Then Comes Marriage (15 page)

That is when I came up with a plan. Why not bring in one of the very organizations whose reaction I feared? If we had one of the major LGBT groups on our side, it would go a long way toward defusing any criticism from the others. But who could we ask?

The answer occurred to me in a flash: the ACLU. Six years earlier, the ACLU had invited me to become co-counsel in the New York marriage case, so why not return the favor now? The ACLU was obviously a major civil rights organization with significant expertise in this area. I had already worked with James Esseks, now the director of their LGBT and AIDS project, on the New York case. It seemed like the perfect fit, so in September 2010, I called James.

As it turned out, the ACLU was looking for a DOMA case. Despite the May 2009 press release asking people not to start filing lawsuits indiscriminately, two months earlier, on March 3, 2009, GLAD had already filed a challenge to DOMA,
Gill v. Office of Personnel Management
, in Massachusetts. The administrative proceeding that ultimately became the case of
Golinski v. Office of Personnel Management
, on behalf of a lesbian attorney who worked for the federal court system seeking medical insurance for her spouse, had also been filed in California, which Lambda later joined. As a result, the ACLU had decided that it too wanted to take part in a DOMA challenge. When I called James, he was immediately interested. He recalls:

I read the stuff, and I thought, “Wow. This is a great story”—and not just a great story to tell a judge, but a great story to tell America. Because this is the kind of story that people can identify with, and it will not make them scared and upset. It will get them comfortable with thinking, “You know, I wish my marriage could last 44 years, and how wonderful that she took care of her spouse as she gradually became a quadriplegic over the course of 30 years.”

The beauty of Edie Windsor's case was that her personal story was so compelling and moving that people could immediately see the absurdity of how she was being treated. Besides, if you think about it, Edie—an out-and-proud lesbian with parents who had emigrated to Philadelphia as children, a female computer programmer in her eighties who had worked her way through graduate school and who had had a four-decade relationship with a Dutch psychologist whose family had survived the Holocaust—was practically a rainbow coalition all by herself.

Unfortunately, the small cottage in the Hamptons that Edie had bought for Thea for her birthday in 1968 and their Fifth Avenue apartment where I saw Thea as a patient would lead to our first disagreement with the ACLU, soon after they signed on.

“WE WERE WORRIED,”
James Esseks says now, “about ‘How is this going to play?' ” He did not add “in Peoria,” but he might as well have. “If it plays as privileged rich lady—
boo hoo hoo
—has to pay some taxes, that is not a story that's going to move people.”

Even Edie herself had expressed similar concerns early on. “I'm not sure we should use the amount,” she told me, “because people will say, ‘She's too rich—who gives a damn about that woman and her money?' ”

The ACLU urged us not to focus on the amount of Edie's estate tax payment—even to leave it out of the press releases altogether. Yet the injury of the tax payment was the whole point of the case. We were not suing for some theoretical or abstract reason, we were suing to get Edie's money back. It made no sense to pretend that was not true. And although I understood the ACLU's concerns, from the start I did not believe the amount of money involved would really be an issue, so I pushed back.

For one thing, I argued, Edie might have been rich by the standards of middle America, but she certainly was not by Manhattan standards. She and Thea were not exactly Wall Street titans—they lived in a modest two-bedroom apartment that they had first rented and then purchased in 1986, and they had invested Thea's inheritance from her family wisely over the years. More importantly, Edie did not live differently in relation to many of the judges and the justices who might hear her case, and frankly, those were the only people we needed to persuade. I did not buy the notion that any plaintiff challenging DOMA had to appeal to everybody across America—that was just mushy “group think” that had nothing to do with the actual specifics of winning the case.

There was another simple reason why focusing on the money was the right strategy. We had a little joke in the office:
What do conservative right-wingers dislike even more than gay marriage? Taxes
. Edie could have been gay, straight, purple, or from Mars; the fact that she had to shell out $363,000 in estate taxes was sure to raise the hackles of conservatives, who hate taxes in general and the estate tax in particular. In fact, most Americans hate taxes and hate paying unjust taxes even more so. As I seem to recall, our founders had a war about this with the British a couple of centuries ago. Who in their right mind would think this beautiful little old lady, grieving the death of her spouse, should have to pay this huge tax bill simply because she's a lesbian? Fair is fair, no matter the amount of money in question.

Yet James was absolutely right about one thing: we would have to make sure the judges understood Edie's full story. We had to write the complaint in a way that would give the full context to the injury that she had suffered.

Fortunately, this was exactly what I had been trained to do at Paul, Weiss over the years. At many firms, attorneys write complaints in a spare, factual style known as notice pleading.
Plaintiff was standing outside such-and-such restaurant. It was raining. Plaintiff slipped and fell. We are asking for . . .
The goal is to say as little as possible, to simply give the other side notice of what your cause of action is.

Paul, Weiss complaints tend to be more narrative, which I prefer. I believe that the way to win cases is by truly persuading, and often the best way to do that is by effectively telling our client's story. As the associates and I started drafting the complaint, we worked closely with Edie, checking and double-checking facts. I learned the basics from the
Edie & Thea
documentary, then spent hours talking to Edie trying to get additional details. At that point, however, Edie was not used to telling stories from the early decades of her relationship, and she had a hard time thinking in terms of what might help us in our complaint. I tried every angle I could think of to get relevant information out of her, but as I would find out later, she left out some key pieces of her story.

By the fall of 2010, the complaint was ready to go. We started with Edie's story from the very first page:

The plaintiff in this action, Edith Schlain Windsor (“Edie”), met her late spouse, Thea Clara Spyer (“Thea”), nearly a half-century ago at a restaurant in New York City. Edie and Thea went on to spend the rest of Thea's life living together in a loving and committed relationship in New York.

After a wedding engagement that lasted more than forty years, and a life together that would be the envy of any couple, Thea and Edie were finally legally married in Toronto, Canada in 2007. Having spent virtually their entire lives caring for each other in sickness—including Thea's long, brave battle with multiple sclerosis—and in health, Thea and Edie were able to spend the last two years of Thea's life together as married.

We explained that, even though New York legally recognized same-sex marriages performed in Canada, Edie was still required to pay more than $300,000 in federal estate tax because of DOMA. And because of that:

Edie, now 81 years old, faces the rest of her life without Thea, with shrunken retirement savings, and with the added insult of the federal government refusing to recognize the validity of her marriage, not to mention her forty-four-year committed relationship.

That “added insult” was more painful for Edie than any financial loss she suffered. She told me, “I'm so indignant for Thea. I just want to say to them, ‘Honor my spouse. Don't turn our relationship into nothing.' ” How could the government pretend these two were nothing more than strangers to each other? Surely if people understood who Thea and Edie were, and how much they had been through together, they would see that these women deserved to be treated as a married couple.

In order to make sure the district court judge saw Edie and Thea as three-dimensional people, we dug deep into Thea's and Edie's lives, starting with their childhoods. Thea's was particularly wrenching, a history as rich and dramatic as any play or novel. She had lost her mother as an infant, and as Jews in Holland, her family had witnessed first-hand the devastation wrought by Nazi Germany. She fled Amsterdam with her stepmother as a young girl at the outbreak of the Second World War, going first to London, where her father, a Dutch soldier, later joined them just as the Nazi troops were about to invade, and then to the United States. As a teenager, she enrolled at Sarah Lawrence College, only to be expelled when a campus security guard saw Thea kissing another woman. She continued her schooling elsewhere, ultimately receiving a PhD in clinical psychology.

We went on to tell the story of Edie and Thea's meeting at Portofino, the Memorial Day weekend in the Hamptons when they got together, their engagement years before Stonewall, Thea's MS and years of quadriplegia, their domestic partnership, and finally their wedding in Toronto. In fact, we spent the first thirteen pages of the complaint simply telling Edie and Thea's story, before finally getting to the estate tax on page fourteen and the Defense of Marriage Act on page fifteen.

I hoped that the judge—we did not know who it would be until the District Court assigned one to the case—would see, through reading this story, how irrational DOMA truly was. Toward the end of the complaint, I wrote:

Congress claimed that DOMA advances the government's interest in defending and nurturing the institution of traditional heterosexual marriage . . . By failing to recognize Thea and Edie's marriage, the federal government does nothing to “nurture” the institution of marriage; rather, it minimizes and denigrates a loving, committed relationship that should serve as a model for all couples, whether homosexual or heterosexual.

As we were putting the finishing touches on the complaint, I felt good about our approach. While I was anxious to get it filed, there was one more hurdle to clear, and it would not be cleared so easily.

WHEN I INVITED
James and the ACLU to join Edie's case, he knew something I did not: he knew that Mary Bonauto and GLAD, having already filed
Gill
in Massachusetts, were preparing to file a second DOMA challenge in Connecticut with another group of plaintiffs as couples. Because Connecticut and New York are both served by the Second Circuit Court of Appeals, this meant that once our two cases moved past district court, we would in some sense be in direct competition as to which case would get decided first. And because Mary had long been the undisputed legal face of the marriage equality fight, she probably would not appreciate having to compete with another DOMA case.

James was anxious not to step on Mary's toes—in fact, he felt so torn that for a while, he couldn't decide whether to join our case at all. He kept asking me for more time to decide, which I reluctantly gave, but I would tell him, “James, the complaint is ready. We need to file
now
, because Edie's not getting any younger.” I finally told him we would love to have the ACLU as co-counsel, but that we were going to file either way. He went back and forth, and when he finally signed on, he insisted that we negotiate with Mary Bonauto about the timing of our filing.

I had not met Mary at this point in time. While I had admired her tremendously for the work she had done and considered her a true hero of the LGBT rights movement, I definitely did not want to negotiate our filing date with her. I felt sure that she would argue that it was not good for the movement to have more than one DOMA challenge in the Second Circuit, and I knew she might even ask us not to file at all so that her case could move smoothly through the court system.

But all I could think was,
Edie deserves to get her money back
. I could not, in good conscience, advise Edie to give up on the $663,000 she had paid in federal and state taxes because filing her case “was not good for the movement.” She was my client, she had put her faith in me, and I owed it to her to bring her case before the court, as I had promised her I would. I told James, “I'm not going to talk to Mary. Nothing good can come out of that phone call.” My fear was that Mary and I would get into an argument that might make the relationship difficult going forward, and I did not want to take that chance. Even if we were filing two separate cases, we were going to have to work together, so I told James that he would have to take care of this problem on his own.

At the same time, I did not want to come on as the bullish outsider, trampling all over other people's turf. To keep the peace, James and I arrived at a compromise: even though our complaint was ready to go, we would hold off filing it until Mary's was ready, too. James made the proposal to GLAD, and after an endless exchange of e-mails, everyone agreed that we would each file simultaneously on November 9, 2010.

We scheduled a press conference at the LGBT Center on West 13th Street, just a few blocks from Edie's apartment. Expecting no more than a couple of dozen people, we booked a room with just a few rows of chairs. While the
Edie & Thea
documentary had played at film festivals all over the world, Edie was still relatively unknown in New York. I could not wait to present Edie and her case to the world.

8

SOMETIMES, PRAYER WORKS

“T
hank you all, each and every one of you, for being here today,” Edie said to the twenty or so people assembled in a small, somewhat ramshackle auditorium at the LGBT Center in New York. “This case is extremely important to me, and I am grateful for your presence and support.” She was, as always, perfectly put together—dressed in a tailored black suit, purple silk blouse, and the circular diamond engagement pin that Thea had given her in 1967. From the moment she began speaking, she won the room over with her charm and dignity.