“Fuck the Supreme Court!” Edith Windsor said, one hideously hot morning in June, when she’d had just about enough. Then she sighed and mumbled, “Oh, I don’t mean that.” What she really meant was that she was hot, she was tired of waiting, and, most of all, she was tired of being told what to do. “I’m feeling very manhandled!” she said.
It was Windsor’s eighty-fourth birthday, and she was spending it staring at a laptop screen as information from scotusblog.com flashed by in a typeface too small for her to read comfortably. Four years earlier, Windsor’s partner of more than forty years, Thea Spyer, died, leaving Windsor her sole heir. The two were legally married in Canada, in 2007, but, because of the Defense of Marriage Act, Windsor was not eligible for the exemption on estate tax that applies to husbands and wives. She had to pay $363,053 in taxes to the federal government, and $275,528 to New York State, and she did not think that was fair. So, with the help of her attorney, Roberta Kaplan, Windsor sued the United States. “When I saw it in print on the brief—Edith Windsor v. the United States of America—for a moment I panicked,” she said. “Then I thought, If Robbie’s not terrified, I’m not terrified.” But the waiting was getting to her. Once, when Spyer was alive, Windsor attended a meeting with the head of the Human Rights Coalition, at which someone asked him about gay marriage. He replied that it was something that ought to be dealt with later. Windsor stood up and barked, “I’m seventy-seven years old, and I can’t wait!”
Windsor first sought representation for her suit in 2009; she approached a number of gay-rights organizations. “I was told it was the wrong time for the movement,” she said. So a friend of a friend introduced her to Roberta Kaplan, who had been co-counsel on the (unsuccessful) case for marriage equality in New York State in 2006 but usually works at the furthest extreme from gay-rights non-profits. As a partner at the corporate law firm Paul, Weiss, Rifkind, Wharton & Garrison, she has numbered among her clients J. P. Morgan Chase and Fitch Ratings. Kaplan is a vigorous, highly assertive forty-seven-year-old, who wears a Rolex and drives an Audi. (Recently, she took her wife, Rachel Lavine, and their seven-year-old son, Jacob, to Yellowstone, on her way back from a conference in Montana. I asked if they had camped out. “Yes,” Kaplan said. “At the Four Seasons.”)
When she took on Windsor’s case, pro bono, she made some rules for her client. For example, Kaplan instructed Windsor not to talk publicly about sex—a subject on which Windsor is exceptionally colorful and voluble. “All I needed was Antonin Scalia reading about Edie and Thea’s butch-femme escapades,” Kaplan told me. And now, during this maddeningly humid week when the Court was expected to announce its ruling, Kaplan was requiring Windsor to come over every morning to the large apartment she shares with her family, so that, when the ruling was finally handed down, attorney and client would be together and ready to face the press and the public right away.
Kaplan likes to say that in her relationship with Windsor they take turns being the mother. On this morning, Windsor was playing the part of a recalcitrant teen-ager. “Why am I here?” she fumed. “I could watch at my apartment.”
“No, you’ve got to be here,” Kaplan said firmly, jogging her leg up and down as she watched her own computer screen. It was too loud over at Windsor’s building, around the corner, where the façade was under construction, Kaplan said. “I’m sorry, Edie. I worked really hard on this, and you’ve just got to be here!” Kaplan was frustrated, too. She rubbed her forehead. “This is worse than waiting for a jury,” she said.
The first ruling of the morning was announced. It made it harder for the details of a prior conviction to be used against a criminal defendant in federal sentencing. The next decision had to do with the Federal Arbitration Act. Finally, the Court ruled on a First Amendment case pertaining to organizations receiving government funding. There was no mention of Windsor’s suit, which meant that the vigil would start again the following Monday. “If we have to go through this every day next week, I’ll kill myself,” Windsor said.
Kaplan put her head down on her forearms and moaned. “I’ve got to take up smoking or something,” she said.
“This is driving her nuts, and she’s driving me nuts,” Windsor grumbled, after we’d left to walk the four blocks to her apartment, on lower Fifth Avenue, where Windsor and Spyer had lived since 1975. They first met at a restaurant nearby, called Portofino, where Windsor went because she heard that, on Friday evenings, it was full of lesbians, and she was desperate to meet some. “Men got my message,” Windsor told me. “In the straight world, I was perceived as this sexy being. But with women?” She shrugged. When she first came out, she went to gay bars nearly every night, where she would smoke cigarettes and dance with other women, who were usually unsatisfactory partners. “Lesbians can’t lead,” she said, shaking her head sadly. At Portofino, Spyer, a graduate student in psychology with an arresting face and a frisky self-assurance, had come with a date. “She always had someone,” Windsor said.
Windsor—whose maiden name was Schlain—grew up in Philadelphia, where she married her older brother’s best friend. “He was exactly what most girls wanted,” she wrote in an affidavit for her case before New York’s Southern District Court. “He was big, handsome and strong, yet sweet. I think that if I had been straight,” she added, he would have been “the love of my life.” But she feared that she was not, even before she married him. “Anytime I would see two women walking on the street on a Saturday night, I would be so jealous,” she told me. She got divorced in 1952, less than a year after her wedding day.
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Windsor had graduated from Temple University, and after her divorce, at the age of twenty-three, she decided to move to Greenwich Village and pursue a master’s in mathematics at N.Y.U., where she took her first computing classes. She applied for a job as a research assistant, programming an eight-ton univac computer for the U.S. Atomic Energy Commission. The job required a high security clearance, and Windsor received a letter from the F.B.I. requesting an interview, which terrified her: she felt certain that the agents would question her about her sexuality. It was not technically illegal to be gay, Windsor learned as she prepared for her interview; instead, it was illegal for people of the same gender to dance close together; it was illegal, in many states, to engage in gay sex (and remained so until the Supreme Court’s 2003 ruling, in Lawrence v. Texas); and it was illegal for women to dress in men’s clothing, and vice versa—butch lesbians and drag queens were the first targets for the police who regularly raided the bars that Windsor was starting to frequent in the Village. “So I went to the interview in high heels and a dress with crinolines,” she said. As it turned out, the F.B.I. was really only concerned about her sister’s friends in the teachers’ union. Windsor passed the interview and got the job.
In 1958, she was hired at I.B.M., where she began programming a computer that occupied an entire city block in Chelsea. Windsor worked her way up to senior systems programmer, the highest technical ranking at the time, and one that only a few women attained. “I loved every aspect of the computing business,” she said. In her apartment, there are photographs of Windsor at her office from that era, looking purposeful and intensely chic in a minidress, at a meeting with a pencil in her hand.
Windsor is still perfectly put-together: she has long nails, which she polishes with the same pale, iridescent lacquer she’s used for decades, and she often wears a long strand of pearls to match. Her hair is platinum blond—Clairol No. 103—and she keeps it in a carefully blow-dried bob, with the ends flipped under; supporters have created a purple T-shirt with an image of her coiffure and the words “I’m with Edie.” She’s had that style for many years, but, when Spyer was alive, Windsor flipped the ends up, because, she said, “Thea liked it that way.” (Windsor is only slightly less aesthetically loyal than a woman to whom she is often compared: Rosa Parks, who said, in 1980, “I never cut my hair because my husband liked it this way. It’s a lot of trouble, and he’s been dead a number of years, but I still can’t bring myself to cut it.”) Windsor has an impressive figure, for a woman of any age—very trim and very buxom. She told me, “If I didn’t have nice breasts, Thea and I never would have gotten together.”
They ran into each other at parties after that first meeting, and they would always dance together: “First lesbian I ever met who could actually lead!” In a video taken near the end of her life, Spyer says, “We immediately just fit—our bodies fit.” But she also says that, at the time, “I wanted to play the field. Definitely, that was the plan.”
Windsor, however, was smitten almost immediately. One weekend, she heard that Spyer was going out to the Hamptons and would be dropping someone off at the home of some lesbians she knew. Windsor called them and said, “I know this is presumptuous, but, please, can I come stay with you?” While everyone else went out dancing, she waited up all night for Spyer to arrive—she finally showed up the next afternoon. “I said, ‘Is your dance card full?’ ” Windsor recalled. “She said, ‘It is now,’ and I grabbed her and then we made love all afternoon.”
They began dating, but Spyer remained elusive throughout their first year. “She’s a pain in the ass!” Windsor said. “She calls me sometimes and sometimes she doesn’t. She breaks dates. Things like that.” Then, the following summer, they rented a house together on Long Island. “It was a big deal,” Windsor told me. “I don’t come from people who could afford vacations so easily, O.K.?” Spyer, on the other hand, was born in Amsterdam to a wealthy Jewish family of pickle manufacturers, whose fortune allowed them to flee Holland just before the Nazis invaded. “I think she dug me sexually that first year, but I don’t think she wanted me as a life partner,” Windsor said. “She had been with a lot of very wealthy, very white girls.” Windsor was something else: animated, industrious, and ferociously passionate. “I never wanted anybody inside me till Thea. And then I wanted her inside me all the time.”
They both loved travel and adventure. Their first trip was to Suriname; Spyer chose it because it was Dutch-speaking and she hoped to impress Windsor by talking with the locals. They went all over Europe with half a dozen enormous coördinating suitcases. On a trip to St. Thomas, just after they moved in together, Windsor said, “I bought all the stuff I thought you need for a nice Jewish home.”
She grew excited remembering their arguments. “We had a major difference from the start, having to do with how you resolve stuff,” she said. “Her thing was, You talk it out right here and now. And my thing was, Everything I say makes it worse, so I’m not going to say anything! I’m going to bed.” One night, she walked out of a fight through the flimsy door that separated the living room and the bedrooms. “I go out the door—and she threw a book! Now, she waited until I was out the door, but the book went through the door. I got red paper and I made a big heart and I covered the hole, so when she got up in the morning she wouldn’t see it.”
Windsor said that she’d wanted children “desperately—that was the hardest thing about letting myself be gay.” But parenthood was unthinkable for homosexuals, and, furthermore, Spyer was a psychologist working in a field that told her that her sexual orientation was a mental illness. “I don’t know if you know how strict the Freudians were,” Windsor said. “We both believed that’s not fair to the kid.” Marriage was impossible, too, but, in 1967, Spyer knelt down and proposed anyway. Though Windsor was very friendly with her colleagues at I.B.M.—“My buddies!”—she hid her sexual orientation at work. Instead of an engagement ring, which would prompt questions, Spyer gave her a pin, a circle of diamonds.
In 1969, they took a holiday in Venice. They returned on June 28th, and, as they came in from J.F.K. in a taxi, they noticed that the Village was eerily quiet. Windsor left the apartment to buy milk and bread. “I went down to Christopher Street,” she recalled. “And there were a lot of cops and a very strange kind of feeling.” In the early hours of the morning, the police had raided a bar owned by the Genovese crime family called the Stonewall Inn, where cops often caught people dancing too close in the wrong kind of clothing. But this time the gay people fought back.
Things were still perilous for homosexuals in this country two decades later, when a young lawyer named Mary Bonauto—whom Kaplan thinks of as “the Thurgood Marshall of our movement”—started working at Gay and Lesbian Advocates and Defenders (glad), a public-interest firm serving New England. Bonauto, a serious and soft-spoken woman from a Catholic family in upstate New York, was immediately approached by couples who wanted the freedom to marry, but she turned them down. “The idea that ‘I need to marry my partner’ seemed fanciful, even sort of crazy,” she said. “There were so many obstacles to overcome before you could even have a rational conversation about it.” Bonauto was occupied with hate crimes and flagrant discrimination that made it hard for gay people to simply exist in the world. “Being an openly gay person in the legal system in the early nineties, it was still kind of like you had three heads,” she said. “People were so offended that I could sue them for discrimination: some gay person?”
On about a dozen occasions throughout the seventies and eighties, gay-rights advocates had filed lawsuits addressing marriage, each time without success. But in December, 1990, three couples filed applications for marriage licenses in Hawaii, and, when they were denied, sued the state. In 1993, the state Supreme Court ruled that, in order to continue denying marriage licenses to gay couples, Hawaii would have to establish a “compelling state interest” before a trial court. Sexual orientation would be subject to the same legal standard, known as heightened scrutiny, that applied to cases of gender discrimination.
Opponents of gay marriage were galled and galvanized. “The prospect of permitting homosexual couples to ‘marry’ in Hawaii threatens to have very real consequences,” the House Committee on the Judiciary warned in a 1996 report recommending a bill called the Defense of Marriage Act. doma would define “begetting” as “the meaning and purpose of sexuality,” and marriage as “a relationship within which the community socially approves and encourages sexual intercourse” for the purpose of procreation. Marriage was configured as a reproductive institution, with only incidental import for infertile people, old people, and people who simply did not wish to be parents. The committee plainly announced a “moral disapproval of homosexuality” that was shared by the majority of the country: only forty-four per cent of Americans thought that homosexual activity of any kind should be legal. (To emphasize that moral disapproval, the authors of the report protectively buffered the word “marriage” in quotation marks whenever it followed the word “homosexual.”) During the congressional debate on the bill, one representative referred to homosexuality as “inherently destructive”; another spoke of “hedonism, narcissism, depravity . . . and sin.” doma was signed into law in 1996 by President Bill Clinton.
“You’ve got to be kidding me,” Bonauto remembers thinking. “Our relationships are so heinous that the government of the United States has to defend itself against them?” doma, she said, was “an invitation, an incentive, to discriminate.” It was also an unusual—even unique—federal intrusion: for hundreds of years, marriage law had been determined at the state level. So Bonauto began planning an offensive in the states she served at glad. “I was hoping for an arc like we saw with interracial marriage, where the California state Supreme Court became the first to invalidate an interracial-marriage ban, in 1948, and then, nineteen years later, that court is vindicated when the U.S. Supreme Court strikes down all interracial-marriage bans.” During those years, people began to encounter interracial couples, and the country incrementally advanced its understanding of African-Americans as full citizens. Public opinion changed as marriage bans were struck down, state by state, creating legal precedents that fed the Supreme Court’s decision. “I think about it as building blocks, and, brick by brick, building this structure of equality,” Bonauto said. “When does the Supreme Court step in? When the discriminatory states are outliers—when they are not the locus of law and opinion in the country. But someone had to be first.”
Bonauto thought that Vermont was a good candidate. In 1997, glad co-filed a suit that made it to the Vermont Supreme Court, which, in 1999, ruled in the plaintiffs’ favor, and ordered the legislature to devise a solution. Soon afterward, Vermont introduced the country’s first civil unions. Gay people were now separate but equal in one state: an enormous victory, if still far from the ultimate goal.
Bonauto and her colleagues in the gay-rights firms knew that public opinion mattered as much as judicial action: the rulings in Hawaii were effectively undone in 1998, when voters passed a constitutional amendment banning gay marriage. Movement advocates had to convince people—straight and gay—that marriage equality was fair and necessary, by making the case for it everywhere they could: bar associations, Rotary clubs, colleges, churches and synagogues, labor unions.
The House report on doma described a “persistent reluctance by some within the gay and lesbian movement to embrace the objective of same-sex ‘marriage.’ ” The charge was accurate. In 1990, when the Hawaii plaintiffs first sought representation from the Lambda Legal Defense and Education Fund, the oldest national gay-rights organization, it would not take the case—despite the objections of an attorney named Evan Wolfson, who went on to develop the group’s Marriage Project. “At that point, the resistance to marriage was divided between two camps,” Wolfson, who ultimately worked on the case after Lambda relented, said. “One was strategic and one was ideological.” Some gay-rights advocates felt that it was too soon to push for marriage, and that the protections and rights it insured (there are more than a thousand) were better pursued piecemeal. Another vocal contingent felt that marriage was undesirable altogether, because it was “heteronormative”—imitative of a straight way of life that failed for heterosexuals half the time. “Since I’ve been out, I’ve enjoyed freedom from marriage,” the activist Bill Dobbs told me, in 1999. There was value, he argued, in gay relationships proceeding according to their own rules, without the straight world’s assumption that intimacy is either lifelong and monogamous or it has failed. Not everyone liked the idea of relinquishing the outlaw status of gay life. The director John Waters used to say, “I always thought the privilege of being gay was that you didn’t have to get married or go into the Army.”
Bonauto smirked at this. “I’m just enough of a student of history to be impervious to that,” she said. It has always been better for a group to be different by choice than to be discriminated against by law. In 2001, she and glad represented a group of seven same-sex couples seeking marriage licenses in Massachusetts. With the landmark ruling in Goodridge v. Department of Public Health, in 2003, the Massachusetts Supreme Judicial Court made that state the first to allow gay couples to marry. “There were ferocious attacks to try to pull Goodridge out of the ground,” Bonauto said. “There were five lawsuits. Governor Romney was against us. The President came forward to denounce us.” George W. Bush proposed an amendment to the Constitution of the United States banning same-sex marriage. “It was a national effort to destroy us—that’s how it felt, and that’s how it was. This little beacon of equality, and people wanted to snuff it out. But when we got to May 17, 2004, and people started marrying, there was an outbreak of joy. It made an enormous difference, and other people were inspired.”
That year, Roberta Kaplan joined the A.C.L.U. in representing thirteen couples who sued New York State for the right to marry. Kaplan had been enlisted because early in her career she had served as a clerk for Judge Judith Kaye, of the New York State Court of Appeals, which would decide the case. But Kaplan and her colleagues were unable to persuade the court, which, in 2006, ruled against the couples. Kaplan seems never to have quite forgiven herself. She often jokes that, because of her loss in New York, it is her fault that Edie Windsor and Thea Spyer had to schlep all the way to Toronto to get married—which was a challenge for them, because at that point Spyer had lost the use of her legs and her right arm.
In 1977, when Spyer was forty-five, she was given a diagnosis of chronic progressive multiple sclerosis. At first, the only ill effect was that she had to walk with a cane. Next came crutches, which made it more difficult for Spyer and Windsor to travel. (There is a picture in Windsor’s bedroom of Spyer being helped up a hill in Jerusalem by some female Israeli soldiers, looking not at all unhappy.) Finally came the chair. “The idea of going to a wheelchair—that’s something that got to me,” Spyer says in a documentary that Susan Muska and Gréta Ólafsdóttir made toward the end of her life, called “Edie and Thea: A Very Long Engagement.” “Here I am, quadriplegic, not much is moving,” Spyer says, smiling gamely. “The only thing that’ll bring me to tears—the only thing—is dancing.” She goes on, “When we’re at parties or anything, anybody asks Edie to dance, she doesn’t do it.” Instead, Windsor would sit on Spyer’s lap, in her motorized wheelchair, and they would zip around the dance floor.
Windsor had retired from I.B.M. after sixteen years, hoping to travel more. She became Spyer’s caretaker. “It was a pleasure,” she told me, one afternoon in Southampton, at the cottage she bought in 1968 as a birthday present for Spyer. It’s a small, modern house, with shingles on the outside and a clean, blue pool in the back yard, where they used to have a mechanized sling to lower Spyer into the water. Windsor swam with her every day in the summer, holding Spyer’s hips up and encouraging her to paddle in the water, which rendered her body buoyant, restored. In the back bedroom, a track was still up on the ceiling. It used to be attached to a mechanism that helped Spyer into bed at night. It also facilitated their sex life, which never became any less important to them. Whenever Windsor is asked by a fan about the secrets to a long marriage, she always replies, “Don’t postpone joy,” and “Keep it hot!”
As Spyer became increasingly disabled, Windsor would put an oxygen mask on her every night before she got into bed, the last step in a two-hour process that was necessary in order for her to sleep safely. Windsor helped her to defecate when her body became too weak. “Honey, there’s no orifice I didn’t work in, O.K.?” Windsor told me. But she doesn’t like it when people talk about that period as if she were some kind of lesbian Florence Nightingale. “I was never her nurse—I’m her lover!” Windsor said emphatically. “I was just doing things to make her comfortable—and that was with loving her and digging her. I don’t know if I glorify it.”
They had a van customized for Spyer’s wheelchair, and Windsor had only recently sold it. In its place, she bought a brand-new burgundy Volvo convertible with a white leather interior, and she took me out for a joyride, demonstrating a wildly relaxed relationship with stop signs. We went to the beach, where the light was hard and silver on the sea, and Windsor wore a straw hat at a jaunty angle to keep the sun off her face. They would come here when they first got the house and walk up and down the beach, inviting all their friends to parties. “We owned Memorial Day,” Windsor said. Another lesbian couple owned the Fourth of July. Gay people rarely reared children then, so they had lots of friends without curfews, and did lots of socializing all summer long.
Some of the parties were benefits for the gay-rights groups in which Spyer and Windsor became increasingly active, like the East End Gay Organization, and Services and Advocacy for G.L.B.T. Elders. After the L.G.B.T. Community Center opened in the West Village, in 1983, Windsor did computer programming free. “They had some killer bugs,” she recalled. When Windsor and Spyer hosted, the parties were opulent, recalling the privilege of Spyer’s youth: “Pâté, shrimp with two sauces, and lobster à l’Américaine for sixty lesbians!”
One night, when Windsor was walking around her house in a pair of leopard-print underpants, drinking a small glass of vodka—the only alcohol she’s not allergic to—she found a picture of her wedding, in Toronto, the last trip she and Spyer took together. “We had two best men and four best women, all of whom had assignments,” Windsor said. They needed to help Spyer get on and off the plane, to take apart and reassemble her wheelchair. “I couldn’t put a ring on Thea without someone holding her hand out,” because Spyer was no longer able to lift it herself.
They ran a wedding announcement in the Times, and, Windsor said, “Literally hundreds of people—from all stages of our lives—wrote to congratulate us!” Windsor’s friend Larry Josephson, who left I.B.M. in 1966 to start a radio show on WBAI, told me that he didn’t know that she was gay when they worked together. “I don’t know if anyone knew,” he said. “A group of alumni gather a few times a year to have lunch, and at the last one I asked some of the senior managers what I.B.M. would have done if they had found out. I couldn’t get an answer.”
Even after forty-two years together, being married felt different. “ ‘Marriage’ is a magic word,” Windsor said on the steps of City Hall at a rally for marriage equality, with Spyer at her side in her chair. “Thea looks at her ring every day, and thinks of herself as a member of a special species that can love and couple ‘until death do them part.’ ” The only drawback to being married was that well-meaning people would refer to Spyer as Windsor’s “wife.” In a butch-femme couple, there can be only one long-nailed lady of the house, and that was Windsor. “Every time somebody calls her my wife, I am furious,” Windsor said. “Robbie used it once, and I said, ‘Look, you can say she’s my spouse. Or you can say nothing. But you cannot say she’s my wife. It’s a fucking insult to her!’ ” As Spyer’s body failed, she had to relinquish aspects of her role. She hated not being able to carry grocery bags or heavy packages inside from the car—it upset her so much that she couldn’t watch Windsor doing it.
“Mostly, she was incredibly able,” Windsor said. Spyer saw patients in her home office until the last day of her life. “At the very end, Thea was in the middle of dying, I knew we were in terrible trouble, and I looked up and I always had a sign that had the number for the hospice on it, but one of the aides had moved it. The last thing Thea said to me was ‘Edie, I know the number.’ And she told me the phone number. By the time her hospice nurse got there—and he practically flew—she was gone.” Windsor said that she was happy with the way Spyer died, on February 5, 2009: at home, comfortable, loved.
“The worst thing, the hardest thing, was years before, the day she could no longer put her arm around me,” Windsor recalled, looking out the sliding glass doors at the still surface of the swimming pool shining in the dark. “That broke my heart.”
Tacked up on Windsor’s wall is a poem by Donald Hall, called “Ardor,” which she happened to read the week after Spyer’s death:
A few weeks later, Windsor had a heart attack. “Broken-heart syndrome,” she said: stress cardiomyopathy. “This is very common for spouses, especially people with bad hearts, after they lose their spouse.” It was followed by a second, more serious attack. Lying in the hospital, she felt that she was finished. “I said, ‘Send me home. I don’t care if you’re sending me home to die. I had a great life. I can’t imagine what I’m going to do with the rest of it.’ ”
But then something unexpected happened. The documentary “Edie and Thea” started getting attention from film festivals—in San Francisco, in Iceland—and people began asking Windsor to come and speak. She found herself revived. “Barcelona was wonderful!” she said. “And Hamburg was unbelievable—Hamburg has the most incredible lesbian population probably in the whole world. There are a million of them!” Windsor grinned. “If you have to outlive a great love, I can’t think of a better way to do it than being everybody’s hero. Suddenly I’m exalted, instead of being this goofy old lady, which is what I feel like.”
Windsor knew she owed hundreds of thousands of dollars in taxes. “I did a couple of things immediately: I took the car out of the garage, because I don’t need a car in the city, and that saved more than four thousand dollars a year.” She started liquidating investments. “They were all municipal bonds at five and six per cent,” Windsor said, grimacing. “If I get all the money back, I could only invest it at, like, half of one per cent now!” Windsor was well aware that she wouldn’t have had any of these financial concerns if her spouse had been a man. It felt as if she were being taxed on her gayness.
Windsor turned to the gay-rights organizations for legal representation, but she didn’t get the response she had hoped for. “We were longtime supporters of Lambda, and they wouldn’t return my phone calls at first!” Windsor told me.
In public appearances, Windsor has said that, unlike the other firms and lawyers who ignored her, “Robbie Kaplan knew there was no wrong time for justice.” But, as Kaplan acknowledged to me, “That’s a little bit bullshit—this was the right time.” In 2008, New York courts ruled that they would recognize same-sex marriages that were legally conducted out of state. “If she had asked me before there was marriage recognition in New York, I don’t know what I would have said.” The groundwork had been laid, and Kaplan knew that she had found the right plaintiff.
“When you’ve got an appealing litigant, it makes you want to side with them,” Michael Klarman, a professor at Harvard Law School and a former clerk for Ruth Bader Ginsburg, said. “Of course, you are deciding a case for a much broader group of litigants, so it ought to be irrelevant, but it’s not. With school desegregation, the N.A.A.C.P. accepted only plaintiffs who were middle class, from the best families, well educated, well dressed. When the American Jewish Congress was thinking about school-prayer challenges, they much preferred a Jew to an atheist.”
Rosa Parks told an interviewer in 1956, “I was not the only person who had been mistreated and humiliated.” On March 2, 1955, a fifteen-year-old student named Claudette Colvin was dragged off a bus in handcuffs by the Montgomery police when she wouldn’t give up her seat. But E. D. Nixon, the head of the Alabama chapter of the N.A.A.C.P., and other local civil-rights leaders determined that Colvin was the wrong face for the movement. “Colvin was seen as ‘feisty,’ ‘uncontrollable,’ ‘profane’ and ‘emotional’ by some community leaders,” Jeanne Theoharis wrote in “The Rebellious Life of Mrs. Rosa Parks.” After paying the Colvin family a visit, “Nixon decided Colvin was not the kind of plaintiff they wanted and pulled back from pursuing her case.” By contrast, when Nixon heard, a few months later, that Rosa Parks, his N.A.A.C.P. colleague of many years, had been arrested for refusing to relinquish her seat to a white passenger, he said, “I believe Jim Crow dropped in our lap just what we are looking for.” Here was a plaintiff with all the right credentials: “middle-aged, religious, of good character, known and respected in the community for her political work, and brave.”
Edie Windsor is not religious, but she had an equivalent quality of unassailability in the longevity of her relationship with Spyer. Indeed, the fact that she was a widow provided insurance against the greatest liability a couple could bring to a doma challenge: Windsor and Spyer could not break up during the court battle. And, just as it was possible to present Parks as a quiet seamstress who was simply too weary to stand—when in fact she had worked for over a decade as a political organizer—Windsor could be remade as a non-threatening little old lady.
When selecting the ideal plaintiff, one experienced movement attorney told me, “Women are better than men, post-sexual is better than young.” From the Bible onward, two men having intercourse has been viewed as more disturbing to the social order than two women doing whatever it is that lesbians do. For people to embrace same-sex marriage, they needed to focus on the universal desire for romantic love and committed intimacy. Contemplating the difference between gay people and straight people made it acceptable to treat their relationships unequally, and the difference between homosexuality and heterosexuality is sexuality. Provided that Kaplan kept her client muzzled on the topic, Americans could imagine that Edie Windsor had aged out of carnality.
“The minute I met Edie and heard the story and saw, frankly, how beautiful she was and how articulate she was, I was, like, This is it: it couldn’t have been a better case,” Kaplan told me. Windsor doesn’t “look gay”; she has a T-shirt that says, “Nobody knows I’m a lesbian,” which she often wears to Gay Pride marches. Her pink lipstick and pearls would make it easier, Kaplan knew, for people across the country to feel that they understood her, that she embodied values they could relate to.
But Kaplan had another concern. “We were really nervous, when we filed, that Edie was going to get attacked by the established gay-rights movement,” she said. Just as the movement was divided in the nineties over whether marriage was the right priority, it was divided over whether Edie Windsor and Robbie Kaplan were the ideal pair to face down doma. “There were these calls,” Kaplan said. “These people from Lambda were, like, ‘We really think that bankruptcy is the perfect venue to challenge doma,’ because they had a bankruptcy case they wanted to bring. Finally, I couldn’t stand it. I said, ‘Really? I don’t want to be disrespectful or classist, but do you really think that people who couldn’t pay their personal debts are the best people to bring this claim?’ ”
Some of Kaplan’s movement colleagues felt that Windsor’s finances, conversely, were overly sound. “Evan Wolfson would call me and tell me, ‘Ooh, don’t talk about the money,’ ” she said. “They thought Edie would seem too rich. I mean, they’re so condescending in their thinking!” Wolfson said, “Robbie’s misremembering.” But, he allowed, “There were some people who felt that, while Edie is a wonderful and compelling person, the story of an estate-tax bill might not be as compelling as a more relatable injury.” Kaplan was convinced that Americans dislike taxes even more than they dislike the rich. “This was a lot of money she had to pay, and she had a good chance of getting it back, and I couldn’t possibly tell a client in good conscience to just give that up.”
Mary Bonauto hesitated for different reasons. She believed that the best case would have a group of plaintiffs, who could force the Court to confront an array of the problems raised by doma: employer benefits, veterans’ rights, taxes, Social Security. Kaplan’s case, she feared, presented the Court with the opportunity for a narrow ruling that would restore Windsor’s money but overlook the broader question of gay marriage. In 2009 and 2010, glad filed two cases challenging doma: Gill v. Office of Personnel Management, in Boston, on behalf of seven couples and three widowers; and Pedersen v. Office of Personnel Management, in Connecticut, representing seventeen people.
“Let me be clear,” Kaplan told me. “Mary Bonauto brought Vermont, she brought Massachusetts, she brought the first doma case. She’s the one who came up with the strategy.” But Kaplan had a different point of view on the perfect plaintiff. “In the past, every case had, like, a rainbow-coalition group of couples. There was a black couple, an old couple, a white couple, a lesbian couple. The facts of the plaintiffs’ lives just got completely washed out in the background—no one paid any attention.” People remember that Ted Olson and David Boies litigated the Proposition 8 case, challenging the constitutionality of California’s ballot measure banning same-sex marriage; it’s much harder to remember the individuals they actually represented. Kaplan believed that one person would be more captivating, if that person’s story was sufficiently winning. “Talk about a marriage! I mean, forty-four years with a woman that had M.S. and was paralyzed for twenty? Who wouldn’t want a spouse like Edie Windsor?” Kaplan asked. “Immediately, it was clear to me that this was the ideal case.” Still, Kaplan was anxious about the perception that she was encroaching, so she invited James Esseks, the director of the A.C.L.U.’s L.G.B.T. & aids Project, to be her co-counsel. “I wanted official movement approval,” she told me.
“At that point,” Bonauto said, “we decided that the smartest, most strategic thing to do was work together.” As their respective cases moved up through the courts, she told me, “we were sharing discovery together, sharing drafts, and so forth. The collaboration really did begin.”
On February 23, 2011, Attorney General Eric Holder announced that the Obama Administration had determined that classifications based on sexual orientation should be subject to heightened scrutiny—the same standard recommended by the Hawaii court two decades earlier. The Administration believed doma would fail that test, in the Windsor and the Pedersen cases; the Department of Justice would not defend it. Kaplan recalled, “I’m on vacation with my family and I get this e-mail: the Assistant Attorney General would like to have a phone call. And he went through all the reasoning. Of course, I had tears streaming down my face. People have all these cynical views about it, but I truly believe in my heart of hearts that when these three African-American men”—Assistant Attorney General Tony West, Eric Holder, and the President—“sat down, they thought, How do we write a brief saying that heightened scrutiny doesn’t apply? They’re, like, we cannot write this. Because what are they going to say? There’s no history of discrimination against gay people? You can’t write that brief.” The Administration would continue to enforce doma—a move that Antonin Scalia later characterized as a “contrivance,” writing that “this suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue), even though he believed it unconstitutional.” The Bipartisan Legal Advisory Group of the House of Representatives enlisted the lawyer Paul Clement to defend doma.
In June, 2012, the Southern District of New York ruled in Windsor’s favor, and the ruling was upheld by the Court of Appeals that October. Two months later, the Supreme Court announced that it would hear Windsor’s case. Elena Kagan had discussed Bonauto’s Gill case with the Department of Justice when she was the Solicitor General, and, consequently, would have had to recuse herself had it been selected by the Court. The Pedersen case was still under appeal. “There was only one case—Edie’s—that all nine Justices could take at that point,” Bonauto said. So she joined the Windsor team, managing the amicus briefs. “A lot of what Mary did, frankly, was discourage people from filing,” Kaplan told me. “Any Supreme Court case, not just ours, but ours was worse—every kind of loony tune comes out of the woodwork.” Bonauto and Kaplan agreed that some of the most important briefs would come from the military and the business communities, attesting to the difficulties of dealing fairly with benefits and a host of other issues complicated by the uncertain status of gay families. Bonauto wanted “unusual suspects,” she said. “I think it’s helpful to bring in voices you wouldn’t expect to hear on this. Because the impact of doma is not just on couples but on those who interact with them.”
Kaplan was presuming to enter the coterie of Supreme Court litigators, some of whom weighed in at her moot-court preparations. At one, just a month before her hearing, Kaplan was advised by a prominent attorney to “de-gay the case,” by citing precedents that had nothing to do with homosexuals. That was not the approach Kaplan took when she finally argued before the nine Justices, on March 27, 2013. In an exchange that has become well known, Chief Justice John Roberts asserted that “political figures are falling over themselves” to support same-sex marriage.
Kaplan replied, “No other group in recent history has been subjected to popular referenda to take away rights that have already been given . . . the way gay people have.”
That day, it was Windsor’s turn to be the mother. “I was so proud of Robbie,” she told me. “She was totally prepared. I don’t know what will happen, but I think it’s gonna be good.”
On the morning of June 26th, when the Supreme Court was at last expected to hand down its ruling on Windsor, a hundred and sixty-two thousand people were logged on to the scotus blog. Windsor and her good friend Virginia Moraweck, a graceful woman with very short white hair, were sitting side by side at Kaplan’s dining-room table. “When Thea stopped being able to write, Ginny was her scribe,” Windsor said. “I have all kinds of love letters in Ginny’s handwriting.”
Kaplan, her wife, and the key members of her legal team sat tensely at the other end of the table; everyone was quiet except Kaplan, who was groaning. “We all did the best we could,” she said. “Nobody could have done it better.”
And then the words “doma is unconstitutional” flashed on the computer screen.
There was silence. Somebody screamed. Rachel Lavine started sobbing. “Everything is going to be different for Jacob,” she said, of their son. Then she was hugging Kaplan and passing her the phone. “Hi, Mom,” Kaplan said. “Total victory—total! It couldn’t be better.”
Windsor was not yelling or crying. “I want to go to Stonewall right now,” she said.
Moraweck wiped tears from her face and said, “Even though Edie’s the survivor, you feel like Thea’s still present.”
“Crybaby,” Windsor said, and patted her on the shoulder. Then someone called for her on the landline, and Windsor said into the receiver, “Who am I talking to? Oh, Barack Obama?” The President was calling from Air Force One, on his way to Africa. “I want to thank you,” she told him. “I think your coming out for us made such a difference throughout the country. Hello?” She looked at the dozen people staring at her in silence. “I think I just hung up on the President.” He called back and told her how moved he’d been by her story.
Paul, Weiss had hired a black S.U.V., and Windsor and Kaplan took a triumphal lap of Manhattan. Whenever they stopped, people swarmed the car, burst into tears, and said, “Thank you, Edie!” They wanted to hug her, take her picture, touch her diamond engagement pin. There was a press conference at the L.G.B.T. Community Center, on West Thirteenth Street, at which Kaplan compared Windsor to “Susan B. Anthony, or Rosa Parks, or Harvey Milk before her,” and James Esseks introduced her as the woman who “has made the country more free and more fair and more equal today. In fact, she has made it more American.” Windsor spoke about her years at I.B.M. “I lied all the time,” she said. “Internalized homophobia is a bitch!”
Finally, Windsor was taken where she really wanted to go: Stonewall. When she got out of the car, at Christopher Street, there were hundreds of people chanting her name. Windsor got up on the podium, in her shiny purple shirt, with the pin on her lapel, and, as she looked at the crowd, she said, “Now’s the part when I try not to cry.”
Windsor spent much of the summer shuttling between celebrations on Long Island. “I don’t know how to say it that’s not corny as hell—I’ve been having a love affair with the gay community,” she told me. “I got a million letters. I think Thea would love it.” At the end of July, she and Virginia Moraweck drove to Provincetown in her new convertible to attend the glad summer party, and to spend time with their friend Barbara Cohen, a handsome, bespectacled painter whom Windsor had met at a benefit in New York. Cohen was spending the summer in a tiny apartment above a garage with her girlfriend, Donna Pomponio, a sixty-year-old artist with a strong Boston accent and long blond hair. One balmy afternoon, we climbed the rickety staircase up to their apartment. The floor was painted turquoise, and there was just enough space for their bed, their cat, and a little table, where Windsor sat down in front of the window to drink a cup of coffee. The breeze made the yellow curtains covered in hibiscus blossoms and hula girls dance.
Pomponio said that she wanted to set Windsor up with a friend in town, a ninety-four-year-old redhead. “Is she still sexual?” Windsor asked.
“Very,” Pomponio promised.
If anything happened, though, it would probably be just a summer fling. “I will try again before I die, probably,” Windsor once told me. “But I really can’t be with anybody but Thea.”
Cohen and Pomponio had been together for only a year; they were both getting over the loss of their long-term partners. “We bonded over being widows,” Windsor said. Pomponio’s girlfriend of sixteen years, whom she married in 2004, had died two years earlier. “To give someone a really beautiful death is the greatest gift,” Pomponio said. “Did you have that with Thea?”
Windsor nodded. “She died on exactly the right day.”
Windsor was thinking of buying a condo in Provincetown; her money would be coming back from the government any day. Everyone was feeling lazy in the summer heat, but Windsor had finished her coffee. She got up and said, “Where’s my purse? Let’s go see this town.” ♦
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