It was the case of an older woman denied an estate tax exemption that finally brought down the Defense of Marriage Act.
The decision in the 2013 Supreme Court case Edith Windsor v. the United States of America ultimately opened the way for more states to permit gay couples to marry, and created the current judicial climate that marks the actions of people like Kentucky county clerk Kim Davis, who defied a federal court order compelling her to issue same-sex couples marriage licenses, as contemptible.
Attorney Roberta Kaplan argued the Windsor case in the nation’s highest court. She shares the back story of the case, along with her personal journey as a gay woman, in her new book Then Comes Marriage: United States v. Windsor and the Defeat of DOMA.
At a recent talk in Cambridge, Kaplan explained how she became involved with Edith Windsor and how her case spoke to the injustice of a key section in the divisive Defense of Marriage Act. While she joked that arguing before the Supreme Court was more than a little stressful, she gives credit to the watershed of outspoken support for the rights of same-sex couples to marry that brought about a shift in the considerations of the Supreme Court justices.
VIDEO: Watch the entire talk with Robbie Kaplan on Forum Network.
“I think the answer is that people came out. It’s that simple. Edie [Windsor], on the steps of the Supreme Court, said ‘One day some brave person got up in the morning and said ‘I’m gay’, and then another, and then another…That is what’s changed things,” Kaplan said. “I mean, by this point Justice Scalia says he has friends who are gay, I’m sure he does. Every justice knows someone who’s gay and that’s what’s changed their views.”
While the acceptance of gay marriage is far from resolved for some, Kaplan sees little real opposition going forward, except for isolated incidents such as the Kentucky episode involving Davis.
“The government, whether it’s state, local or federal, can’t discriminate against gay people anymore,” Kaplan said. “The truth of the matter is every judge that’s looked at the Kim Davis thing has said ‘This is ridiculous’; no state official gets to choose which parts of the Constitution they’re going to comply with.”
Kaplan went on to suggest that a similar controversy could arise from private businesses, but anticipates limited real opposition in the future.
“You will see some one-offs like a bakery somewhere who doesn’t want to bake a gay cupcake or whatever, but I don’t predict that it’s going to be a major issue. I just think that we’ve kind of settled this now,” she said.
Kaplan is pleased with the gay rights movement’s progress since Windsor, as well as further successes in the Hollingsworth v. Perry and Obergefell v. Hodges Supreme Court cases, but she pointed out that while the fundamental right to marry now extends to same-sex couples, other civil rights issues should be addressed nationally.
“Now, why we can’t have that same empathy about women’s reproductive freedom or African-American civil rights, that’s the challenge that’s facing our country,” Kaplan said.
“The truth is we have major issues in this country with income inequality, we have major issues in the country with racism, and that’s what we need to focus on in my mind, not that we don’t still have to fight these fights, but for the most part I think we’ve won them.”
Roberta Kaplan's book discussion, hosted by the Harvard Book Store, was recorded by WGBH ’s Forum Network.
