then, should we not permit paedophilic relationships, as one Dutch political party proposes? The law should work to minimize harm to human beings. In Europe and Israel, for example, we have long ago banned capital punishment, chiefly on the grounds that innocent people have died when executed before fresh forensic evidence became available. Many would argue this before the Supreme Court, as others would (rightly in my opinion) seek to ban the easy acquisition of guns by civilians in the US. We Europeans look on in horror at the results of American gun obsession, and we would urge Americans to ac t in order to prevent greater harm. It is very hard to see what the harm would be in gay marriage, yet not hard to see why polygamous marriage causes harm that is not outweighed by any possible (and generally selfish) good.

          salemst says:

          Love and consent are not the essence or basis of marriage.

          A safe and optimal child raising environment is the staple of marriage as government has a vested interest in a stable/civil society.

          Marriage also ensures a male take responsibility for his sexual proclivities providing for, caring, and protecting his wife and kids rather than roaming off.
          Incest marriage could easily be legalized. As could bisexual marriage as one could say they’re being discriminated against since they’d like a spouse of each gender. Pedophile marriage could be adopted by simply lowering the age of consent. Group marriages could be legalized again on the basis of discrimination as could Polygymous marriage.

          That then leads to the grand kickers of them all, bestial and necrophilia marriage. Instead of two parties consenting, just require one on the basis that the one is a taxpayer with rights being discriminated against.

          It’s an easy slippery slope down. Once marriage is anything other than between a man and woman, it will devolve into anything.
          Arguably, those are the unintended–or perhaps the intended consequences of the woman lawyer. Homosexuals really don’t care about marriage–they’re really about destroying all semblence of traditional values which they can’t/won’t aspire to.

          rightcoaster says:

          We do not permit paedophilic relationships because they by definition involve children, who are not of the age of consent. I suspect that is why we have many of our sex offenders here, stigmatized for life because of involvement of a person (usually a man) who has reached his majority with a girl (usually it’s a girl) who neither looked nor acted like one, and who consented before she was legally able to do so. “Jail bait” is not so called for no reason. We are not talking rape, we are talking consent by a person legally unable to consent.

          But as a European, perhaps you are at a disadvantage in sticking to the point (or to what I think is the point): What are the Constitutional issues before the Supremes, and to what precedents will they look to decide those issues. It has nothing to do with guns, nor with capital punishment.

salemst says:

How does any Jew support homosexual marriage? Clearly they worship at the altar of liberalism, not Judaism.

Clearly the lawyer cares far more about the intended consequence legalization of her chosen self-indulgent deviant aberrant abnormal behavior than the detrimental impact discriminating against kids not allowing them to have a needed mom and dad. Also, more than the slippery slope unintended (perhaps it is intended) consequence of legalization of other deviant hedonistic chosen arrangements such as pedophile, polygymous, bisexual, and incest marriages.

The one thing we can always count on with liberal Jews is in their quest for what they deem social justice equality they’ll only focus on the “noble” intended consequence of their pursuits, not the deleterious unintended consequences of those same pursuits.

They mess up society, many blame Jews as they champion this moral relativism causing societal deterioration, and it embarrasses normal minded Jews far more concerned about the state of traditional marriage recognizing it desperately needs strengthening than elevating chosen deviant behavior to normalcy.

    silverbackV says:

    Well said!

    oaklandj says:

    I could just as easily argue you take your marching orders from evangelical Christians, not Jews. Over 80% of Jews support marriage equality.

      rightcoaster says:

      Actually, salemst does raise an option I had not thought of when asking whether polygamy and polyandry are equally human rights (i.e., if any two consenting adults have a right to marry, why not any three). Salemst adds to my list, incestuous marriages, thank you salemst. A brother and sister (above the age of consent, of course), or a mother and daughter, etc., — why not, if it is a human right? Marriage to children is of course out unless you are in an Islamic Republic; children are by definition not consenting adults.

        meqmac says:

        One might add here the problem of cousin marriage, which is common in countries like Pakistan, Iran, Afghanistan, and elsewhere. It is a massive cause of birth defects and genetic illnesses that cripple rural economies and cause untold suffering to children born of such marriages. And since the girls who are entered into marriage with cousins are almost always forced, their lives are made miserable by having to live and have sex with men they may feel no affection for at all, especially when the cousins are old men.

          rightcoaster says:

          Meq, you keep bringing in irrelevant distractions. Girls forced to enter marriage are by definition not consenting adults. If they were of the age of consent, how does government guarantee they’d be happy with their choices?

          Can of worms department: There is no law in this country that I am aware of against people with serious genetic defects marrying and producing defective children, so long as those people are consenting adults, of opposite gender, and only one of each. On what legal footing would we deny the right to the production of defective children? Would we exempt people who test “properly” from the exclusion, (so that incest would be permitted if the test came out right) or would we forbid marriage if the test came out wrong, so that regardless of remoteness of consanguinity two consenting adults with the same recessive gene would lose the right to reproduce? We are beset by laws that constrain abortion rights. The latest is N. Dakota’s, which illegalizes abortions from about 6 weeks of conception.

          meqmac says:

          Cousin marriage is either banned or outright illegal in some 30 US states. Many other countries also make it illegal. In the UK, the Netherlands and elsewhere, there are moves to make it illegal. Many people who fear they may pass on genetic defects choose not to have children. But genetic effects are only part of the problem. There is a difference between cousins in the West who fall in love and marry and the situation for men and women (and girls) who have to marry cousins, to the extent that a majority of Islamic marriages are between cousins (55% in the UK, for example). These husbands and wives have no choice in the matter. To marry a young girl, even one of legal age, to a man she may not find attractive, who is decades older than her, who abuses her, whom she cannot possibly love is to condemn her (and the man, in reverse) to a life of drudgery and psychological problems. If she meets another man her own age, whom she falls in love with, she is likely to be killed if she so much as looks at him. Unless action is taken to stop this ongoing source of human misery, generations of unhappy people will struggle to find themselves, and women will never be free to be equal. None of this is irrelevant.

      Guest says:

      Appeal to authority. “Same sex marriage” does not exist in Judaism.

        oaklandj says:

        Maybe not in the Judaism you practice. It clearly does exist, though.

phroimi says:

the legal argument may or may not be won but that still does not make same sex marriage in the true sense of the word right.

spearofpinchas says:

Damn these lousy jewish dykes and lesbians, whining and screaming, and foisting their crap on the whole country! Greedy, ambitious, self righteous, they want it all– sounds like the syndrome associated with that beauty we all know too well, the jewish american princess. Of course their lingo is different, it’s all dressed up with buzz words llke faiirness,victimization, gender rights, and course my favorite, justice justice ye shall pursue. As if the great Prophets of Israel were in favor of gay marriage– what a total (and deceitful) joke! As for the jewish men who are also fighting for gay marriage, assuming they are not gay themselves, they have obviously been brainwashed by all the “progressive” uber-feminist hyperbole that has taken root among jews over the last several decades. The result? These demanding jewish bitches and their weak “menfolk” are eagerly poised to dig the grave for the traditional family, a terrible act which will without a doubt negatively impact millions of Jews and Gentiles, now and in the future, in this once fair land.

    lets see,,,, our bible spends a great deal of effort on leverite marriage,,,,,, did you

    our bible spends a great deal of time discussing jewish slaves
    our bible spends time on “the rule of Thumb’
    for those of you who don’t know what that is… you can only beat you Jewish wife with a stick no larger than your thumb…..
    and of course we have handmaidens …. a synonym for slave

    the great prophet of Israel, Moses, had a wife the high priestess of another God
    do your homework, try to learn to live like a person, a jewish person

      spearofpinchas says:

      dear hag– sorry, your comments are ridiculous. I take it you don’t like “our bible.” in the next breath, you piously say, do your homework, live like a jewish person. i.e., be a nebish and reject the bible? BTW, Zipora, Moses’ wife, was not a high priestess (where’d you get that?), she was the daughter of Yitro, who was a priest in MIdian but became a semi-convert and fellow traveler re the God and the new faith of his son-in-law Moses. See parshiot Shemot and Yitro in the Chumash.

        I don”t say anything Piously and I still think you should try to read it?

Hannah Blazewick says:

I really don’t give two cents one way or the other about gay marriage. But I thought the word crusader was considered a bad bad word. I personally think it was a great word just curious

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Gay Marriage’s Legal Crusader

This week, Roberta Kaplan will try to get the Supreme Court to overturn DOMA—ratifying her marriage, too

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