Roberta Kaplan’s eulogy for Edie Windsor.

Elegy for Edie

Elegy for Edie

Outward
Expanding the LGBTQ Conversation
Sept. 16 2017 6:29 PM

Elegy for Edie

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Edie Windsor and Roberta Kaplan

Bryan Bedder/Getty Images for Logo TV

On Friday, hundreds of people gathered in New York City’s Temple Emanu-El for the funeral of Edie Windsor, who died on Tuesday at age 88. Windsor sued the United States government when it refused to recognize her marriage to Thea Spyer, ultimately toppling the federal ban on same-sex marriage at the Supreme Court. Windsor was represented by Roberta Kaplan, a civil rights attorney who continues to challenge (and defeat) anti-LGBTQ laws in America. Kaplan’s eulogy for Windsor is printed below. You can also watch it here, beginning at 1:48:00.

One of the first things that Edie Windsor ever told me was that she only had a few more years left to live. That was more than eight years ago, in 2009. And she wasn’t kidding. After her spouse Thea Spyer passed away, Edie had suffered from a series of heart attacks, which were diagnosed as “broken heart syndrome.” Indeed, Edie asked me and other lawyers on our team to carry her nitroglycerine tablets for her when we attended events—just in case.

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Because of her heart condition, I became completely neurotic about making sure that Edie’s case got decided as quickly as possible. I felt like any time we managed to shave off the process, however slight, might be the margin between Edie living to see a victory in her case, or not.

Looking back on this today, I have to admit that the strategy I chose to try to accomplish this goal was somewhat unconventional. Less than two weeks after we filed the complaint in the case that became United States v. Windsor, I wrote the district court judge, Barbara Jones, a letter stating that, “Given Edie’s coronary disease … she seeks to pursue this action as expeditiously as possible.”

And then I sent Judge Jones another letter. This time, I informed the court that Edie was suffering from an allergic reaction. Once again, I asked Judge Jones to expedite the case in any way possible.

And then I sent another letter. And another. And then one more. Believe it or not, over the next year and a half, I would write a dozen of these letters, each time begging Judge Jones to speed up the process. My co-counsel and noted constitutional scholar Pam Karlan aptly characterized them as my “Edie has the sniffles” letters. Although I knew there was a risk that we might be annoying the judge, I kept sending them anyway. As our son says when we catch him eating chocolate first thing in the morning: “I couldn’t help myself.”

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Judge Jones has since retired from the bench and I have had the opportunity to ask her what she really thought at the time. She said she thought I was “full of it,” but she never once held it against Edie or her case.

But the truth is, despite all my letters to the court about her medical condition, I never really thought that Edie would ever die. There are certain people on this planet—and Edie was surely one of them—who seem to have an inner light that is stronger and shines brighter than the rest of us. And it’s impossible, even now, to imagine that light ever dimming.

The fact that Edie was the perfect plaintiff was obvious to me from the moment we met. She was passionate and devoted to her late spouse, Thea Spyer. She was brilliant and articulate. She was beautiful. But even though I believed she was the ideal person to tell the story of why DOMA was so fundamentally unfair, we actually pushed her very hard at the beginning to make sure that she knew what she was getting herself into. We discussed the risks she might encounter, and asked whether she really wanted to subject herself to criticism—some from within the LGBT movement and most from outside the community—with a serious heart condition and in her eighties.

But Edie never hesitated. To her, fighting for equality was a tribute to Thea and to their love for each other, as well as to the entire LGBT community.

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As a lawyer, there are moments with a client when you hold your breath. Perhaps none is scarier than when your client speaks at a press conference for the first time while a case is pending, which Edie did the day we filed our complaint. But from the moment she opened her mouth, that 4’11”, 95-pound Jewish lady with perfectly manicured nails and perfectly coiffed hair explained with such clarity and humanity why her rights, and all of our rights, should not be denied.

Edie was immediately a cultural icon. Which meant that there would not be any more moments of me holding my breath, waiting to hear what Edie would have to say. I wanted Edie to be Edie, with one very significant exception.

Edie was never shy about describing the two maxims that she and Thea lived by: “Don’t postpone joy” and “Keep it hot.” While I had no issue with “don’t postpone joy”—in fact, it’s a lesson I have tried very hard to keep in mind ever since—“keeping it hot” was a different story. My reason was because every time Edie spoke in public, inevitably, someone in the audience would ask her to elaborate about exactly how she and Thea “kept it hot.” I cannot remember the details—I think I may have blocked them out—but suffice it to say, Edie’s answers to these questions made me blush. And given that we were filing a case that had the potential to go all the way to the United States Supreme Court, I didn’t want any of the justices thinking about Edie’s sex life—no matter how “hot” it was.

But when I asked Edie to promise me that she wouldn’t talk publicly about sex, she made it very clear that she did not agree with my strategy. Ultimately, she agreed (albeit reluctantly), but in order to seal the deal, I had to promise Edie that all bets were off the minute the case was over. We won the Windsor case at 10:03 a.m. on June 26, 2013. I can assure you that Edie was publicly talking about sex before noon.

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There’s a bit more to this story. After the Supreme Court ruled on our case, Justice Sotomayor met Edie’s cousin Lewis, who Edie adored, along with his wife and children. Justice Sotomayor told Lewis that the “no talking about sex” rule was very smart, and that Edie was wise to follow the advice of her lawyer. But it gets even better. It turns out that upon hearing that story from Lewis, Edie told him that she still didn’t agree with my advice. This, of course, was classic Edie. Not only did her light shine brightly, but she also had a will of steel. In fact, I don’t think she would have changed her mind even if all the other eight justices had also told her I was right.

Representing Edie in court was a great honor, but so was having her become a member of our family. Although our now 11-year-old son Jacob now reads the New York Times front page, he nevertheless has dyslexia. As a result, Jacob had to work very, very hard to learn how to read. Before he could do so on his own, Edie would come over to our apartment and read to him for hours at time, including all the books in the Captain Underpants series, which are just what they sound like—about a superhero who wears briefs and a cape and fights talking toilets. Edie’s love was not unrequited. Jacob absolutely adored Edie right back.

Edie once explained this in her own words: “It is often said that as gay people, we get to choose our own families. Those words could not be truer for me. Not a single day goes by when I don’t think about my parents or about Thea ... and while no one could ever replace them in my heart, I have also fallen in love with Robbie’s family, most especially her son, Jacob.”

The entire legal team that represented Edie—including the lawyers at the ACLU, the Stanford Supreme Court Clinic, and Paul Weiss—became, in a way, all part of a very large and very extended family. Two nights before my argument at the Supreme Court, we celebrated Passover together by holding a 64-person seder (you heard that right, 64 people) in a conference room at the Mandarin Oriental in Washington, D.C. My wife Rachel organized the seder and one of her greatest concerns was making sure that they served soup with matzoh balls in it instead of wontons. Reading together from Rachel’s feminist Haggadah, we told the story of Moses leading the Jewish people from bondage in Egypt to freedom.

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It may sound crazy, but I have long believed that the timing of when we read certain passages in the Torah is not pure coincidence. In fact, I just gave you an example of this: Passover in 2013 started two days before my argument for Edie at the Supreme Court. This week’s Torah portion is Vayelech (Deuteronomy 31), which tells the story of the Moses’ last day on Earth before he dies at the age of 120.

As I’m sure you know, although Moses was undoubtedly the single greatest prophet in the Jewish tradition, God denied him the opportunity to enter the Promised Land before he died. As Moses says to the Israelites who are gathered on the banks of the Jordan: “Today I am one-hundred and twenty years old. I can no longer go or come, since the Lord said to me, ‘You shall not cross this river Jordan … Be strong and courageous! Neither fear, nor be dismayed … for the Lord, your God goes with you. God will neither fail you, nor forsake you.’ ”

I actually find this to be one of the most heartbreaking passages in the Torah. Even Moses, who managed to liberate the Jews from Pharaoh and lead them to Israel, all the while making them into a free people, couldn’t enter the Promised Land? Really? In order to make myself feel better, I like to think that this story is a way of saying that no human being ever gets to complete the work of liberation. In other words, if we die with a sense that our work is complete, then we know that we have not aimed high enough.

Edie saw in her lifetime the seemingly impossible dream of marriage that she and Thea shared when they got engaged back in 1967 become reality for gay and lesbian couples across the nation and now even the world. In fact, she had a huge role in making that happen. And Edie rightfully exercised that right with the utmost joy when she married the second great love of her life, her beloved spouse Judith last year.

But although she lived to be 88, many years past the point any of her doctors expected, Edie has now left it to others—us—to take the next steps to repair the world. Edie did not view her work as completed after U.S. v. Windsor and neither should we. I believe that the best way to honor Edie’s memory is to redouble our efforts to resist any undoing of the progress that we have made together, as a community and a nation. Like Edie, we need to be strong and courageous in order to continue the work done by Edie and by so many others, from generation to generation, or l’dor va’dor, until the true promise of our great nation and our Constitution becomes reality.

Roberta Kaplan is a commercial litigator and civil rights attorney in New York City. She is the founding partner at Kaplan & Company.