It was on June 26, 2013, that the U.S. Supreme Court handed down its decision against the Defense of Marriage Act, striking down Section 3 of the 1996 law, which prohibited the federal government from recognizing same-sex marriages.
On the one year anniversary of the decision, more than 20 courts have drawn on that reasoning to rule against state bans on same-sex marriage and the Obama administration has interpreted the decision to extend federal benefits nationwide to married same-sex couples for the purposes of taxes, immigration, employer pension and other matters.
The lesbian attorney who responsible who successfully arguing the case was Roberta Kaplan, a partner Paul, Weiss, Rifkind, Wharton & Garrison LLP. Along with the American Civil Liberties Union, she represented lesbian widow Edith Windsor, who sued the federal government because she had to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer.
Speaking with the Washington Blade via phone from California, the Ohio native said one year after the ruling she still has a hard time registering she was responsible for successfully litigating Windsor v. United States before the Supreme Court.
“I, like everyone else, wake up in morning and make myself a pot of coffee and get my son ready for school, but there’s still times when I wake in the morning or something happens like today’s decisions where I have to pinch myself,” Kaplan said. “It’s kind of amazing; I have to pinch myself to remind myself that it was me.”
And although she was denied intervention in two cases working their way back up to the Supreme Court, Kaplan said she has no doubt that the Supreme Court will rule in favor of marriage equality when one or more of those cases reach the justices.
“I don’t think anyone disagrees what it would be,” Kaplan said. “Again, we have this unique situation in legal history where there’s unanimity among judges, some of whom were appointed by Democrats, some of whom were Republicans. I expect that to continue and I expect that to continue all the way up to the Supreme Court.”
Read on for the full Q&A between Kaplan and the Blade:
Washington Blade: Have you seen the rulings today against the Utah and the Indiana bans and do you think there’s anything striking about them?
Roberta Kaplan: I haven’t had time, believe it or not, to read it. I’m in California. So, I haven’t time to read it fully yet. But I’ve seen the Tenth Circuit decision and it’s really incredible.
I always thought we’d win this issue. And I gave a speech last summer at an HRC dinner called, “The Windsor Decision: The Functional Equivalent of the Battle of Normandy.”
But I don’t think — it’s hard to put myself back in my head a year ago — I don’t think that I would have ever believed back then that the change would have happened this fast. And I don’t think that I ever would have predicted that the first circuit decision to come out was going to come out from the Tenth Circuit affirming a decision out of Utah.
So that part of it is incredible. I think the ultimate result, where we’re headed, once Windsor came out, that was a fore-ordained conclusion, but I think the speed of it has just been astounding.
Blade: So you’re surprised there hasn’t been a single court that has upheld a marriage ban since the DOMA decision?
Kaplan: I don’t know if I’m surprised; I’m certainly elated. I’m very superstitious. If you count the SmithKline en banc in the Ninth Circuit, that makes it 28. If we’re doing our math right, I think we are, there have been 28 federal or state decisions post-Windsor going on to extend rights to gay people. Every time one comes down I’m elated, and every time one comes down I have to knock on wood so that keep up the winning streak.
I can’t think of any other area in which the courts have achieved this degree of unanimity. You just don’t see it other areas of the law to this degree.
Blade: How often do you talk to Edith Windsor and how do you think she’s processed being the face of that decision?
Kaplan: I talk to Edie a lot. I saw her on Monday night. There’s Trailblazer film that’s going to be aired on Thursday. We were together Monday night. I talk to her often. She turned 85 last Friday, so we were all celebrating her birthday. I think the way she’s taken this in is just absolute and complete joy and gratitude. I don’t have to speculate because that’s what she says.
Think about it. What a way to end your life! You have this incredible moment of being the icon of the gay rights movement. And you know what? She should be.
Blade: How would evaluate the Obama administration’s implementation of the DOMA decision?
Kaplan: That’s another thing that’s truly an amazing development. When I argued the case, I got a question on this point from, I think it was Justice Alito. I gave the example that as far as a technical basis was concerned that if a couple married in New York and the moved to North Carolina, based on the technical definition in our case, [they’d] still have to pay an estate tax because under North Carolina law, their marriage wouldn’t be recognized. I didn’t anticipate then that the Obama administration would interpret some of agency statutes the way that it did.
Blade: But they determined they could not extend certain Social Security and veterans benefits to married same-sex couples in states without marriage equality. Do you think that was error and they could have read the Windsor to extend those benefits?
Kaplan: You’re talking about the two areas where they have the statutory problem? The short answer: no. I think that they’ve done literally everything that they possibly could. I think that their heart and their mind is completely in the right place, but they’re good lawyers, like I hope I’m a good lawyer, and when the statutory language says something, short of an act of Congress, they have to comply with the statutory language. Even in those two areas, it’s my understanding that they really did everything they possibly could to ameliorate the issue.
Blade: Which of the pending marriage cases do you think is the best one to go to the Supreme Court?
Kaplan: I don’t think there’s any way to answer to that question. They all raise essentially identical issues. They all have very similar plaintiffs presenting very similar sets of issues. I think that decision is up to the justice of Supreme Court.
Another thing that may come up now, I understand the Tenth Circuit issued a stay, and the stay is probably until the Supreme Court acts on cert petition that is filed. So, if the stay is going to continue I think the court should feel pressure to grant cert in that case because it’s unfair, I think, to force couples to not to be able to married without the Supreme Court decided that. It’s very possible that just by the timing of the Tenth Circuit would the issue into question.
Blade: Do you think it’s important for the Obama administration to weigh in on these cases by filing briefs or participating in oral arguments?
Kaplan: I presume that they will. Typically, the [U.S. solicitor general], in a case at the Supreme Court raising a federal constitutional issue, would weigh in. They’ve already weighed in, both in Windsor and Perry, and Perry presented identical issue to the issue now being raised, so I can’t imagine why they wouldn’t weigh in again.
Blade: The Prop 8 case has gotten a lot of attention recently. Ted Olson and David Boies are trumpeting the lawsuit as a defining civil rights case of our time. Do you think they’re justified in promoting its importance?
Kaplan: I don’t think it’s appropriate for me to weigh in…My job was and is to represent Edie Windsor and it’s not involve myself in that kind of controversy. I just don’t think it’s appropriate.
Blade: You tried to join into the Utah and Ohio marriage case, but the Tenth and Sixth circuits denied those requests. Are you disappointed that didn’t happen?
Kaplan: Well, no one like to lose. You win some, you lose some. We lost those motions. It is very unusual to get intervention granted at the circuit court, so I can’t say it was entirely surprising, but then we filed amicus briefs in both cases, and I assume we’ll continue to do so if either of them goes up. I think the issues are being extremely well covered by the advocates involved. I’m not losing sleep over it, that’s for sure.
Blade: Are you going to try again with any of other marriage cases making their way up to the Supreme Court?
Kaplan: For me, it all depends on clients. I have to have clients who want me to do it, and I had clients who wanted me to do that in the Tenth and the Sixth. I think we are actually going to file an amicus brief in the Fifth like almost identical to the ones we already filed, but it all depends on whether any clients out there reach out to me.
Blade: Have clients had those conversations with you yet?
Kaplan: Like I said, we filed amicus briefs in the Tenth and the Sixth. I think there are people who would like us to file one in the Fifth. I’m not aware of anything else.
Blade: What’s your prediction for what will happen when one of these cases reaches the Supreme Court. When did you think we’ll have a ruling on marriage equality nationwide?
Kaplan: As to the result, I don’t think anyone disagrees what it would be. Again, we this unique situation in legal history where there’s unanimity among judges, some of whom were appointed by Democrats, some of whom were Republicans. I expect that to continue and I expect that to continue all the way up to the Supreme Court.
So, I think all the judges who have reached an opinion at this point are right. I think Windsor does require there to be a recognition under the federal constitution of gay couples’ right to marry — both under equal protection and due process. I think the result is certain.
As to the timing, I think that very much depends on the inclinations of the justices, which I, at least, don’t have the ability to read. But I think the timing of the Tenth Circuit decision and whether or not there’s a stay would have a big impact on that.
Blade: Looking back a year after that decision, did you ever think you’d part of something so big?
Kaplan: There’s an easy answer to that, and that is “no.” Last summer in particular, I think for several months after, I used to kind of feel like the guy in…the paintings where the guy is kind of floating over his own body and his own life in just a state of elation. And that’s the way I felt a long time.
I went back to a normal life. I, like everyone else, wake up in morning and make myself a pot of coffee and get my son ready for school, but there’s still times when I wake in the morning or something happens like today’s decisions where I have to pinch myself. It’s kind of amazing; I have to pinch myself to remind myself that it was me.