The Same-Sex Marriage Revolution: The Story Behind the Story

IMAGE DISTRIBUTED FOR HUMAN RIGHTS CAMPAIGN - Jim Obergefell is seen riding in the San Francisco Pride Parade on Sunday, June
IMAGE DISTRIBUTED FOR HUMAN RIGHTS CAMPAIGN - Jim Obergefell is seen riding in the San Francisco Pride Parade on Sunday, June 28, 2015 in San Francisco, Calif., two days after the Supreme Court's landmark decision to require that states issue marriage licenses to same sex couples. Obergefell, the plaintiff in the Supreme Court case, began his legal battle for marriage equality so he would be recognized as legally married to his late husband, John Arthur. (Adm Golub/AP Images for Human Rights Campaign)

1. Once upon a time, a young Ohio woman living in New York City sought advice from a female therapist who was in a 40 year relationship with a woman mathematician who worked for IBM. The therapist and the mathematician had been legally married in Toronto, Canada.

2. The young woman in paragraph 1 was born and raised in Shaker Heights, Ohio. She went off to college, then law school, got a job at a prestigious New York City law firm, fell in love, and married a lovely woman. Because New York State had not yet legalized same-sex marriage, this couple too was legally married in Toronto, Canada, and thereafter in a religious ceremony in Rhode Island.

3. Some twenty years ago, two young men, also from Ohio, fell in love. When one of the men became ill with a terminal disease, the devoted couple decided to marry before he died. Because Ohio did not recognize same-sex marriage, they traveled to Maryland, were legally married there, and flew back to Ohio.

How did these three disparate couples spark a change to a culture thousands of years old? Fittingly, it was an act of a mean spirited Republican-led Congress that was the Fort Sumter moment in the Same-Sex Marriage Revolution. The message? Be careful what you wish for.

Here's what happened:

In 1993, the Supreme Court of Hawaii ruled that a state law that forbade same-sex marriage likely violated the Hawaii Constitution. Back on the mainland, Congressional Republicans, who had a majority in both houses, started to foam at the mouth. They said they feared that if Hawaii courts recognized same-sex marriages, all other states would be legally obliged to do likewise. At least that's what they claimed. But the truth leaked out in September 1996, when the Republican led Judiciary Committee endorsed a bill that was an expression of undisguised bigotry. They reported the bill out, they said, as a demonstration of "Congressional disapproval of homosexuality." So the Republicans sponsored and passed the "Defense of Marriage Act". (Why my own happy heterosexual marriage needed "defense" against somebody else's same-sex marriage always befuddled me.) While many agreed with Ted Kennedy's description of the bill as "mean spirited gay bashing" designed to fire up the Republican base three months before national elections, President Clinton signed it anyway, allegedly because of the veto-proof majority in both houses and his fear if his veto were sustained, the Republicans might try to do something worse. At least that's what he said later.

DOMA basically said two things: i) no state was obliged to recognize same-sex marriages, even if legally performed elsewhere, and ii) the federal government was banned from recognizing same-sex marriages, even if legal in the state where the couple resided. The latter section meant that legally married same-sex couples could not file joint tax returns, get social security survivors benefits, estate tax benefits, ERISA benefits, immigration benefits, etc, etc. A government agency counted up over 1,200 benefits granted to heterosexual married couples that were denied to same-sex married couples.

The Republicans won the DOMA legislative battle. But as Dubbya was to learn after he invaded Iraq, posting a victory banner is not the same as winning the war.

Now lets go back and identify our three couples:

1. The therapist in paragraph 1 was Thea Speyer, and her spouse was Edie Windsor. Thea died in 2009.

2. The young Ohio woman lawyer practicing law in New York City is Roberta Kaplan, who became my partner in Paul, Weiss, Rifkind, Wharton & Garrison. She is married to Rachel Lavine.

3. The Ohio couple in paragraph 3 were the terminally ill John Arthur and spouse James Obergefell. John died shortly after the couple married.

Thea Speyer, the therapist from paragraph 1, left her entire estate to her lawful spouse Edie Windsor. The federal government nevertheless levied a $365,000 estate tax, which Windsor would not have been obliged to pay had either spouse been a man. The IRS was required to collect the tax because DOMA barred it from recognizing the Speyer-Windsor marriage, even though at the time of Speyer's death, New York recognized the legal validity of their Toronto nuptials. As required by law, Windsor paid the tax, then sued the federal government to get her money back. To do so, she retained her deceased spouse's former patient Roberta Kaplan, the young Ohio woman from paragraph 2.

Windsor, represented by Kaplan, filed her refund lawsuit in the federal courthouse in Manhattan. She argued that DOMA was a violation of her rights under the Equal Protection and Due Process clauses of the U.S Constitution. The Paul Weiss firm dedicated substantial resources to Kaplan's team. Because the Obama administration believed Windsor and Kaplan were correct, it refused to defend against the lawsuit, and the Republican dominated Congress allocated $3.5 million dollars to hire a lawyer to do so. They hired an excellent lawyer, a former U.S. Solicitor General.

Both the trial court and the appellate court sitting in Manhattan agreed DOMA was unconstitutional. Both sides asked the Supremes to take the case, and they did. And the young Ms. Kaplan got to make her arguments in all three courts.

On June 26, 2013, by a 5-4 vote, the Supreme Court struck down DOMA. While technically the Court's opinion involved only the legality of DOMA and did not reach the broader question of whether any law that banned same-sex marriage would be constitutional, Justice Kennedy's Windsor opinion spoke so eloquently of personal dignity, due process, and equal protection, that a long line of subsequent lower court decisions concluded that Windsor surely meant that any ban on same-sex marriages was an impermissible denial of individual rights preserved to the citizens by the Constitution of the United States of America.

Now to the guys in paragraph 3. After John Arthur died, the sovereign State of Ohio refused to recognize James Obergefell as his surviving spouse on the death certificate, and otherwise refused to recognize him as a surviving spouse in any capacity. Obergerfell sued. On July 19, 2013, three weeks after the Supreme Court's decision in Windsor, a lower court ruled that Ohio could not so discriminate against Obergefell.

But the Sixth Circuit Court of Appeals, in a 2-1 decision, reversed and sustained Ohio's refusal to recognize the marriage. The flummoxed dissenting judge thought that after Windsor the opposite result was so clear that the only reason she could think of for the reversal was to create a conflict in the Circuits that would encourage the Supremes to take up and finally resolve the issue. This they did, and last week we saw the result of the final battle of the revolution: Justice Kennedy, citing his decision in Windsor along with other precedents, made plain what most observers earlier recognized: Windsor meant, in the end, that all restraints on same-sex marriage were illegal. Period.

Oh yeah, now busloads of current and potential Republican presidential candidates, along with House Majority Leader John Boehner of (where else?) Ohio, are clucking and scurrying about like Henny Penny. Some people never learn.

Am I proud? Even boastful? You betcha.

A bientot.

Originally posted on Marty's Blog.