Then Comes Marriage (37 page)

In writing our brief for the Supreme Court, I had been adamant that we never use the terms “same-sex,” or “opposite-sex,” or “homosexual,” or “heterosexual.” I believe that people who are comfortable with gay people don't refer to them using these terms. If, like so many Americans today, you have a neighbor, friend, colleague, or family member who is gay, you most likely don't refer to that person as “a homosexual.” You certainly don't refer to their husband or wife as a “same-sex spouse.”

While Justice Kennedy's opinion did, in fact, use the phrase “same-sex,” I was delighted to see that it did not include any language from the Court's prior opinions in
Lawrence
and
Romer
, which assumed that gay people were somehow different from straight people. Indeed, even in Justice Scalia's dissent in
Windsor
, rather than attacking the gay
Kulturkampf
, as he did in
Romer
, or the “homosexual agenda,” as he did in
Lawrence
, Justice Scalia reserved his ire for the other justices instead. Referring to the majority opinion as “legalistic argle-bargle,” he asserted, “There are many remarkable things about the majority's merits holding. The first is how rootless and shifting its justifications are . . . Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe.”

Justice Scalia went on to predict, as he had in 2003, that the inevitable result of the
Windsor
decision would be nationwide marriage equality in all fifty states:

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here . . . I promise you this: The only thing that will “confine” the Court's holding is its sense of what it can get away with. . . .

How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

AFTER LEARNING THAT
we had won, Edie immediately declared that she wanted to go to Stonewall, where we knew crowds of people would be gathering to celebrate our victory. But before we could think about going anywhere, the phone rang. I had a pretty good idea of who would be calling since the White House LGBT liaison, Gautam Raghavan, had asked me where we would be when the decision came down and how to reach us in case we won. “Edie,” I said, “it's for you,” handing her the telephone.

“Hello?” Edie shouted into the receiver, squinting as she tried to hear; there was obviously a lot of commotion in my apartment. “Who am I talking to? Oh, Barack Obama?” She then went on, as if getting a call from the president of the United States that Wednesday morning was the most natural thing in the world. “I wanted to thank you. I think your coming out for us made such a difference throughout the country.” A moment later, she looked upset and confused. “Oh God. I think I just hung up on the president,” she said. Fortunately, the telecommunications issue was not our fault and President Obama was soon able to call back and finish the conversation, even though he was on Air Force One on his way to Africa.

Before heading to Stonewall, we had a couple of stops to make. Edie, Rachel, Jaren, Julie, Alexia, and I climbed into an SUV and drove two blocks to the LGBT Community Center on West 13th Street, the very same place where we had first introduced Edie and her lawsuit three years before.

On that day, back in the fall of 2010, we had held our press conference in a small room with just a few rows of chairs, many of which were empty. Now the entire building was literally bursting at the seams. There were crowds of people crammed into every nook and cranny, cheering, shouting, reaching out to touch Edie, and snapping photos of us as we walked by.

I again introduced Edie to the crowd: “DOMA was the last law on the books that mandated discrimination against gay people by the federal government simply because they are gay.” Echoing Justice Ginsburg's statement from oral argument, I noted that “the days of skim milk marriages for gay people are now over.”

Edie had asked us to help prepare three different speeches for her that day, knowing that she was going to have to respond to whatever decision was handed down. One was called “Total Win,” one was entitled “As Applied” (in case the Supreme Court had ruled narrowly in Edie's favor, but did not extend its ruling to cover other married gay couples), and the third was labeled “Loss.” As Edie pulled the “Total Win” speech out of her pocket and stood in the front of the sweltering room facing a wall of cameras and reporters, she observed, “If I had to survive Thea,” she said, “what a glorious way to do it.”

Edie spoke for several minutes, and then reporters started peppering her with questions. Steven Thrasher of the Daily Beast had a great one: “Ms. Windsor, you can probably answer this better than anyone in America right now. What is love?”

“Love is a million things,” Edie replied. “What was love with me and Thea? It started with tremendous respect for each other, and with two mantras. Mine was ‘Don't postpone joy,' and Thea's was ‘Keep it hot!' ” The room erupted into laughter. Now that we had won, our three rules for the case had expired and Edie could say whatever she liked. And she certainly wasted no time in doing so.

Moving to a more serious note, and obviously suffused with memories of Thea, Edie then quoted the following lines from W. H. Auden's poem “The Prophets,” which she knew by heart:

For now I have the answer from the face

That never will go back into a book

But asks for all my life, and is the Place

Where all I touch is moved to an embrace,

And there is no such thing as a vain look.

Looking out at so many faces, I couldn't help compare the euphoria in that room with the fairly muted response to our original press conference in 2010. It was, as James later put it, “like night and day.”

We left the LGBT Center press conference and made a pit stop at Paul, Weiss to regroup. As we drove uptown, dozens of people ran up to our car to shake our hands and take photos. As Edie was walking down the hallway at the firm, she ran into Brad Karp, chair of Paul, Weiss. He immediately got down on his knees to bow before her, which delighted Edie to no end. It was a perfect symbol of the respect that Paul, Weiss had felt and accorded Edie from the very beginning.

Edie had one more place to go before Stonewall. Feeling confident in our chances, Hilary Rosen had arranged for Edie to tape an interview with Diane Sawyer for ABC Nightly News, the two women with probably the best blond bobs in all of New York City. Calling Edie an “unlikely gladiator,” Diane Sawyer asked what the Supreme Court's decision meant for her personally. Edie responded by saying that “my country is now giving dignity to this beautiful person I was with.” When asked what she would say to Thea if she were still alive, Edie responded that she would say: “Honey, it's done.”

Our next stop was Stonewall. Hundreds of people had gathered in front of the bar in the West Village, the place where the modern era of gay-rights activism began one sweltering night in June 1969 when a group of young gay men and drag queens decided to fight back against the police who had come there to arrest them.

Earlier that evening in 1969, Edie and Thea had just returned from a trip to Italy. When Edie went out later to buy some milk, she remembered the odd silence in the streets that night. Learning about the riots that had just occurred ultimately changed the way that Edie felt about the “queens,” many of whom hung out at Stonewall and who dressed flamboyantly in drag. Before Stonewall, like many other middle-class gay people, Edie had been more than a little ashamed and embarrassed by them. As she explained to Chris Geidner of BuzzFeed, “Until then, people who wanted to march and protest did it very carefully in proper suits and ties, and the women dressed in dresses. You were asked to leave if you hadn't come dressed properly. But, [the queens] existed. And they cared.” But after Stonewall, Edie justifiably saw them as heroes, and Stonewall became a special place not only for Edie but for thousands of LGBT people across the country.

Alexia tells a great story about what happened when we were driving with Edie to Stonewall that day:

When Edie and I were pulling up to Stonewall, everyone was very worried about security. Everyone was really tense and we were in this SUV with tinted windows, trying to drive close enough that we could get Edie to the stage that had been set up by the LGBT community groups without her getting run over by the crowd, and Edie kept rolling down the window to wave at people and touch people's hands. There was just so much love for her and she was so excited. I was getting increasingly hysterical about safety and it basically got to this point where she would roll down the window, I'd roll it up, she'd roll it down, I'd roll it up. It perfectly captures how gleeful we all were.

When Edie stepped out of the car, the crowd, which had packed the streets and sidewalks, went crazy. She waved her hands and blew kisses, beaming with joy as people clapped, cheered, and screamed her name. This was our hometown, after all, so there were dozens of old friends and elected officials at the rally that day who were gay or lesbian, including many (Emily Giske, Christine Quinn, Brad Hoylman, Danny O'Donnell, and Amy Rutkin) who had worked on LGBT equality for so long. But I was most touched by the fact that my friend and rabbi, Jan Uhrbach, had driven three hours into the city to introduce me. When I saw Jan there at Stonewall, I finally burst into tears myself.

When speaking that day at Stonewall, I began by noting that “the meaning of the decision by the United States Supreme Court is truly overwhelming, even for me, as the lawyer who argued the case, standing here, where so many others for so many years marched and protested and fought to get us to this very moment.” Keeping with our motto that “it's all about Edie,” I explained: “It is important to recognize that our victory against DOMA never would have happened without the tenacity of a five-foot-tall, 100-pound lady by the name of Edie Windsor. The events of this week remind us why it is that we have a Constitution—to bind us together as citizens of one nation each of whom is entitled to equal protection of the law. There is no person and no case that better demonstrates that core concept of equal protection than
Edith S. Windsor
v.
the United States of America
.”

In a perfect serendipity of the calendar, the culmination of the annual gay pride celebration in New York City was taking place that weekend. On Friday night, Edie, Rachel, and I attended a packed Shabbat service at Congregation Beit Simchat Torah, the same synagogue where Rachel and I had first met fourteen years earlier. I delivered a
drash
, or sermon, on that week's Torah portion (Parshat Pinchas; Numbers 25–30), which told the story of five brave Jewish sisters (the daughters of Zelophehad) who had challenged Moses and thereby changed Jewish law so that they could receive their father's inheritance. To a congregation of LGBT friends and allies filled with an almost unbelievable sense of joy, I explained my understanding of the importance of change within Judaism:

Perhaps the dominant view in our popular culture today is that religion, or belief in God, is inimical to the concept of change. The very idea that I, as a woman, not to mention a lesbian, am standing on this bimah talking to you tonight would be utterly inconceivable to many.

But what I hope to be able to demonstrate to you is that this is not the only way to be religious or to believe in God. The notion that Jewish law is fixed in stone, unbending and unyielding and not subject to change is simply not consistent with the story of Zelophehad's daughters. After all, it is God himself who changes his own prior rule when God sees the inherent justice in the daughters' argument.

I concluded my
drash
with the words of the great rabbi Abraham Joshua Heschel, who had escaped the Holocaust and marched with Martin Luther King at Selma in March 1965: “All it takes is one person . . . and another . . . and another . . . and another . . . to start a movement.” (When Rabbi Heschel returned to New York from Selma, someone asked him what it had been like, and he characteristically responded with poetry: “I felt my legs were praying.”)

The next night, we celebrated our victory by throwing a huge dance party in honor of Edie and Thea's love of dancing. We invited dozens of people—friends, attorneys, anyone who had supported Edie's case in one way or another. It was like the combined gay bat mitzvah/prom that none of us had ever had, with lots of food and drinks, a great DJ playing classic disco hits, and everyone dancing. The crowd even lifted James Esseks and me up in chairs amid the dancing throngs.

The next day, Sunday, June 30, the celebration continued with the Gay Pride Parade in Manhattan. Edie was the Grand Marshal. Twenty-two years earlier, on June 30, 1991, my mother had seen the New York City Pride Parade while coming to visit me at my apartment. That day, I had revealed to her my secret that I was a lesbian, and her response had not been ideal. But my mother and I had come a very long way since then. And now, on the anniversary of that incredibly difficult moment, I found myself sitting with Edie, my wife, Rachel, and my son, Jacob, in an open convertible bedecked with rainbow flags, waving to cheering, screaming, ecstatic crowds. It felt like the final, glorious moment of my own coming-out story.

JUSTICE SCALIA'S FORECAST
in his
Windsor
dissent turned out to be remarkably prescient. In the two years following
Windsor
, dozens of courts released decisions allowing gay couples to marry in states as different as Utah, Oklahoma, Texas, and Florida, all citing
Windsor
. The number of states permitting marriage equality soared from thirteen at the time of the decision to thirty-seven. By May 2015, a Gallup poll showed that a record high, or 60 percent, of Americans supported recognizing marriages between gay couples. When Gallup had first asked this question in 1996, 68 percent of Americans had been opposed to recognizing marriages between persons of the same sex. In fact, the impact of
Windsor
was so great that Harvard Law professor Laurence Tribe told a reporter, “I can't think of any Supreme Court decision in history that has ever created so rapid and broad a lower-court groundswell in a single direction as
Windsor
.”