Robin Tyler: And Then Came Marriage – United States v Windsor and The Defeat of DOMA

Noted activist Robin Tyler writes about Roberta Kaplan and her new book Then Comes Marriage, United States v Windsor, and the defeat of DOMA.

In the fall of 1959, at age 17, I told my Jewish mother that I was a lesbian. Mrs. Chernick (my mother) had sent me to the Banff School of Fine Arts in Canada to become a thespian. When I got on the train to Alberta, I immediately fell in love with another young woman from Winnipeg. Obviously, I had not heard my mother correctly.

Robin Tyler’s coming out

That summer I read a magazine called The Ladder. In it was an article by Del Martin and Phyllis Lyon who said there was nothing wrong with being a lesbian. (But think about moving to a big city immediately!) My mother and I were in the kitchen when I ‘came out’ to her and she grabbed a knife and said “Here, stab me in the heart, pour salt in the wound!” Obviously, she did not take it well. But I believed what Del and Phyllis had written, that there was nothing wrong with me. So, in 1962 I moved to NY’s Greenwich Village to meet other out and proud women. I hit the clubs and I was immediately arrested for female impersonation, but that is different story.

32 years later, in 1991, another lesbian came out to her Jewish mother. (Had I known her at the time, I would have warned her not to do it in the kitchen.) When Roberta Kaplan told her mother she was gay, her mother kept banging her head against the wall. Needless to say, Mrs. Kaplan took it as well as Mrs. Chernick.

Roberta was so closeted, that while attending Harvard, she got the reputation of being a neoconservative, reactionary homophobe because she yelled at a woman she was secretly in love with for falling for another woman! She enrolled in law school at Columbia and after graduating at age 24, she finally ‘kissed a girl.’ But Roberta was petrified of coming out publicly. She did not know that closets were ‘vertical coffins’ that suffocated those inside to death. So, in 1991, Roberta Kaplan, who was just coming out and was ‘seriously depressed and anxious’ saw a therapist for two sessions to try to get help. And that therapist’s name was Thea Spyer.

Roberta was scared of not being able to have a relationship, a family, and a normal life. But Thea said “it was possible to have a fulfilling relationship and happy life even if you are a lesbian.” And then she told Roberta about her 25-year relationship with a beautiful and brilliant (IBM math wiz) woman named Edie Windsor.

Eighteen years later, 81 year old Edie Windsor sought legal help. Thea had died of MS and although Edie and Thea had been married in Canada in May, 2007, because of DOMA (Defense of Marriage Act), their marriage was not recognized and Edie had to pay $363,053 in estate taxes. Edie went to Lambda Legal, because she and Thea had contributed to them, and a junior attorney told her it was the ‘wrong time’ for the movement. The HRC gave her the ‘cold shoulder’ and ACLU agreed with them. Mary Bonauto and GLAAD had filed a lawsuit in Massachusetts challenging DOMA on behalf of eight couples and three widowers. Mary’s strategy of attacking DOMA so soon was not exactly greeted with enthusiasm by others in the LGBT movement. Both Lambda and the ACLU took the position that Mary was moving too fast and could create bad legal precedents that would be damaging going forward.

We heard the same scripted response when my wife and I were the first to sue for marriage rights in CA in 2004. “The time is not right! We have a plan,” said major LGBT attorneys. Of course, after, they jumped in with their own clients, and we won.

Besides, the LGBT legal cabal felt that the issue of a window having to pay ‘estate taxes’ was not the issue that would defeat DOMA because Edie was “just a bit too wealthy and privileged to be the face of gay rights.” Really?

When Robbie Kaplan was called by an activist trying to help Edie get an attorney, Robbie walked four blocks over to Edie’s apartment excited to know that she was going to meet the woman whom Thea Spyer, her therapist, had told her about all those years ago. She showed Edie a video of her 2006 oral arguments the NY marriage case, which she had argued brilliantly, but had lost. (Yet several law school professors had used it in their class to teach oral advocacy.)

Edie Windsor immediately wanted Robbie to represent her. After the movement’s organizations refused to represent her, here was a major law firm willing to take the case ‘pro bono.’ (Yes, for free!)

What made Edie’s case so unique was that, unlike the gay legal organizations who represented multiple plaintiffs (Robbie kindly refers to them as a ‘diverse coalition of plaintiffs’ but I refer to them as a chorus line of plaintiffs to stand behind attorneys who wanted to be the stars), these organizations did not want to focus on the legal protections and penalties same-sex couples experienced because of a lack of Federal Recognition. They wanted to focus on smiling couples, holding hands and talking all about love, because that is what their focus groups told them people wanted to see.

The exception was the Prop 8 Olson/Boise case where two non-gay male famous attorneys, one Democrat and one Republican, got so much press themselves, that this ‘odd couple’ should have been standing together on top of the wedding cake! But they went against movement’s bad ‘advice’ and were hired to file a Federal lawsuit to overturn Prop. 8.

Robbie, this brilliant, experienced attorney did not listen to the organizations. She was an experienced litigator, and was going to win by focusing on two things.

l. Unfair taxation, which is something she felt even conservatives understood.
2. EDIE WINDSOR, EDIE WINDSOR, EDIE WINDSOR

Kaplan’s book goes into the drama, the behind the scenes struggles, the fights, the attacks, and the competition that Robbie had to endure. And that was just from our side!

This book tells all: two great love stories (Robbie and Rachel, Thea and Edie), the trial, and all the internal struggles. It was so interesting and well written that I could not stop reading it!

Robin Tyler’s fight

In March, 2013, my wife and I flew to Washington to go to the US Supreme Court to see the arguments in the Prop 8 case. We had filed a lawsuit against Prop 8 through our attorney, Gloria Allred (whose firm had won our marriage case) but we had lost the Prop 8 case in the CA Supreme Court. So we went to DC to watch the legal conservative ‘mega star’ Ted Olson, argue in the US Supreme Court.

I can’t tell you how disappointed I was. One justice referred to our movement as ‘ an experiment,’ and Olson didn’t respond. Another justice referred to incorrect negative information about children raised by same-sex couples, and Olson didn’t answer. I had thought of him as “the 6 million dollar Wizard of Odds.” But I was livid when I walked out of the courtroom. Because of the huge press buildup around this famous Republican attorney who had won case after case at this court (including Bush v Gore), I had expected more.

The next day made up for everything. I had read about Roberta Kaplan, but because Robbie wanted Edie and Theas’ great love story very public, most of the articles, as planned, were about her client. So when I watched her oral arguments. this now out, proud lesbian partner of Rachel and mother of Jacob pleaded the case with such brilliance, that there was not one thing they could get her own. Her arguments came not only from her brain, but deep down, from her soul. She painted the story of Edie Winsor and Thea Kaplan with such passionate strokes, that many of us in the courtroom, who already knew the story, sat there mesmerized and many us were crying.

A lot of attorneys had helped Robbie prepare, but when she stood up in the US Supreme Court for the first time in her career, she “hit it out of the ballpark.”

We knew this was it. We knew that this would go down in history as the case that not only brought down DOMA, but paved the way for marriage equality, which in turn will be the Trojan horse in which all of our equal rights will finally arrive.

Decades from now, when people look back in disbelief that we could have experienced this kind of discrimination, and we think of winning marriage equality, the picture that will indelibly be etched into all of our memories, is the one of Edie Winsor, almost running down the Supreme Court Steps, pink scarf flying in the wind, beside her unstoppable attorney, Roberta Kaplan, waving to the thousands of supporters, cheering them on to what became our greatest victory. And this is the picture that will go down in history. Mazel tov!

Robin Tyler has been a marriage activist since 1987, when she produced ‘The Wedding’ at the 1987 March on Washington. She and her wife Diane Olson were the first lesbian plaintiffs to file in the Case that brought marriage to CA (Tyler v State of California).

Roberta Kaplan at the LA library

Robin Tyler with wife Diane Olson and Roberta Kaplan

Roberta Kaplan signing books

ROBERTA KAPLAN’S TOUR DATES
October 2015

10/19 – Los Angeles Public Library (CA)
10/20 – Thumbtack (San Francisco, CA)
10/21 – Town Hall Seattle (WA)
10/26 – New York Public Library Live Robbie Kaplan & Gloria Steinem (NYC)
10/30 – Fridays@One – w/Edie Windsor (NYC)

November 2015

11/02 – Central Queens Y (Forest Hills, NY)
11/09 – Square Books (Oxford, MS)
11/10 – University of Southern Mississippi (Hattiesburg, MS)
11/11- Lemuria Books (Jackson, MS)

December 2015

12/13 – Congregation Shir Tikvah (Minneapolis, MN)
12/14 – Congregation Adath Israel (St. Paul, MN)

January 2016

01/12 – Weinstein JCC (Richmond, VA)
01/13 – Charleston JCC/AFFA (SC)

February 2016

02/23 – JCC North Miami Beach (FL)
02/26 – American Jewish University (Los Angeles, CA)

March 2016

03/13 – Temple Sinai New Orleans (LA)
03/29 – Washington Hebrew Congregation (Washington, DC)