Q&A: Attorney Robbie Kaplan on ripple effects of this year’s DOMA ruling

REUTERS/Joshua Roberts
Edie Windsor, left, plaintiff in the case against DOMA, walks with her attorney, Robbie Kaplan.

The Sept. 30 issue of the New Yorker carried a lengthy story about Edith Windsor, the plaintiff in the case that ended with last summer’s landmark U.S. Supreme Court decision striking down the federal Defense of Marriage Act and her lawyer, Robbie Kaplan.

Equal parts charming and compelling, the story is both a personality profile of Windsor and Kaplan and a narrative of the strategic decisions that propelled the case to the high court. Among its points: Gay-rights advocates were far from convinced that United States vs. Windsor was the right case at the right time.

Today, of course, headlines are full of cases that seek to broaden the path plowed by Windsor. In recent days a federal judge in Michigan ruled that a challenge to that state’s constitutional ban on same-sex marriage will go to trial in February.

And in Ohio, a judge issued a temporary restraining order against the state’s 2004 amendment in the case of a terminally ill man who wanted his death record to reflect his marriage, solemnized in a hospital plane on the tarmac in Maryland, so he could be buried next to his husband. The plaintiff, John Arthur, died last week of Lou Gehrig’s disease at the age of 47.

Kaplan was in Minneapolis this week to address a national LGBT conference, the 2013 Out and Equal Workplace Summit. She took time out before her keynote remarks Wednesday to talk to MinnPost. An edited version of that interview follows.  

MinnPost: Tell us what you think about the cases that have been filed since Windsor was decided. What do you see happening next?

Robbie Kaplan: Sooner or later there will be a case that gets to the court. There’s no question that at a certain point in time, either because proceeding on a state by state basis as we have been we reach an impasse because at a certain point you’re going to get down to states that just aren’t going to change, like Alabama or Mississippi. Or because earlier than that the court feels that it’s time for them to step in.

As to when that will be and which case it will be, if anyone tells you they know that, frankly they don’t know what they are talking about. There’s no way to know. There are currently I think, last I heard something like 38 cases pending around the country. It could be one of those. It could be something else. It could be another case that hasn’t been filed.

It could also be that the next issue the court takes up, which wouldn’t necessarily be a bad thing in my view, is something short of marriage. For example, there’s a case in the Ninth Circuit that was argued in September about whether you can under federal law strike a juror in a case simply because the juror is gay. I think that the Ninth Circuit is likely to say you cannot do that and the Supreme Court might take that case. There’s simply no way of knowing.

In terms of what I think will happen in the interim, before the Supreme Court gets the case, I think you’re going to continue to see more and more states, one by one by one, falling into the marriage equality camp. New Jersey is a great example.

I know that the Legislature in Hawaii is in the middle of a special session to resolve the issue. I think it’s likely that they will. There was just an argument in the New Mexico state Supreme Court, and I understand that the arguments went well. So I think you are going to see more states like that — New Mexico, Illinois, Hawaii — kind of fall into line.

MP: Here in Minnesota we had an electoral contest and then a legislative contest. Do you see either of those as favorable or more expeditious?

RK: I think it depends on the state, frankly. I think where it’s possible to get it through the legislature that’s obviously in a lot of ways the easier route. And certainly the faster route, depending on the state. If there’s a constitutional amendment in the state then the procedures you need to go through to get rid of a constitutional amendment are quite lengthy, often requiring more than one round of the legislature and maybe even a popular referendum. I think the best people to know are the people in the states themselves, and I think they are all thinking very seriously about this.

MP: Do you think this is less risky for elected officials now?

RK: Oh, no question. At the federal level I think it’s risky to be anti-equality at this point. The fact that the New Jersey Supreme Court did what it did, handed [Gov.] Chris Christie the best favor he’s ever gotten. He’s thrilled — I guarantee you he is thrilled the issue is now off of the table.

MP: I cozied up last night to the New Yorker story about you and the case and it seems that people told you how to game the system and to do this and do that, and you followed your conscience.

RK: Cozied up is the right word. I always did my conscience because that’s how I try to live both personally and professionally. But I also think, and this is true of any Supreme Court case but certainly any Supreme Court case of this magnitude, but there are 50 people with 300 different opinions about what you should do.

I don’t think it was necessarily a matter of conscience or not conscience, there were views held in good faith about what we should do, what would best maximize our chances of winning the five votes you need. We listened to everyone’s views, we heard what they had to say and then we followed the course that was right not only ethically but the best way to win the case.

MP: Do you have opinions about the cases pending in Michigan and Ohio?

RK: The Ohio case is the perfect example I think of what will be the long-lasting and profound, probably unanticipated ripple effects of Windsor. The idea that a judge in Ohio, where I believe there is a constitutional amendment, was willing to say that a couple was married for purposes of Ohio law, was extraordinary.

And I think it all comes back to the fact that in the Supreme Court’s opinion, Justice Kennedy’s opinion, he uses the word dignity something like 10 times in 26 pages. What the word dignity means in the dictionary is the quality of being worthy or deserving of respect. So he says 10 times in his opinion that gay people are equally worthy of respect as straight people.

For the Supreme Court to make that statement — there’s going to be plenty of shouting, but it’s all over but for the shouting. Because once the Supreme Court has made that statement, has accepted the fundamental equality of gay people, then everything else is going to fall by the wayside. 

MP: What was it like to be there with Edie Windsor when the decision was announced?

RK: I don’t know if I have one word for that. It was pretty incredible. Edie was at my apartment because she was unable to travel. And we were waiting to hear three things. One, we knew that of the two decisions they were announcing that day they were going to be written by Kennedy and Roberts.

And we thought that if we were going to win, it was likely that it would be written by Kennedy. If Kennedy wrote it, that would mean it would be the first decision they issued because under the Supreme Court protocol he’s junior to the chief justice. And, three, we were waiting to hear who dissented.

So when we heard one, first decision of the day was Windsor, two, opinion by Kennedy and three, Scalia was dissenting, pandemonium broke out in my apartment. That’s the best way I can describe it.

MP: How has having won this case changed your life?

RK: Profoundly. First of all, personally it’s obviously changed my life. I’m married. I was married when I brought the case but now I’m to use the words of Justice Ginsberg, I now have a full-milk marriage. So that obviously brings with it all kinds of practical benefits that are not to be taken lightly.

On top of that — and this is true for me and I think it’s true for most other gay people I’ve spoken to — even for someone like me who lived their life very openly, the degree to which the federal government’s refusal to respect our marriages and refusal to treat us equally kind of on a day-by-day basis, at least subconsciously was damaging and on a day-to-day basis was a constant reminder of the indignity that we faced, was something not even I realized until the decision came down. So I think, for me and a lot of other people, it’s kind of like 100 pounds were taken off our shoulders.

And then obviously I never thought when I was growing up in Ohio that I would ever — I never thought I would be gay, I never thought I would be married to a woman and I sure as hell never thought that I would argue my first case before the Supreme Court, win it and have it be a landmark.

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