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Windsor's Lawyer Saw DOMA Challenge as 'Simple Case'
New York Law Journal
Roberta "Robbie" Kaplan and her famous client Edith Windsor followed a familiar ritual Wednesday as they waited for the U.S. Supreme Court to act on Windsor's challenge to the Defense of Marriage Act.
Kaplan had Windsor over to her Greenwich Village apartment, where the two, as they had each day the court announced opinions, sat before a computer and watched a Supreme Court blog.
On Wednesday, just after 10 a.m., they got the news they had been hoping for. Within two hours they were addressing a raucous, happy crowd at the LGBT Community Center on West 13th Street, where Kaplan told cheering supporters that a law whose "sole purpose was to denigrate gay and lesbian Americans as second-class citizens is finally dead and gone."
The decision, she said, "reminds us of why we have a Constitution to bind us together as citizens of one nation."
Windsor, 84, and Kaplan, 46, a partner and commercial litigator at Paul, Weiss, Rifkind, Wharton & Garrison, have forged a unique relationship since Kaplan took up Windsor's challenge to the Defense of Marriage Act's definition of marriage as solely for heterosexuals for purposes of federal benefits.
Edith Windsor and Roberta Kaplan, of Paul, Weiss, Rifkind, Wharton & Garrison enter a Press conference discussing the Supreme Court ruling on DOMA at the LGBT Community Center, 208 West 13th Street
"I told her, at one point, 'Now you know what it's like to be a parent,'" Kaplan said during a recent interview before the court announced its decision striking down Section 3 of DOMA. "Talking with Edie is like talking to my second mother. For me, the mother-daughter role and any lawyer role have converged."
"She sees that more than I do," Windsor said with a laugh. "But we certainly take turns taking care of each other. It's been incredible. I can't imagine how any of this could have happened without her."
Because DOMA's §3 defines marriage as exclusively between one man and one woman, Windsor was forced to pay $363,000 in federal taxes on the estate of her partner of 44 years, Thea Speyer. The pair were married in Toronto in 2007, and Speyer died in 2009. Their union was later recognized by New York state when it passed its same-sex marriage law on July 24, 2011, but not by the federal government.
On Wednesday, a 5-4 U.S. Supreme Court decided in United States v. Windsor, 12-307, that DOMA violates basic provisions of due process and equal protection. Windsor would get her money back, with interest.
Windsor explained in an interview before the court's ruling that she consulted with friends in the legal community about finding a lawyer after she ran into some resistance on the wisdom of challenging the law.
"We were disappointed because the gay organizations we contacted said it was too soon for the movement," Windsor said.
She was put in touch with a man who worked in legal placement who said he had a few lawyers who might be willing to take the case.
"The next day, Robbie Kaplan walked into my house," Windsor said. "He [the man] later admitted he had a list of one."
"It was luck that she got my name and called me," Kaplan said. "Once I walked into her apartment and met her and heard her story, yes, it took about three seconds.
"She's the perfect plaintiff. Everyone can understand in their gut what it's like to pay $363,000 in taxes," Kaplan said, "And her marriage to Thea after 40 years, anyone would want that marriage. She's brilliant, articulate and charming."
"Very early on, we both realized we had enormous respect for each other," Windsor said.
Immediately after taking the case, Kaplan called James Esseks of the American Civil Liberties Union.
Kaplan, who handled the case pro bono, had been brought into the New York same-sex marriage case by the ACLU's Matt Coles and Esseks in 2004. For the Windsor case, "it was clear to me he would be a hugely valuable member of or team and, of course, he was."
"Jim has an encyclopedic knowledge of nearly every area of sexual orientation law and he has been integrally involved in developing the strategies about heightened scrutiny that ultimately prevailed before the Second Circuit," Kaplan said.
Kaplan said the Windsor team tried to keep its legal strategy as straightforward as possible.
"Our view was always very much that it was a simple case and the issue in DOMA had to do with discrimination against gay people," she said. "There are other theories out there such as it's a form of sex discrimination based on gender. While we certainly have not disavowed any arguments that help our case…the focus has been on the statute and what's wrong with it. I think our complaint had only one cause of action."
Kaplan and Esseks first won a ruling from Southern District Judge Barbara Jones finding that DOMA violates the Equal Protection Clause because it could not survive rational basis review (NYLJ, June 7, 2012).
They then climbed the ladder to the U.S. Court of Appeals for the Second Circuit, where they won again, breaking new ground as a divided panel held that classifications based on sexual orientation should be subject to the more exacting "strict scrutiny" standard (NYLJ, Oct. 19, 2012).
In March, Kaplan made her debut argument before the high court, one day after the justices heard a challenge to California's Proposition 8 banning gay marriage (NYLJ, March 28, 2013).
"Going there the day before was great for me—I was a lot more comfortable going in the next day," she said. "I'm very glad they went first."
Her inaugural experience at the U.S. Supreme Court, Kaplan said, was a little daunting, but not for long.
"It's somewhat contradictory—on the one hand you can't help but be overwhelmed by the majesty of the place, the formality of the procedures, the gravity of this case—and it's immediately clear that every justice on the case has read everything," she said. "On the other hand, the same skills I'd been taught to use in the Southern District, in the Second Circuit or in the Commercial Division still apply."
On the Monday of arguments in March, Kaplan and Windsor celebrated Passover with a few friends.
"We had a Windsor Seder," she said. "Forty-six people at the Mandarin!"
Question of Timing
Kaplan was raised in Cleveland, Ohio, and, inspired by her maternal grandmother's strong sense of ethics, said, "I wanted to do law since I was a kid."
She has been involved in politics since high school, when she took three months off to work on the campaign of Walter Mondale in the Democratic primary in Ohio, and college, where she spent her junior year in Moscow, becoming involved with issues involving Soviet Jewry and spent time "hanging out with refusniks and dissidents."
Kaplan attended Harvard University and Columbia Law School before clerking for Judge Mark Wolf at the U.S. District Court for the District of Massachusetts and Chief Judge Judith Kaye of the New York Court of Appeals.
At the Albany court, she wrote speeches for Kaye and worked on Matter of Jacob, 86 NY 2d 29 (1995), in which the court upheld the right of a gay couple to adopt in New York.
Kaplan's litigation practice at Paul Weiss focuses on financial institutions, internal investigations, international arbitration, securities litigation, white-collar crime and regulatory defense.
She served as lead counsel for California after the bankruptcy of Pacific Gas & Electric Company during the state's energy crisis in 2001. Most recently, she prevailed on behalf of Hailo Network USA Inc., persuading the Appellate Division, First Department, to lift a temporary restraining order that had blocked New York City's Taxi and Limousine Commission's "e-hail" pilot program.
She continues to be active in politics and is comfortable with the scrutiny the Windsor case has brought. Kaplan, who is married to a woman, has long been active in gay politics in New York, and she serves on the Board of Directors of the Gay Men's Health Crisis.
In 2006, she argued before the state Court of Appeals (NYLJ, June 1, 2006) that the court should lift the ban on same-sex marriage. The court declined, and even though New York state would later become one of 12 states (now 13 following the Supreme Court's decision yesterday on the California case)and the District of Columbia to recognize same-sex marriages, the court's opinion made many people shy about the wisdom of a frontal challenge to DOMA.
But Kaplan said the ground had shifted so dramatically that the time was ripe for a challenge to DOMA, a belief borne out in 2011 when U.S. Attorney General Eric Holder said the Obama administration would no longer defend DOMA's §3 in court (NYLJ, Feb. 24, 2011).
By the time Kaplan and Esseks appeared before the Second Circuit in 2012, they were armed with an amicus brief from the Partnership for New York City, a group of more than 200 chief executives, who said discriminating against same-sex married couples was bad for business. Kaplan cites that brief as one example of how the issue, and the country, could evolve after Windsor.
"Most of Paul Weiss' clients, and many of our largest clients, were signatories to our business brief, so from a client perspective and a firm perspective, the reaction has been nothing but positive," she said.
Brad Karp, the chair of Paul Weiss, said in a statement, "We are proud to have helped our client Edie Windsor achieve this historic victory for civil rights and human dignity."
Before the court ruled, Kaplan was optimistic, anticipating that with the end of §3, "the days of 'skim milk' marriages are over for couples in 12 states and the District of Columbia and couples in those states will have full recognition."
She also anticipates progress on the issue in the U.S. Armed Forces and on the immigration front.
"The harder question will be for couples who marry in New York and move to North Carolina, which has an anti-gay marriage law. The question will be to what extent will they be entitled to benefits under federal law," she said.
"The one thing we can confidently state is that more states will permit people to marry," Kaplan said. "I think that we are living in a country where so many gay couples have full rights, there's going to be a lot of pressure on states because they won't be able to compete for high-skilled employees. People who are federalists should be pleased because that's exactly how the laboratories of the states are supposed to work."
At the rally Wednesday at the LGBT Community Center, Kaplan called Windsor "my friend and my hero" and said Windsor "is now a hero to millions of Americans," comparing her to Susan B. Anthony, Rosa Parks and Harvey Milk.
"Wow," Windsor said when she stepped to the microphone. "I'm honored, humbled and overjoyed to be here today." She thanked everyone, including the U.S. Supreme Court, "for affirming the principle of equal justice under the law."
Windsor said she prepared two speeches depending on the outcome. As for her legal team, she said, "I thought our arguments were sound and everybody else's were insane."
Later, Windsor appeared on the third floor of the building, where hundreds of supporters applauded and shouted cheers.
"Thank you all from the bottom of my heart. Now is the time I try not to cry," she said.
@|Mark Hamblett can be contacted at email@example.com.