One Year Later

MW: Have you had any discussions with President Obama since the decision about the case or his thinking on this?

KAPLAN: I’ve certainly told him this story and I’ve told him how surprised I was and talked about it with both Tony [West] and the attorney general. Holder said to me last week when I was telling him that I brought tears to his eyes.

My definite sense for all three of them, certainly including the president, is that this is something they’re very, very proud of and I also have the sense that all three men believe this is why they do what they do. This is why they became public servants to be able to make decisions like that.

MW: You and Edie are introducing President Obama tonight at the DNC’s LGBT Gala. What’s your reaction on the president’s decision to sign an executive order prohibiting federal contractors from LGBT workplace discrimination? Relatedly, we’re starting to see that there are states like Pennsylvania that now have marriage equality but don’t have nondiscrimination protections for LGBT people. What’s your take on that?

KAPLAN: On the executive order, there’s a great way I thought of thinking about it the other day which is in 1958, 1959, Edie Windsor went to work for IBM, one of the earliest software programmers. And technically, at least, it was against the law for her to do that because she was a lesbian, and because IBM had contracts with the federal government, and because at the time it was illegal for any company that had federal contracts to knowingly employee someone who was a homosexual. Now, of course, IBM didn’t know they were breaking the law because Edie was in the closet for her entire career at IBM.

Flash forward to today, and based on the act of the president, it’s now going to be illegal for federal contracts to fire someone because they’re gay. Here’s a transformation not only in gay history, but in the life of one person, going from working in a job where you could be fired for breaking the law, to knowing if she had that job today they couldn’t fire her if they found out. It’s incredible.

In terms of the states and the lack of protections, it obviously has to happen. I think it will, whether legislatively or by court decision or most likely both. But you can’t have the Supreme Court in Windsor saying over and over and over again that gay people and gay people’s relationships have equal dignity with straight people. You can’t say that and then have it be OK for an employer to fire someone because they’re gay. Or to lose their house or their apartment because they’re gay. Those two things are not consistent.

Ultimately, and I think sooner rather than later, those laws will fall by the wayside as well. That hasn’t been the focus, of course, lately because of the push on marriage, but I think it will be the inevitable result. It just doesn’t make any sense that gay people have the right to equal dignity in marriage but not the right to equal dignity in not being fired from their jobs. No one could credibly make that argument.

MW: You were talking about when Edie went to work at IBM. It seems like a remarkable series of events that it is going to be you and Edie at this event introducing the president who will be the one to sign this executive order.

KAPLAN: Incredible, huh? Last summer I woke up every morning and said to myself, “Pinch me.” But it still happens now and I feel that way very much today.

I’m just a Jewish girl from Cleveland, Ohio. If you had told me in the 1980s when I was listening to the Grateful Dead that as an out litigation partner of Paul, Weiss who won the landmark case at the Supreme Court, that I would be introducing the president of the United States, married with a son, I would’ve told you to sober up or quit smoking whatever it was you were smoking.

MW: Walk me through that day in March 2013 when you argued the case before the Supreme Court.

KAPLAN: It wasn’t the most stress-free time of my life. It was pretty stressful. I tried very much, and I had the strategy in the case be “It’s all about Edie, stupid,” borrowing from the Clinton campaign. And part of that was because I really thought the facts of Edie’s life were so compelling that I wanted the court to understand them — to not only get into people’s mind but in their hearts, not only on the law but on the fact.

But I think part of the strategy, too, and what a good lawyer needs to do in any case, was separating myself and my own personal situation. That is a lawyer’s duty. Your first and only duty is truly to your client.

But obviously I was getting constant barrages of advice one way and then the opposite and the opposite again from everyone on the planet. The stress was huge and there was no way that I wasn’t aware, I certainly was aware of the huge responsibility that was on my shoulders. So we practiced an awful lot, we had a lot of what are called moot courts where people on my team pretended they were various justices, and that helped.

The day before the argument I watched the Proposition 8 argument in the courtroom and when I went back to Paul, Weiss I remember we had a meeting and we all felt pretty comfortable that that argument, at least from our case’s perspective, had gone pretty well and that we felt we were in a good position and we didn’t really need to change anything strategically in terms of what we planned. And then it was about 3 or so in the afternoon as I recall and I remember thinking there’s not really much more I can do at this point, if I haven’t done anything it’s too late. So I went back to the hotel room and I watched cartoons and had milk and cookies with my son, who was then seven. And in a lot of ways I think it was probably the best thing I could have done to prepare.

MW: Does your son have a notion of what a big deal this is?

KAPLAN: I think he does. He’s very close to Edie, so he’s certainly aware of the case. Does he understand how momentous it was? I don’t think so.

My son loves movies. And we get tired of watching Disney movies and Japanese anime and stuff he likes so we decided a few months ago we were going to have a family night where we were going to watch a movie we picked. So the two of us picked My Fair Lady, which he loved. But at the end of the movie he had two questions. His first question was, he was very disturbed by the idea that Eliza Doolittle went back to Henry Higgins and he just couldn’t understand that, which I have to say his mother and I were both very proud of. And the second issue was he said, “Huh. I guess this is an old fashioned movie, right?” And I said, “Yeah.” And he said, “I guess this was a movie that was made before men could marry men.” So for my son, something that’s “old fashioned” is defined by the fact that something was created before men could marry men, that’s incredible. But it also suggests that he probably doesn’t fully understand what a big deal all this is, which is a good thing, not a bad thing.