The following is adapted from remarks by Roberta Kaplan at the LeGal dinner event on March 24.
What I’d like to focus on in memory of my beloved mentor Judith S. Kaye is her personal commitment to the equal dignity of all persons under the law, including LGBT people. I feel qualified to do so because I was lucky enough to serve as Kaye’s law clerk at a time when she was called upon to decide what may well be her most significant gay rights opinion in a case that would fundamentally alter the lives of gay people and their families—including, ultimately, my own. Gloria Steinem and other feminists of her generation used to say that “the personal is political.” It is hard to imagine a better example of that adage’s truth than the story I am about to tell. It is a story that was known only to a few people until I told it in my book last October, something I only did, I want to add, with Kaye’s explicit permission to do so.
The case that came to the court toward the end of my clerkship was called Matter of Jacob and it was about adoption. Under New York law at that time, any person married to a biological parent could adopt his or her spouse’s child as a stepparent. If you weren’t married, however, you could only adopt your partner’s child if your partner’s own parental rights were terminated. So, for unmarried couples, either straight or gay, there was no way to create a two-parent family short of marriage. And because marriage equality seemed like a faraway pipe dream for gay people back in the 1990s, this meant that gay and lesbian couples could never both be legal parents to their own children.
I was confident that Kaye would vote for the non-biological lesbian mother’s ability to adopt given her dissent in Alison D. only a couple of years before, but I was not sure whether she knew just how personal my own interest in this case was. I was so deeply closeted back then that I had only told a few people with whom I worked that I had a girlfriend, and Kaye was definitely not one of them. Because she was roughly the same age as my mother and my mother had had a difficult time accepting the news when I came out to her, I was terrified that Kaye would have the same reaction. As I later learned, Kaye not only had no idea I was gay, but would not have cared if she did. But that is the problem with being in the closet—you are always afraid that your secret will be exposed.
Oral arguments in Matter of Jacob took place on June 5, 1995. The next day, the seven judges voted, and the split was close, 4-3, but with Kaye voting on the losing, three-judge side.
Typically, after a vote is taken, the court hands down its opinion within a few weeks, and certainly by the end of the session later that summer. As Kaye’s law clerk, my job was to help her write her dissent, but I refused to accept a decision going against the lesbian couple since I knew it was wrong both as a matter of constitutional law and as a matter of family law, where the widely-accepted standard is “the best interest of the child.” So I asked Kaye if she could arrange to have the case held over to the following session in the fall, which was pretty much unprecedented at the New York Court of Appeals. Amazingly, she agreed, and took the incredibly brave step of holding the case over the summer recess. And then we went to work.
One judge on the court, Howard Levine, had served as a Family Court judge in upstate New York, and he seemed to be the judge voting on the other side who was most likely to switch his vote. Kaye and I really believed that Levine wanted to vote our way, but he just hadn’t yet found the right way to do so. I started hammering away on a somewhat obscure technical point about interpreting statutes to avoid constitutional concerns even if no constitutional claim had been raised or preserved by the parties and talking with Levine’s law clerk, a close friend of mine named Alicia Ouellette, as often as possible.
In August, more than two months after the initial 4-3 vote, I received a call in Kaye’s New York City chambers from Alicia. We’re on board,” she told me. “Congratulations. Chief Judge Kaye is now writing the majority opinion.” I started yelling and screaming, sounding like a completely crazy woman in a sober business suit. At the time, Kaye was having a meeting with a bunch of Appellate Division judges in her conference room, and one of them, clearly surprised by the noise in the office next door, asked her, “What in the world is going on?” “Oh, don’t mind that,” Kaye replied. “That’s just my law clerk, Robbie.” Although Kaye had no idea what I was carrying on about, she knew it was good and that I would tell her soon enough. When I did, she too did a little victory dance and I knew that my deep respect and love for her was well-founded. For the first time ever in New York, gay and lesbian partners would be free to adopt each other’s children, giving their families desperately needed legal protections.
Always the expert legal craftsman, the way that Kaye framed the question in Matter of Jacob provided the answer: “Under the New York adoption statute, a single person can adopt a child. … Equally clear is the right of a single homosexual to adopt. … These appeals call upon us to decide if the unmarried partner of a child’s biological mother, whether heterosexual or homosexual, who is raising the child together with the biological parent, can become the child’s second parent by means of adoption. …” As Judge Kaye explained, “[t]o rule otherwise would mean that the thousands of New York children actually being raised in homes headed by two unmarried persons could have only one legal parent, not the two who want them.”
Ironically, Kaye’s opinion in Matter of Jacob actually says very little about the rights of gay people; instead, it focuses almost exclusively on the rights of their children. The truth is that, in 1995, we never would have gotten the fourth vote we needed by arguing for gay rights. At that point, most people did not believe that gay people deserved the same rights as straight people, although Kaye certainly did. As a result, she needed to make a different argument, essentially explaining that these kids were being born whether society liked it or not, and that it was obviously in their best interest to have two parents, rather than one.
If Kaye had not made that courageous decision to hold Matter of Jacob over to the next session, I can say for sure that the decision would have come out the other way. On a personal note, I would not have been able to adopt my own son, who is coincidentally also named Jacob. But that is not all. Historical events have all kinds of mysterious, unknowable connections. I can confidently say today that without the reality of gay families with parent and children living their lives throughout the United States, including so many in New York, we never would have won U.S. v. Windsor in 2013 or Obergefell v. Hodges in 2015.
After all, as U.S. Supreme Court Justice Anthony Kennedy explained in Windsor, one problem with DOMA was that “it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
When someone very close to us dies, we all have regrets about things that were left unsaid. One of the many that I have about Kaye is that I didn’t keep track of the many times that she told me how proud she was of her decision in Matter of Jacob. I am not exaggerating when I say that she must have brought this up with me dozens of times, including on June 26, 2013 when I called her shortly after getting a copy of the Supreme Court’s decision in Windsor. Kaye always understood how important Matter of Jacob was to the momentous LGBT equality victories that were to come. Indeed, in this respect, she did get one thing very wrong. In her widely-cited dissent in the New York marriage equality case in 2006, she predicted that she was “confident that future generations will look back on today’s decision as an unfortunate misstep.” With respect to that forecast, she was uncharacteristically inaccurate—it did not take “generations,” or even one generation, it only took seven years.
I last spoke to Kaye approximately five days before she died. I had been told that she wasn’t doing well and I wanted to reach out. True to form, she adamantly refused during our conversation to talk about herself or her medical condition. So what did she want to talk about? Amazingly, we spent most of our conversation talking about an upcoming case in which the Court of Appeals would have yet another opportunity to overrule Alison D., turning another one of Kaye’s dissents into controlling law. Kaye, focusing as always on the factual and legal details of the case, made it very clear how much she wanted that to happen.