Like many LGBTQ couples, New York attorney Roberta Kaplan and her wife, Rachel Lavine, have enjoyed federal marriage rights since the U.S. Supreme Court overturned federal restrictions against same-sex marriage in 2013. The decision was especially satisfying, though, because Kaplan argued—and won—United States v. Windsor on behalf of her client, while reaping the benefits for her own family.
Eighty-four-year-old Edie Windsor, a widow, was left with more than $350,000 in federal estate taxes when her wife, Thea Spyer, passed and Windsor recovered the home they shared. While the State of New York recognized their marriage, the federal government did not, due to the Defense of Marriage Act.
Windsor challenged the act, and in 2013, the Supreme Court found DOMA unconstitutional. Kaplan, who is Jewish, believes state same-sex marriage bans violate Americans' rights as well, which is why she is leading the legal fight for marriage equality in Mississippi.
Last November, she argued in front of Mississippi's own federal judge, Judge Carlton Reeves, which led him to strike down Mississippi's same-sex marriage ban.
"The Constitution is the Constitution," Kaplan said while she argued that same-sex marriage bans violate the Equal Protection and Due Process clauses of the 14th Amendment in Mississippi's case.
Reeves agreed, writing in his opinion, "Gay and lesbian citizens cannot be subjected to such second-class citizenship."
The case currently is before the 5th U.S. Circuit Court of Appeals, which could rule any moment. Kaplan has been fighting for marriage equality since a 2006 New York case, which she lost. But her fight could come to an end soon. The Supreme Court is expected to make a ruling this year. Only time will tell what's next for the historic civil rights attorney.
Kaplan, who grew up in Cleveland, Ohio, and has degrees from Harvard and Columbia universities, spoke to the Jackson Free Press recently by phone.
Where does your passion for law and social justice come from?
Ironically enough, religious Jews have what's called a bat mitzvah when they turn 13. ... What you do at a bat mitzvah is you read publicly from the Torah, or the Old Testament, for the first time, and you read a portion. The portion that I read was Deuteronomy 16:20—it's the portion that says "Justice, justice, thou shalt pursue." So that might have had something to do with it.
My family definitely had a big impact on me. My grandmother, in particular, instilled in me the values of pursuing justice and making sure you always do what's right, and as I said it's certainly part of my religious tradition.
Tell me about your family.
I've been married for a bunch of years, and we have an 8-year-old son.
When did you get married,and what was that like?
It was on the one hand a very different world, and on the other hand not so different. We got married in September 2005, in part because we knew our son was going to come, and we wanted to get married before he was born.
This was before I lost the New York marriage case, so we hadn't yet gotten marriage in New York. That didn't happen in New York until 2011, so we had to go to Toronto—just like Edie (Windsor) did, ironically. Then we had a religious ceremony at my wife's family's house in Rhode Island a week later.
So when did you know you wanted to do this kind of work—arguing these kind of cases in the law?
As I mentioned, I had been doing work on this for a long time, and I had originally gotten involved in the New York marriage case in 2004. So from kind of 2004 on, I have been working to achieve what we're now achieving.
About the 2004 marriage case—it was unsuccessful. What do you think has changed now to where you have been very successful?
It's really very interesting, because if you go back and you look at the briefs that we filed in the New York Court of Appeals, which is the highest court in New York, in 2006, they don't look very different. The arguments don't look very different, if different at all, from the arguments that people are making today. So the arguments have not changed, really. What has changed is the ability of people to hear those arguments. And I think that's very much the result of the changes in society.
Edie answered this question best, I think, on the steps of the Supreme Court after we argued Windsor, and a reporter asked her, "What has changed?"
And she said, "Well, one day, a brave gay man got up in the morning and said, 'I'm gay.' And then another, and then another and then another, so that by now, almost every American has a friend, a family member, a neighbor, a child who's gay. And once you know and love someone who's gay, it's really almost impossible to accept the proposition that it's OK to discriminate against them based solely on who they are."
I realize this is personal work for you—
Well, it is, and it isn't. My job as a lawyer is very much to focus on my clients. When I litigated the Windsor case, it really was all about Edie. And when I litigate the Mississippi case, it really is all about the plaintiff couples and (Campaign for Southern Equality) in Mississippi. It's my job to put my stuff aside. That's not my duty as a lawyer.
However, obviously, I'm married, and I get all of the federal rights because of Windsor now. I don't want to say straight people can't argue them; that's not true. I think I have a certain sensitivity to the issues given my own personal experience.
It sounds like you try to separate them.
I think you have to. You have to argue the case the best way for the client and the best way based on the law. And I think if you let too much of your personal stuff get into it, you're kind of doing a disservice to your client and to your duty as a lawyer. However, we're all human beings—judges, juries and lawyers are all human beings. We obviously can't escape that fact, and obviously it has an impact on all of us.
Do you develop an emotional connection with your clients?
I do, but I do with all my clients. It doesn't matter if it's a marriage case or it's a case for Fitch Ratings or it's a case for Airbnb. To me, that's an important part of being a lawyer.
How do you chose which cases to take?
I'm kind of old-fashioned that way. I don't choose as much as clients come to me, and if I think they have a good case, then I take their case. So, I'm not out there really very much looking for cases to bring, but certainly since Windsor, for sure, a number of people have come to me, and when I agree with them that it's a good case and the right time, I've brought the case. Mississippi's the best example of that.
Do you think that the plaintiff or the situation in the 2006 New York case influenced the judge's decision to uphold the ban, whereas Edie Windsor's case was more convincing?
I don't think that the judges in 2006 were focused on the plaintiff couples at all. And part of the problem there was there were a lot of plaintiff couples, and if you have a lot, it's kind of hard for them to focus on any one couple.
With respect to Edie, there's just no question, I think, in anyone's mind, that the story of Edie's life, her life with Thea, and the way her life spanned the history of the 20th century, and the incredible indignity she suffered as a result of DOMA—I would be shocked if that didn't have an impact on the courts. And Justice (Ruth Bader) Ginsburg, when she said Edie was something like a perfect plaintiff, I think she appreciated, certainly, that it did.
How did you end up taking the Mississippi case?
What had happened is I had gone to Asheville, North Carolina, and given a talk there at Warren Wilson (College), and I met a whole bunch of people who were involved in Campaign for Southern Equality. Then, after the Supreme Court back in October denied cert in the cases out of the 4th, 7th and 10th circuits, they called me and said, "We think it's time in Mississippi. Will you do the case?"
Is there anything about Mississippi that makes fighting marriage equality here unique or different?
Judge Reeves' opinion talks an awful lot about that. And as I said at the 5th Circuit, you know, I'm from New York. I'm not from Mississippi, so I would defer to what he has to say about that since he, after all, has spent his whole life in Mississippi.
Did you know Windsor was going to be a successful case? Did you have any kind of feelings about it beforehand that this was the one?
I certainly thought she was the perfect plaintiff. There's no question about that. And I certainly thought when we brought the case back in 2010 that we would win in the trial court in New York and in the appellant court in New York, which is the 2nd Circuit. I think I understood at that time that a case was going to go to the Supreme Court, but you'd have to be a real gambler to assume that it was going to be our case, so I don't think I thought very much about that.
Did you have any challenges arguing Windsor?
It was my first argument ever before the Supreme Court. Not a lot of people do that. The pressure was intense, as you can imagine. I went through a long period of preparation to get ready. So, absolutely.
Where were you when you found out that you had won in Windsor?
We were here at my apartment. Edie had been told by her doctor that she couldn't travel. We were here literally sitting around the kitchen table with a bunch of people kind of on SCOTUS blog like everyone else waiting to view what they had done.
What did you do when you heard? How'd you feel?
Screamed for joy. No question about that. Some people were screaming; some people were crying. I think I was in the screaming group.
Is there anything, in your opinion, that is problematic about the language in the Windsor decision?
No. Let me think about that and give you a very long answer: no. There is nothing that is problematic about the language in Windsor. Absolutely nothing.
One thing the states have argued is that the 14th Amendment doesn't apply because marriage equality is a social issue, not a constitutional issue.
There literally is no support in either the Texas constitution or in any case that says that. If that were true, the great civil rights cases of the 5th Circuit would have come out the other way.
How do you think legalizing same-sex marriage advances the LGBT movement as a whole?
There's just no question that it has and that it does. And it's not a question of whether or not people want to get married or not. To be honest, being married is hard. It's wonderful, but it's hard. I can understand why people would make the decision for themselves personally not to get married; it's everyone's personal decision.
But the way that the law, our legal system, recognizes who someone is and who they love is through marriage. So, by obtaining equality in marriage, essentially what we've done is establish the fact that gay people are equal to everyone else. That was the crucial battle that had to be won.
There are plenty of other battles. There's plenty of other work to do out there. In some states, you can get married as a gay person. but you can be fired from your job simply because you're gay. That's totally unacceptable, obviously. So, there's other work that needs to be done, but I really do believe that (marriage equality) is the central battle.
I think it was Reeves who mentioned this—that the LGBT movement has moved more quickly than that of other groups of people. Why do you think that is?
I think it's the reason I said before. Today, almost every American knows someone who's gay. So there's an identity with the issues in a way that unfortunately doesn't exist with respect to other minorities—immigrants or other groups.
Probably everyone in Mississippi knows someone who's gay; they just don't know that they know someone who's gay. Because there's probably a lot fewer gay people in Mississippi who feel comfortable being out of the closet than there are other places.
This is where you see these tragedies with these kids, who know they're gay and are so afraid to tell their parents. That's something—I know Edie Windsor feels very strongly about this—that's something we have to fix.
How can people who are not really familiar with the law use the momentum of these marriage-equality cases to continue fighting for LGBT rights?
I think you've got to get involved. Get involved in communities. Vote when things come up. Help to organize. Elect people to public office who are on the right side of these issues.
That's definitely the way to do it. You've got to change minds and hearts—both are important.
We're so close to same-sex marriage being law of the land. What's the next legal battleground for American LGBT citizens?
The obvious one is trans(gender) stuff. There's a lot of activity in that area now. It affects a smaller percentage of the community, obviously, as well.
I also think there's going to be tons—lots and lots of issues—about people losing their jobs and stuff like that because they're gay, and that all needs to be fixed.
If a store is open and sells their goods to everyone on an open basis, then they shouldn't be allowed to say to a gay person: "You can't come into my store. You can't eat at my restaurant." That's not acceptable, so we're going to have to work on that.
What might a fight in the law for a trans person look like?
Right now, they're several years behind, so they need to establish this basic right against discrimination against trans people simple because of who they are.
What's next for you?
I have no idea. I never knew in the past, and I don't know in the future.
Do you think you might end up at the Supreme Court again?
I certainly hope so. It's kind of a dream for most lawyers to end up at the Supreme Court. I had a great time doing it, and I certainly would be thrilled. But we'll kind of have to see what the future brings.
Read and comment online at jfp.ms/Kaplan. Email Anna Wolfe at [email protected] Read the JFP's full archive of LGBT coverage at jfp.ms/lgbt.
Grew up in Cleveland, Ohio.
Lives in New York City.
Wife Rachel Lavine.
Graduated from Harvard University in 1988.
Graduated from Columbia Law School in 1991.
Named in "The 100 Most Influential Lawyers" of 2013 in the United States by National Law Journal.
Named the 2013 "Litigator of the Year" by The American Lawyer.
Named the 2013 "Lawyer of the Year" by Above the Law.
Named the 2014 "Most Innovative Lawyer of The Year" by The Financial Times.