3 Lessons Learned From Litigating A Landmark Case

PACE LAW SCHOOL — COMMENCEMENT ADDRESS OF ROBERTA KAPLAN — MAY 14, 2017

There is really only one thing that I know for sure. No one knows what life has in store for them. My client Edie Windsor sure didn’t. As a young woman growing up in Philadelphia during the Depression and World War II, she obviously had no idea what the future would hold. When asked what it felt like to be a plaintiff shortly after we filed our case, Edie remarked that it’s one thing to be “out” as a lesbian, but it’s quite another thing to be the “out lesbian who just happens to be suing the United States of America.”

The same, of course, is true for me. As a closeted lesbian in high school in the early 1980s, as a closeted lesbian college student in the mid 1980s, or as a slightly less closeted lesbian law student in the late 1980’s, if you had told me that that one day, as a partner at the Paul, Weiss law firm, I would marry a woman, have a child, and then be standing here before you this morning having won a landmark civil rights case before the United States Supreme Court, I would have told you that you were certifiably insane.

So when I received the telephone number of a then 80-year-old lady by the name of Edie Windsor, I obviously had no idea that her case would end up at the Supreme Court. In fact, Edie at first wasn’t so sure that she wanted to “hire” me. In order to convince her, I went over to her computer and played a video clip from my 2006 oral argument at the New York Court of Appeals in Hernandez v. Robles, the New York marriage case. Keep in mind that perhaps this was not the best form of attorney advertising on my part since that was a case that I lost. And it wasn’t even close, 4-2.

But fortunately, Edie was persuaded and ultimately, based on our representation of the “out” octogenarian who sued the United States to get her estate tax payment back from the IRS, the Supreme Court issued its landmark decision that gay couples have the same right to be treated with dignity and respect that straight couples do. It has been almost four years since Windsor was decided and I have had some time to reflect on the experience. So I thought I would share some important lessons I learned from litigating that case with you.

1. Facts Matter

It is worth noting that not only did I never imagine I would be standing here today, but I did not build my career to become a Supreme Court practitioner. I did not clerk for a Supreme Court justice. I did not work in the Solicitor General’s Office. My oral argument in Windsor was my first ever appearance before the United States Supreme Court. Instead, I grew up as a trial lawyer.

One of the most important lessons that every trial lawyer learns is that facts matter. They matter a lot. In fact, any litigator worth their salt knows that facts can be stubborn things. It is unwise, if not foolish, to bring or defend any case without paying very close attention to the facts before, during, and after trial.

So what did this mean in the context of United States v. Windsor? First and foremost, it meant that we knew from the very beginning, to borrow a phrase from Bill Clinton’s first presidential campaign, that it was “all about Edie, stupid.”

My view was that the best way to defeat DOMA was to tell the story of how DOMA harmed two people, Edie Windsor and her late spouse, Thea Spyer. How did we do that? We told their story as the great love story that it was. Our goal was not to write some sort of lesbian “Harlequin romance,” but instead to show that Edie and Thea, who spent 44 years together in sickness and in health till death did them part, lived their lives with the same decency and dignity as any other married couple. By showing that truth, we demonstrated that Edie and Thea had the kind of marriage that any single one of us – straight or gay – would be so lucky to have.

So what facts mattered? For one, there is the fact that when Edie was called in by the FBI for an interview when she was working for the Atomic Energy Commission in the 1950’s, she (rightfully) feared that if the FBI were to ask her if she were a lesbian, she would not only lose her job, but her entire career. I’m sure most of you cannot imagine this, but for most of Edie’s career as a computer programmer, because she was a lesbian, it would have been a felony for her to have any employment with the federal government whatsoever. Indeed, in 2014, the New York Times published a newly discovered Civil Service memo from the Johnson administration in 1964 stating that “[i]n evaluating cases of homosexuality, we automatically find the individual not suitable for federal employment.”

In addition, as you probably know from your constitutional law class, one factor that courts look to in deciding what level of scrutiny to apply to a statutory classification is whether being a member of such a group is an “obvious, immutable or distinguishing” characteristic. During the case, our adversaries argued that because gay people supposedly have a “choice” about being gay, it is okay to discriminate against them. And, believe it or not, in order to develop this argument, our adversaries asserted that Edie’s brief first marriage to a man in the 1950’s proved that she somehow had a choice about being a lesbian. The facts, however, demonstrated that she did not.

Here are the facts. Years before Edie met Thea, shortly after she graduated from Temple University, she married a guy by the name of Windsor. He was the best friend of Edie’s older brother. Edie’s husband and her brother both served as soldiers together in World War II. Edie already knew that she was attracted to women. But, as she explained in her own words: “In the context of the homophobia that was so prevalent in the 1950’s, I certainly did not want to be a “queer.”” As a result, Edie, like so many other gay men and women of that era, agreed to get married. It did not take long though for Edie to realize that she couldn’t love her husband the way he deserved to be loved. So a few months after their wedding, she told him the truth and then moved to New York City “in order to be gay.”

What is the real relevance of Edie’s first marriage? Here is what Edie had to say about it in an affidavit: “What my [first] marriage … shows is that although I tried to make a ‘choice’ about my sexual orientation by getting married to a man, I was simply unable to do so. Thus, as a matter of fact, I really had no choice at all.”

As someone who teaches advanced civil procedure, I feel fully qualified in saying that one of the paramount advantages of our legal system is that while often time-consuming and expensive, there is no better mechanism for discovering facts and learning the truth. So in a world where many are decrying “fake news,” keep in mind that as of today, you will now be able to use these important tools to discover the truth. That is both a great privilege and a great responsibility.

2. The Law Matters

Of course, the law matters too. On the one hand, this seems obvious. After all, what did you just spend the last three years of your life studying? In the context of our case, just look at all the concrete harms that de jure discrimination caused to so many gay people for so many years.

Justice Kennedy used the word “dignity” 10 times in his 26-page opinion for the Court in Windsor. According to the Oxford English Dictionary, the word “dignity” means “the state or quality of being worthy of honor or respect.” Sometimes, it’s the simplest and most obvious things that say the most. The “state or quality of being worthy of honor or respect” is exactly what the Windsor case was all about. Once the Supreme Court had recognized that gay people and their relationships have dignity and are equally “worthy” of respect under the Constitution, the Court’s decision in Obergefell two years later mandating marriage equality nationwide was practically inevitable. Indeed, in Obergefell itself, Justice Kennedy used the word “dignity” another 10 times, concluding his opinion by noting that the plaintiffs in that case asked “for equal dignity in the eyes of the law. The Constitution grants them that right.”

3. Dignity Matters

This sense of inherent dignity that animates the Supreme Court’s jurisprudence in Windsor and Obergefell is not necessarily limited to people. Like my client Edie Windsor, principles and institutions like the United States Constitution, the Rule of Law, and the Presidency itself have their own sense of dignity. Those of you who read the Above the Law blog may have seen a post about a speech former Fourth Circuit Judge Michael Luttig gave at the graduation of the University of South Carolina law school earlier this month. In that speech, Judge Luttig proclaimed that “we in the legal profession are the stewards and guardians of the Rule of Law – the foundation of civilized society and the guarantor of liberty. If this sounds as if the lawyer holds a special place in the constitutional order that is our democracy and that we are weighted by an almost-sacred responsibility, it is because we do and we are.”

Although Judge Luttig delivered that speech before the events that have taken place in Washington, D.C. over the past several days, it is even more urgent now. As former Justice Kennedy law clerk Joshua Matz has written on his Take Care blog, while the “President has the raw power to fire the FBI Director, . . . valid exercises of power can still create constitutional crises and threaten rule of law values.” The stability and strength of our system necessarily depends not only on the written words in the Constitution, but on a whole series of unwritten norms, conventions and understandings that must be respected in order for democracy and the rule of law to be preserved.

It is far too easy in today’s world of constant tweets (even from the President), Facebook posts, or talking heads, to simply give up and become cynical – to assume that it’s all part of one big inside game and that nothing in Washington D.C. or anywhere else for that matter gets decided on the merits, but instead is motivated by other, less principled reasons. I’d like to offer Windsor and Obergefell as an antidote to the kind of corrosive cynicism that sadly seems to be so appealing to so many. What Windsor and Obergefell mean is that courts matter. What Windsor and Obergefell mean is that the United States Constitution and the rule of law matter. And what Windsor and Obergefell mean is that what we do as lawyers every single day really, really matters a lot.

It is surely no exaggeration in these uncertain times to say that it will be up to you to resist any and all attempts to denigrate our core constitutional values or the rule of law. One of the great Hasidic rabbis, Rabbi Nachman of Bratslov, taught his followers that: “All the world is a very narrow bridge. And the main thing to remember is not to be afraid.” So like Edie Windsor, be brave. Be yourself and be true to yourself. Even if you lose a case, or two, or three along the way (as I did), persist. Keep walking across that narrow bridge with as much courage as you can muster. You are about to enter the noblest of professions. Take on clients and cases because you know in your mind and in your heart that it is the right thing to do. As far as I can tell, that is what this crazy condition of being both a human being and a lawyer is all about.

Earlier: Supreme Court Shortlister Turned General Counsel Calls Out The Court (Plus Presidents And Congress Too)

---

David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].</st