Skip to main content

tv   After Words  CSPAN  December 6, 2015 11:00am-12:01pm EST

11:00 am
a child's head do you really going to affect that person. i would recommend reading aloud robert louis stevenson books to your children. many of them were written for that audience. so that's really the legacy of the author today. it continues to live on. there's a very strong stephenson fan club over the world us to appreciate the author's works. >> for more information on booktv's recent visit to monterey and the other destinations on our cities tour go to tour. >> booktv continues now with "after words," attorney roberta kaplan discusses the case the united states v. windsor which struck down the defense of marriage act. she's edited by "national law journal" and legal times reporter zoe tillman. >> host: thank you so much for being here to talk about "then
11:01 am
comes marriage." this book is as much about the people and personalities behind the defense of marriage act is as it is about legal strategy. you write that as you were preparing to put a post-it note on your computer that says it's all about edith windsor. poswas about her and the eventsn her life a letter to higher you. >> guest: i did have a post-it on my computer everything the main reason company message i was trying to tell myself is a way to win this case is to focus on the facts of her life. they really are remarkable. her life kind of tells a panoramic story story about life has been or was for gay and lesbian people in this country and the twins center. i thought that was are important to go to give a couple of anecdotes and you can tell me when you get bored. she grew up in philadelphia in the depression. she came from a middle-class
11:02 am
jewish family. her father lost everything during the depression and had to move in with relatives. she went to college at temple university. at college, i love historic am at college a kind of realized, she fell in love with one. she realized she was a lesbian. she broke off an engagement because of that and then because oat that point in time, as his new movie out about the same story, which is not realistic for women at the time to kind of have a lifetime commitment to another woman. so she called up her fiancé that you actually had reengaged just after graduating college and she got married. needless to say the marriage did not last very long it was only a matter of monster choose it should go with her husband on a saturday night and da she saw to women together she would get jealous. so she said to her husband, look, you deserve to be loved the way you deserve to be loved and i need something else. she essentially came out to her husband in the '50s, an incredible fact. and like so many other people,
11:03 am
she decided to move, like myself really, she decided to move to new york in order to be gay, those were her words. she gets to new york. the actual bigger problem when she moved to new york was not being gay but anyone who was middle-class to the point and above who was gay was totally in the closet. you could live your life any other way. the big issue is chained down these is chained down is to support or so. she's who she is going to grow up, mary iconic and supporter. now she needs to find a job. she had been good at math in high school, and so she decides she's going to enter the math graduate program at nyu in which it. she became one of the first ever computer programmers in the united states. she got a job working on the univac computer which was the atomic committee, atomic energy computer which was house on an entire city block at nyu. in order to work on the computer she knew what was called q.
11:04 am
security clearance. one day she's at her apartment on the upper west side and she gets a letter from the fbi and the letter says when he to talk about your security clearance. we don't think you need a lawyer yet but can you come talk to us? she was terrified. because she was sure that would ask her, she said she was sure the on tour and they're going to ask her if she were a lesbian and she was determined she would not lie if she was asked that question. chanute issues asked the question that on which are not have any job but that would be the end of her career. it was illegal at the time to have any job whatsoever with the federal government or even work for a company that contracts with the federal government if you are gay. she did research on your own. she was right about a. she concluded under new york law for a woman at least as opposed to a gay man what was illegal was to dress up your asinine. so she showed up after interview in high heels, a frilly dress,
11:05 am
hoping to soviet the off their game, again or phrase, fortunate for her and for the rest of us the fbi didn't care at all about whether she was a lesbian. they were only interested in arr sister's friends and the ties to the communist party, or alleged ties to the congress party because they were in the teachers union, and she got her security claims. those sites are even before she met thea. she's been in new york. she's lovely, and one night she calls a friend and subject to to take me where the lesbians are. i'm lonely. i need to me some lessons. she goes to a restaurant in greenwich village and there she meets thea. at least from edie's perspective it was love at first sight the she kind of spent the next two years kind of pursuing thea and since she was always trying to wait issue not attach commission up with someone parks or maybe i
11:06 am
get together with reports after a couple of years they did, and they were driving out to the countryside one weekend and thea said, edie comp what if you were to wear a diamond engagement ring at work? what would happen? edie so they can do that if i show up at work, i'm sure you've seen pictures. edie is what a looker. she still is but she was a gorgeous woman. she said if i show that ibm with a big diamond ring everyone will say who's the lucky guy? and i can't answer that question. so thea pull the car over, got down on her knees and pulled out a circular diamond in and said will you marry me? and that started an engagement that lasted 40 years. what's so incredible about that is it was 1967, two years before the stonewall riot. so the idea that in 1967 it would even occurred to do them to get in decades, that they would have the courage to even think those thoughts is incredible. and the truly heroic part is what happened for the next four
11:07 am
years because thea was diagnosed with a terrible form of ms, about 15 or so years into the relationship. she essentially became paralyzed over time and the nature of the dazzle in their life changes possibly edie said the diagnosed happened to both of them. they had a post it on their refrigerator door that said seize a joy, and they seized 20 there's no question that's the way they lived. sadly, thea got a very bad diagnosis in about 2007 that she didn't have long to live. and even though she'd been reluctant to lead new york to get married to go to canada because it's very hard for some was a quadriplegic to travel, even though she'd been reluctant she woke up the next morning after getting this terrible diagnosis and said to edie, do you still want to get married? they went with four men for best women and for best man in toronto. they got married in the toronto held so they could wield a
11:08 am
wheelchair into the airport hotel. this was a couple of really, really, really wanted to get married. and salvage a half later and six died and that's what started the case because then edie get hit with this huge estate tax bill because of the so-called defense of marriage act which basically said that even though their canadian marriage was completely valid in the state of new york, as far as the federal government was concerned they were not married. so when edie inherited all the property was as if she had inherited it from a stranger and she had to pay a huge estate tax post as much of the book is that edith and the story in the case, it's a personal story and i was hoping you could talk about how you decide how much of yourself to include in the book? >> guest: when we first proposed the book tells us on the acting like a that is going to write a little book that explained our legal strategy that we did what we did. and then ssr to plan it and then with his ally for the chapter i realized i could really tell that story without telling my own story.
11:09 am
i think the reason is, i remember growing up hearing from gloria steinem this thing personal is political. you don't miss it would have to believe that about everything but when it comes to gay rights there is no question that the personal is political and i couldn't explain this incredibly dramatic change that occurred in our society with justice scalia called a sea change without describing the changes in my own life. probably the most interesting story is the story i tell about how when i first put edie, it wasn't the first time i had heard her name. i'm happy to take that story posted we would love to hear about the personal connection try to thea have died in 2009 and, unfortunately, we had some mutual friends. she's been turned down by some civil rights groups and so we had a mutual friend and he said why don't you call robbie? when i got a phone call i knew exactly who it was. i've never met edie before but i knew exactly who she was. the reason i knew exactly she
11:10 am
was, that this was a celebrity back then, but about 2 20 yearss before i been in my third year law school and i was in terms of coming out. i was a late boomer. i waited until i had anxieties and concerns, probably in high school, certainly in college and certainly in law school i waited until the kind of the bitter in my third year to the gumption and the courage to do anything about it. it just so happened that shortly there after my parents were coming to visit me at new york city. very bad planning on my part because i scheduled to visit on gay pride weekend. asked my parents were coming with a divisive in my apartment they kind of had to wind their way to the gay pride to the gay pride parade. by the time to get to my apartment they were in high form. they started talking about how they couldn't understand what are people so proud about, what's with all the rainbow flags? my college room mates mother was an elected official and they said what is she doing in the
11:11 am
parade? what is she proud about, et cetera said. i finally said to my parents and you have to start. they persisted to a city can get this done. then my mom said to me, why is the uk? i suggest. i had this teeny one group of private but my mom walked over to the wall at that point and started to bang her head against the wall. when i tell the store i'm not criticizing my mom. let me be perfectly clear. my mom has apologized for this thousands of times by now. she fully embraces the. she could not be more proud of me. she fully embraces our family. she talks about this every chance she gets. my mom like so many other americans as the bald on this issue and a good thing. but after that happened in the you can imagine i was pretty low, depressed and i went around the city asking people i do. i said i need a psychologist who is good about the issued and i kept getting was thea spyer,
11:12 am
believe it or not. so i saw thea as a patient only twice. i was clicking in boston that will unfold in new york that summer. in the same living room where i met edie 20 years later thea is already a quadriplegic. here's the most incredible part of it all i think which is during those sessions thea talked about edie. i don't know, i think it's pretty not typical for a psychologist or psychiatrist to talk to the patient about their own life but looking back on it i think thea was convinced the only way she would be able to persuade me to was pretty stubborn at the time that i had any chance of having a lifelong love affair, a committed relationship of them was if she told me about her own relationship if she talked about edie and i remember telling me that edie was this brilliant mathematician, as she stood at nyu. i remember all these things.
11:13 am
she gave me an amazing sense of confidence and really set my mind at ease. and then 20 years later into the night i walked into edie apartment or even find exactly what i was going, i saw her and i saw the apartment and it was like kind like me back to the scene of action. of the accident everything came back in and i said you have to give me a minute and then i explained to her why. >> host: you describe a situation when you are clicking it in your court of appeals in the mid 1990s when he played a part in a ruling that made it possible for gays and lesbians to adopt their partner's child. you talk about how a fellow clerk you wrote was quoted as closet as i was at that point can criticize you for making that case to personal. how do you view that exchange now looking back? >> guest: it's like one of the other stories like the stories i've been telling as i think it's a symptom of how different the world was back then. this was 1996. i was a kid, to be honest with
11:14 am
you i was clicking for a chief judge in europe and we had what was a very big deal case at the time which was essential whether gave people could adopt in new york. it was controversial and it was high-stakes and actually the case was first voted out we were in the dissent. we were not going to win the case and then the judge held the case over the summer and we held -- we won in the fall. it was intense. a lot of work being done, a lot of lobbying being done by to get the other boat. you need for vote on the court of appeals. i have to tell you, back that i did think there was every chance i would ever have a kid frankly. i don't think i ever thought there was any chance, shortly no chance i would get married. that was a pipe dream. but i cared a lot about the case i wanted a lesbian couple who wanted to adopt, i think it was a boy, to be able to adopt their son. so i thought it very hard and had this discussion with this other woman who worked for the
11:15 am
judge about whether i was making it to personal. i don't know. i didn't talk about my personal life in the case but i thought very hard together with the judge to make sure we got the majority opinion posner he became a partner at the law firm in 1998. can you talk about what the law firm culture was like for gays and lesbians at that point? just generally and what it is like now. >> guest: talk about a revolution. paul weiss truly kind of a beacon in this area. there have been openly gay partners of paul weiss. but it's a place that was kind of sounded based on principles of the diversity and openness. that was the foundational dna of the firm for lack of a better term. it was never an issue but paul weiss was certainly influenced by the rest of society.
11:16 am
and back then in 1998 they were very few gave people who felt comfortable in all stacks -- aspects of their life. you might be out as i was to your friends. you may be out to close colleagues at work, but i wasn't out for example, to my adversaries. i don't think i was out to judged i know it wasn't out to judge kaye went to the adoption of gays. and it was kind of this halfway in have without kind of life where you all the time really were having to evaluate should i tell this person, should i not tell this person? how would he react? how would she react? lash forward to today. when we filed the easy wins her case, we had a vocal with a bunch of aclu donors are removed distinct and on that call one of the donors said, edie, what does it feel like? how do you have the courage to be a point in the case of? edie said that as a gay person you're always coming out. i've been an out lesbian for
11:17 am
many years but i still always coming out, whether you tell the cab driver or a dentist or a hotel porter, you're always in making those decisions, she said. she said now it was one thing to be out lesbian and. it's another thing to be the out lesbian who is linking to this america. and i am representing the out lesbian who is suing the estate of america and is pretty much item as outpatient computer obviously in my life right now it's only a good thing. i can't think of any negative things at all frankly, life that comes from being the open lesbian that i am. i have to tell you again, sitting in the apartment back in 1991, i never thought that would happen. i would've told you, you need to go to a mental hospital if you predicted to me that that's the course my life would take. >> host: did you ever faced any pushback from clients or dollars you worked with were
11:18 am
judges as you are pursuing, not just the doma case, but other gay rights cases you had over the years transferred remarkably little. the case in 1986 was different that it was a hard-fought case and the dissent in the case to be honest i don't think it's a kind of dissent that a judge would write today. i remember when the drafts were being circulated there was some language, some which have taken up which is pretty harsh language about gave people if i recall. that marriage case that he argued in new york which was in 2004, again there were questions that were asked of me at the oral argument in the case. i remember one about two sisters come and visit the relationship between two such is the same as relationship between a gay or lesbian couple? i do think a judge would ask today. i just can't imagine any judge anywhere asking the country -- question today. and then today certainly during
11:19 am
windsor and since winter there's been nothing. i brought the mississippi marriage case after windsor. we were like mississippi, oh, my god, he didn't see a single protester. when we argued the case for a lot of people on our site outside the courthouse but there was not a single protester. so the rapidity of change, the speed of the paradigm shift i would say is something that is even surprised me post that as you mentioned in 2006 you argued in the new york court of appeals in a marriage equality case and to write a book about how several weeks earlier your son jacob was born. talk about a difficult situation you encounter in the hospital. could you talk about that and how it is formed your approach going into the court of appeals? >> guest: probably put a lot more stress on me. my son wa was a newborn but argd that marriage case in new york. he had just been born, and when jacob was born we thought it was incredible. we thought he was totally
11:20 am
beautiful, of course every parent does come and his skin of this incredible kind of apricots you which withou we thought lood but we didn't realize that meant he had jaundice. so that they put him in essentially the intensive care for infants for a few days under the lights to get rid of the jaundice. and everyday we were there for about three days, i would go in and out several times a day to begin, to bring him to my wife back and forth. i had a hospital bracelet. i was treated like any other pair. and then he came to the date we were finally ready to take a moment in which we were ready to do at that point. and i went to what was called the intensive care and i said i. out regurgitated jacob lew. the nurse wouldn't give them to me. i said what are you talking about your senior producer which the issue. she said you are not appear my wife got a c-section are you telling me, she was still pretty weak and bandaged that i said i'm done i have to go get my wife and just to schlep your with her walker to pick up jacob? i mean, that's crazy.
11:21 am
but that's what the nurse insisted on. and it was only this was 2006 my son was born. so even then i think we're pretty shocked by. i remember my wife want to make a big deal about ms look am i want to get us all home. you aryou are weak and we're ald and let's just get jacob home and we will deal with it if we have two later post the ultimate the new york court of appeals ruled against your client. over some lessons learned from the case as you're going into working with egypt and bring her case up? >> guest: the standard strategy is so brightsource had been using in these cases, it is good reason to do it, had been to bring cases with multiple couples. almost any case, you want to expose the diversity of the committee. cases typically would have african-american couple, male couple, lesbian couple, old couple, et cetera. i understand why that was done. you do what the cour coaches set
11:22 am
this is a diverse community. i think what people didn't realize at the time but you get four or five, six couples in the case, the facts of the couple's lives fade into the back of the basilica focus on six couples lives. and the cases started to look more like a fight between pundits on fox news and msnbc had a case about real people and their allies. and became abstracted. that was a bad thing i think is the way to win this case, the way to win this issue is to persuade judges, americans, and only the supreme court justices that allies and the relationship that gave people is the same as the lives and relationship and what else has. one of the reasons i thought edie citie's case was like it ws because we could focus on only one couple ever to tell their story and what i thought would persuade the court that yes, the marriage that they had is the
11:23 am
same of march i had to my wife or my husband and i can understand that and they deserve the same dignity that we have in our family. >> host: you write about your talking to eat it's about taking her case there were troops that did not think it was the right time to take a case like edie and were actively advocating against any losses. why was that? >> guest: i had very much in mind when we started the case was when it happened with respect to the california litigation, the prop eight case that been brought by ted olson. when they filed a case in federal court a lot advocate groups actually the next i think issued a press release attacking the filing of the case. and as the water for them i guess 82 year-old woman, i was very concerned that the same kind of attacks would happen to edie. i had forgot about this would start to write and what back and look at the original e-mails, a lot of our original e-mails were about kind of prepping treadway
11:24 am
commission if she did to these attacks she would be willing and able to handle them. it turns out it didn't happen but there were certainly a lot of doubters i think in the movement. that only weather was the right time to challenge doma but i think more significant whether edie was the right person to do so. the fact that edie attitude pay an estate tax bill to the iris that at the estate tax bill was over $350,000 i think i have raised the hackles of certain people in the committee. they were concerned that edie would be seen as this rich white lady and that no one would get it and then no one would care. i did not share that view. for me, first of all, i represent pretty wealthy people all the time and, frankly, converted people i don't represent edie was nowhere near that level. in fact, when i first met her and she said we take my case for she said how much will it cost
11:25 am
me? and i did this to her. she said really, i would like to pay. and i said just that, you cannot afford our peace. that part of it didn't bother me. second of all she actually isn't that wealthy. most of the estate tax was due to appreciation energy bedroom apartment in the village. at many people in new york she bought an apartment in the early '80s, increased greatly for a couple hundred thousand come increase greatly in value and that was with a reason, the driver behind the estate tax. third of august intimate a tax with a perfect case because essentially doma was a tax or being gay. it was a big tax. americans don't like to pay taxes. resort i don't like to pay unjust taxes or call me crazy that i'm watching the pbs series liberty kids with my son and it's all about the fact that a country started about a fact about unfair taxes. and i thought every american
11:26 am
would get in their stomach what it means to debate a huge tax because you're gay. plus the republican party doesn't like the estate tax so i thought that was good post but once you start working on the day she learned that the obama administration and the justice department are no longer going to defend doma in court. what did that mean for you personally and what did that mean practically for edie's case going forward? >> guest: the whispers of any case, i hate to say this and adult mean to sound conceited but there was very little in the case that surprised me. i know the judges an in the southern district 40 well. southern district of new york. i know the judge on the second circuit birdwell and i was pretty confident we would win both of the southern district and in the second circuit. i knew i case we get to the supreme case that i did not it would be are that it wasn't thinking about that at the time. the one part of the case that just floored me, totally astounded me was when the doj
11:27 am
switch their position but it's a great story because we filed the case and the government gets a certain amount of time to respond. i got a call from the trilevel attorney basically saying we need 30 days. we think about what to do in the case and when the time to decide. i'll be honest i didn't believe her. i thought she was stalling for time. and for so i don't get to the point of all that much. and number two, edie had a lot of very serious health issues in the case so i was very worried, want to make sure that when the case was over, not only was edie still alive but she was healthy enough to enjoy. that was very much weighing on me that i said to the government, forget it, no extension. that i got a call back from kind of the mid-level attorney in the middle level aggressively like an extension i said the same thing forget about it. see you later. see you in court. that i got a call from 20 west who at the time was second or
11:28 am
third in command in doj antoni basically said robbie, wha whats this i hear that you've turned into lawyers asking for an extension? i said look, tony come should not getting any younger, she's not healthy. we want to put the case. he said look, i'm telling you that the president and the attorney general and i need to talk and meet to discuss about what we're going to do in this case. we have to figure what this issue are going to take and when the time to do that. are you telling me that you're not going to give the president of the united states an extension of tendinitis in let me think about it. i will call you back. i would next go to my partners office until this or any said are you crazy? of course you're going to give an extension, which i did. plus but he ended by saying you're going to bright? >> guest: dish is a cynical we all are to do the i still didn't believe that there at the end of the call i said tony, i just want you to know, while u.n. the president and attorney general holder are deliberating, i just want you to know i would be
11:29 am
praying fo for you. i could tell you i was pretty sarcastic tone of voice when i said that the that was the end of the call. so three days when i get an e-mail. it was spring break every member. i get an e-mail. we were on vacation, saying tony wants to talk to you. i knew what that meant. that's not the kind e-mail that lawyers get every day. we had a call and on the called tony explained that he and the president and attorney general holder had gone through the factors for heightened scrutiny and they decided that they could not conclude that laws that treat gave people to but should not attend some form of heightened scrutiny under for that doma -- and collect a day i had to i think a critical article at any other time in the case. i had tears streaming down my face. i was just completely shocked that they had done this. at the end of the called tony said, at the end he said robbie companies to remember that thing you said to me about praying for me and to present what i suggested he said i just want
11:30 am
you to know sometimes prayer works. that was the end of the call. it was an extraordinary thing to happen to it was an extraordinarily courageous thing for the president to do that i think we live, especially being in d.c., we live in a society where we can assume that everything that happens in d.c. is not based on principles, is based on some other reason that doesn't have to do with the merits. ..
11:31 am
known as the bipartisan legal advisory group because it was early bipartisan, they had a republican majority vote and they decided to defend the statute and hired that preeminent litigator of my generation. >> host: eventually edith is the one that makes it up to the supreme court and at that point you have never argued a case in the supreme court. why did you want to do that?
11:32 am
>> guest: that is a good question and i had a complicated range of emotions. there was a lot of pressure on me not to argue the case and when i started practicing law there was no such thing as a scotus barn there was today there was-- connected thinking about it a while i had a call, i called up pam carlin who is a professor at stanford who i brought in on the case and i said it were, pam, i want you to know i am thinking about whether or not to argue this case and i want you to know that if i don't argue the case and if edey agrees with my recommendation because ultimately it will be her call, i will recommend that you argue that case. pam had done seven, nine maybe a dozen at that point.
11:33 am
and pam immediately said to me, robbie, she said you should argue the case. there are things about arguing in a supreme court that are different. you will have to learn them. you can learn them. they are not that hard to learn and you know this case and there is no reason why you should not argue it's. so, that was a conversation i will never forget for the rest of my life. i don't know how many other people, how many other lawyers out there would have said the same thing as pam carlin, but it is a great tribute to her that she said what she said. >> host: what is different about preparing to argue in the supreme court and arguing in the supreme court as opposed to other federal appeals court? >> guest: i think the best way to compare it and a lot of this is a factor of time, i think. and most appellate courses, you get at least 30 minutes, sometimes 45 minutes to argue.
11:34 am
often it goes past that time and it's no big deal. to give you a sense i think my fifth circuit argument in that marriage case was over an hour and i think that was pretty much true in the windsor case when we argued in the second circuit and because you have the luxury of time it tends to be at a high level and there is discussion about precedence and the impact of precedents and statutes and very technical discussions of the law and it is often great intellectual interchange. it is really your job, particularly if you have a great job to intellectual discussion with that judge and try to persuade him or her while you should-- why you should win the case. supreme court, particularly in a big case like this it does not work that way, so you have very little time. your job as an advocate, i believe, is to really help the justices on your side kind of argue with the justices on the
11:35 am
other side which is very different. pretty much their minds are made up when they come up and it's very rare you will persuade someone at an argument, so it's almost this diplomacy you are doing when you try to help the judges on one side and help them with the justices on the other. there is almost no time for this kind of high-level intellectual discussion. and a lot of it is about political issues. i think if you go back and look at the transcripts, not a single case was raised in the windsor argument other than by me. i was not asked a question by any of the judges, so it's a different kind of animal. >> host: you talk about as part of your preparation going through court where you stand before a panel of lawyers pretending to be justices and the temper you with questions and you pretend you're in the moment and you write how the first one did not go so well.
11:36 am
talk about that and one lawyer told you afterwards that you needed to quote the gay the quake-- case in that did not go over well. talk about how the court conformed to preparation. >> guest: you prepare for a case like this and you go through the supreme court process and i don't know, maybe root canal without anesthesia would be more painful. , not sure there is much that could be. as you said you sit in front of a panel of lawyers who are judges. they actually question you usually for about 45 minutes, sometimes even an hour and then you spend another hour and a half where they click chic-- critique literally everything you have said. it is not the most fun experience you can have as a lawyer. we did a bunch of those to prepare for the windsor argument and the first one as you said was not the greatest success. we walked in-- this was a room with a lot of people there, and a lot of people in the audience watching and a lot of that
11:37 am
discussion tended to be kind of about theoretical issues that were very unlikely to come up in the supreme court argument and i remember one academic on the panel said is it your argument really about train. are you saying that people should have the same equal access to marriage that americans have two utilities like train and i know that is not your brief, but shouldn't you make that argument and i had not argued the supreme court before but i had litigated for a lot of years and everyone in my instincts told me that was not a good idea to use that issue. then, another argument that came up was this argument that we should do the day case and the way to win here was to emphasize edey and her love affair and her life with dia, but to emphasize
11:38 am
a bunch of other scenarios not about gay people and what the supreme court had overturned statute on grounds of irrationality that they that were helpful. in my view of it was that this case was about being gay that accu looked at some of the preferences and one was about hippies, i didn't think the supreme court was really all that interested in hearing we should win the case because in the early '80s, it held that you could have a statute that revealed the way hippies looked at each other. i did it see that as a direct analogy. i saw the direct analogy as i said before that we need to persuade the justices that he had the same marriage is anyone else and as long as they had that there was no good reason for why it's constitutional and without rather than try to the case we needed to make the case as gay as possible. >> host: at that point the supreme court was getting ready to hear the case of proposition
11:39 am
eight, the california representative-- referendum that banned same-sex marriage and you wrote that we can with a nod to the brown versus board of education and he said that was not the approach you wanted to take anyone into differentiate uric case from prop eight. >> guest: round versus wade is one of the greatest if not one of the greatest decisions ever. it was a revolution about equal protection and the rights of african-americans in this country and it was on a enormous historic leap forward and supreme court ruling. we wanted the court not to see windsor that way. windsor, again, the one main difference is in the prop eight case they were arguing everyone in that country, every gay person in that country should have the right to marry in all 50 states. all we were arguing in windsor when we started the case, when
11:40 am
argue the case nine and when the case 12 states that allowed gay people to marry that in those states it was wrong and unconstitutional for the federal government to say even though you are in new york or massachusetts and allow those people to marry, we will treated as invalid and there was much narrower relief we were seeking and we wanted to differentiate our case from prop eights. we were worried the court was not ready to go up away their and we wanted the court to see windsor as the easy moderate next step for them to take. >> host: you write that when prop eight was argued that lawyers had to hire line standards to make sure they could get into the court and get a seat and recently the supreme court said we will not allow that anymore, not for lawyers at least. what was your reaction? >> guest: absolutely of the right decision. pam carlin has been very vocal
11:41 am
on this and the day it happened she said look at my huge victory. there is no question that people who wait for the supreme court argument, it should be that everyone does at the same way and someone with a lot of resources should not allow someone to do it for them. i will admit i have done that in the past. >> host: your focus in the doma case was focusing on justice kennedy. you wrote kennedy's greatest hits as you are preparing. your focus was on him. how come? >> guest: in big cases like this, high-profile cases even putting aside the gray rights era justice kennedy was often the swing vote. we had-- we are pretty comfortable that we had four votes on our side and pre-comfortable we at fort votes against us and we knew we needed
11:42 am
justice kennedy's vote. comes to gay rights justice kennedy usually holds a unique position because i don't think any other justice ever in the american history has so dominated an area like a civil rights like justice kennedy and at this point he has doubt-- we knew we had to persuade him. we had no chance of winning the case if we could not persuade him, so one of the things i did to prepare-- you know, the justices if you listen to the argument they will say to each other as justice kennedy said or as justice kennedy has earlier written, we knew i could not say that and it looked a bit too obvious for me to say that. one of the things we did instead was took at that point justice kennedy's great language from his two prior decisions and at that point it was romer and lawrence and put them on kind of a cheat seat-- cheat sheet and i walk through the streets of dc
11:43 am
for a couple of days same them out loud and i'm sure it looked like a crazy person, but the reason i did it is i wanted to have this language on the tip of my tongue so that during the argument, if i needed to use it i could say without saying as justice kennedy said, so we had a bet on our team as to whether or not i would succeed. i did actually. there was a point where he's been time is blind and every single one of the justices knew exactly what i was doing and i could see it in their eyes when i set a. but, i still have not collected on that bet. i will have to do that. >> host: the morning of arguments, solicitor general's spoke before you any wrote as as he begins arguments quote my feelings turned to a mild state of panic and you then had to rewrite your opening statement on the spot. what happened? >> guest: this is where being a trial lawyer is a good thing. we had actually talked a lot as you can imagine during this process and they had attended
11:44 am
our mood and we had attended a practice session with them, so we had a good idea of what their position was, but i think they probably would have said no, and we had not exchanger opening. i did not know what the solicitor general was going to say and when he got up to speak, the highlight of his opening argument was this issue that was probably the best example, i think, of how defensive marriage act was an insult to the gay americans and what happened-- in the military after don't ask don't tell had been repealed in congress, understandably it's not a surprise there were a lot of gay service members who were married. after all, people in the military tend to be more conservative and tend to want to get married, so you had quite a large number of gay married soldiers. but, after doma even though they were married, what happens is
11:45 am
when one of them and it happened when one of those shoulders was injured critically or even killed in the line of duty, the military could not notify their spouse of what it happened because their spouse under federal law was not their spouse and we had been hearing a lot of reports that as far as the pentagon was concerned this was horrible. they-- they were agonized by an appellate completely violated the concept of military honor and respect and sacrifice and it was driving them crazy, so my opening was very much keyed into that. when don got up to his credit used that same example in a realize i could not copy what he said so had to come up with something quickly. >> host: you explained there were multiple ways you could win in the supreme court, but not all of them would be a good thing, necessarily, for future cases that fought to in the-- vindicate the rights of gays and lesbians.
11:46 am
>> guest: so, there was a possibility here that the supreme court could say that the case only applied to ed, which it did on its face. that ed should get her tax money back, her irs check back, but they weren't really hitting a broad opinion and they talked about the impact of doma in a bunch of other areas stricken doma impacted 1100 federal statutes and eddy's case only involved one and there was a concern that they would say there is no reason for her to pay this tax, but when it comes to healthcare or child support for social security, maybe there is a reason and we will wait to hear that case later. courts can do that. there is a principle that sometimes courts should do something like that and we were concerned they would do that here. fortunately, we got the opposite. the language of justice kennedy's majority opinion in windsor could hardly be broader.
11:47 am
it speaks in this beautiful very deep, very broad language about the principle that gay people have the same dignity as everyone else and he uses the word dignity something like 11 times in that opinion. once you get to that point and say gay people have the same dignity as everyone else than it's really all over but the shouting because you can't come up with a good reason for why it's okay to treat them differently under the law. >> host: justice justice cooley in his dissent calls the opinion legalist is our goal bargo and says nationwide marriage equality-- describe happen next in the federal district courts, lower courts after the doma ruling? >> guest: justice scully has been right about this a couple of times. he said it first and lawrence that lawrence would lead to marriage equality and again in windsor and both times he was
11:48 am
correct. what happened-- and this happen faster than i expected. i thought it would happen, i just didn't think it would happen so quickly. two years following windsor i think it was 70 some courts and almost every state of the country decided that given this very broad principle in windsor that gay people had equal dignity that there was really no basis. we started getting case after case of the case in states that really no one would've expected, utah is one of the first. oklahoma was one of the early ones, virginia, indiana, where judge after judge had the same thing and you are a court reporter's i don't have to tell you this, but it was not a popularly contest. federal judges don't act out of pure pressure. they have lifetime tenure and were not doing it because they wanted to be in with their colleagues, i don't believe. they were doing it because
11:49 am
really giving the holding in windsor there was really no other result they could reach. so, we saw this remarkable unanimity. i think he said he has never seen a ground swell like in american legal history all going towards marriage equality and leading ultimately to the decision. >> host: as those cases were decided, and it was clear that this was headed to the supreme court, it was a product of what was coming out of the courts. critics charged this was an appropriate, that the courts would step in its way it should be left to the state legislatures through the democratic process to make the decisions. what was your response to that? >> guest: we have this thing in our country called the constitution and what the constitution means particularly the bill of rights in the fourth team-- the 14th amendment or the eighth amendment is that sometimes legislatures pass laws that violate the rights of
11:50 am
minority groups. sometimes those laws cannot be justified given the constitutional guarantee that every american has and legislatures pass laws all the time in the past majority of laws pass constitutional muster, but every once in a wild and you saw this with the african-american civil rights and we now sit with gay civil rights, there are laws that are passed where the only reason for passing the law is to treat a certain group differently than anyone else. the laws about banning gay marriage, not really not about marriage. it really wasn't about any other policy reason. they were about separating gay people off and making sure under the law they were different and that is what we call a constitutional no-no, in my world. >> host: legal term. >> guest: exactly. legislators should not be in the business of doing that and to go it was clear to the court that that's what those statutes were
11:51 am
based on and that this was a time and responsibly for the courts to step in. >> host: as the supreme court this year prepared to take up the gay marriage case you were involved in drafting of people's briefs. >> guest: this was really-- hilary rosen who has been involved as a gay activist now, for many many years had this great idea, which was led to use kind of the benefits of modern technology and the internet to do it amicus brief, it's never been done before. we did this brief called the people's prepared to allow people to sign on to the brief and basically posted it on the internet and anyone could read it and say they agree with it and they had to certify they had a read it and agreed with it and they could sign on. we got i think it was way over to under 50000 signatures from people in all 50 states, not surprisingly we got huge numbers of signatures in states where there were kind of ongoing marriage equality battles, texas
11:52 am
with a lot of people that signed on, i recall. when we had to deliver it to the supreme court we had to give them a certain number of copies, so it was like 50 boxes and when you look at one set of the brief it compiled about this high on the table. >> host: this summer, it was again justice kennedy who wrote the majority opinion. what was your reaction to reading that at that moment? >> guest: on the one hand i expected it. we have seen this kind of tied away the decisions and i believe the principal and logic-- i agree with justice scalia i believe the logic of light which windsor require this result, but i'm a cautious lawyer and i make a person and so i think in my heart of hearts i was so pretty nervous. when it came down i was actually in san francisco, a good place to be and when it came down it was very early in san francisco time and i saw the language and i was overjoyed. i was on a phone call, we had a conference call with the windsor team in new york and with eddy
11:53 am
and it was not quite as dramatic as when we on windsor, but it was pretty dramatic. there was a lot of screaming and crying on that call. >> host: a few federal and state judges have decided that over the decision, since it came down and in some cases that don't involve same-sex couples. there was one california, where the court rejected and challenge to the denial of his female fiancés these are condition and the court cited this to decide what a marriage was versus an engagement. how far they read from a legal perspective can you see this decision and doma as well having down the road? >> guest: i haven't thought about in terms of cases involving comparing marriages to engagements. i will have to look at that, but in terms of the right to gay people, i said in august of 2013, i give a speech in dc in which i predicted windsor was the equivalent of the battle of
11:54 am
normandy and we had to continue to take the rest of europe and there was no question we could do so. i think oberg was that pixelation legally speaking of forces and what to do another side. there is no question in my mind that windsor in this read together mean that no government in this country, state, federal, local candace can make against gay people solely because they are gay, so the era of state sanctioned discrimination against gay people is now over, no question. that is why ud-- see decision after decision and i have a case in mississippi, right now and mississippi really has the last law on the book that bans gay couples from adopting and i normally don't like to predict i will win a case, but i'm very confident that we will win this case. the next question will be what does that mean with respect to the government-- what is anyone private employers and private
11:55 am
businesses went to treat gay people differently and there i think the answer is partially nonlegal. what, i mean, by that is i don't think there is a lot of appetite in this country for any business owner any and-- anywhere in the country to say to two young girls who walk in that we will not sell you ice cream cones young ladies because you have two fathers or two mothers. businesses want to make money and businesses want to serve their customers. they have no interest in doing that and that's why you will see it from time to time in these one offs, but i don't think it will be a groundswell. i think we have one. obviously we need to clean it up for private employers. that yosi has taken the position that discriminating against gay people is the same as gender discrimination. that will have get litigated and hopefully we will get a statute through congress that basically says this.
11:56 am
>> host: before the court ruled there was the alabama supreme court that refused to issue marriage licenses going against the federal court order requiring that and as you mentioned kim davis, the kentucky click at after decision came down she also refused to issue marriage licenses. what do you make of that? does that reflect on the court? does it reflect on how people view the legal system? >> guest: i think it a refraction on andy warhol, like andy warhol said everyone will get their wet five minutes of frame-- game. i actually think that is what this is about. i think kim davis is about kim davis. i think kim davis loves clearly the attention she is getting. all of a sudden she gets invited to these rallies gets these awards and is on tv every day and i think that is what has grabbed her. every judge, every federal judge and the same thing with alabama,
11:57 am
every federal judge has looked at these issues and agrees there is no merit to them. that the ruling of the supreme court are the ruling of the supreme court and mcgovern-- we had this thing called the supremacy clause and mcgovern mistake, so again while i think you will see these one offs i think the reality is that gay couples are getting married in alabama today and gay couples are getting married in the county where kim davis is the clerk, so the reality on the ground is that quality is happening, but particularly in this kind of instant culture we live in, this instagram, twitter culture we live in, i think you will see people who are tempted to become the next kim davis because they will get a lot of attention if they do so, but i don't think it means a lot. i think it's a lot of noise and smoke. >> host: robbie caps on, thank you so much for being here. >> guest: thank you. pleasure.
11:58 am
>> that was afterwards, book tds signature program in which authors of the latest nonfiction books are interview. watch past afterwards programs online book >> as 2015 comes to a close, many publications are offering their recommendations for the best books of that year. here's a look at some of the books the "washington post" suggest to its readers. the story of adolph, a russian who spied for the americans during the cold war, his recounted by david hoffman in the billion dollars five. willian federman provides a history of gay rights and the lg bt movement and: the gay revolution. isis, the state of terror, jessica stern looks at the origins and growth of the islamic state. the "washington post" also
11:59 am
recommends eileen pollack's: the only woman in the room. looks at the discrepancy between women and men in the sciences and will haygood examines the life and impact of the first african-american supreme court justice, thurgood marshall. >> really marshall's hearings or five days stretch over 12 days and his nomination that when before six weeks. before marshall, the supreme court had been all whites and before him no nominees hearings had lasted more than a day, so with southerners leading the charge i knew there was great drama and i wanted to figure out why that happened and why they wanted to stop thurgood marshall's neck that's a look at some of the books the "washington post" recommends
12:00 pm
them over the past year. book tv has covered many of the authors and you can watch the full programs on a website, book >> now political commentator cokie roberts joins us live for in-depth and she will answer your questions at her book, which include her most recent, capital gains publish this past april. ..


info Stream Only

Uploaded by TV Archive on