Law Professor Pamela Karlan remembers marriage rights activist Edith Windsor
The Stanford Law School posted a remembrance of Stanford Supreme Court Litigation Clinic client Edith Windsor by Law Professor PAMELA KARLAN. Windsor was the lead plaintiff in the Supreme Court of the United States case United States v. Windsor, which successfully overturned Section 3 of the Defense of Marriage Act and was the legal landmark victory in the fight for same-sex marriage in the United States. She died Sept. 12. Following is Karlan’s remembrance.
Edie Windsor had a signature set of pearls and a signature set of advice: “Don’t postpone joy” and “Keep it hot.” In the five years I knew her, no one followed that advice more resolutely.
I began working on Edie’s challenge to the federal Defense of Marriage Act (DOMA) on July 4, 2012, when Robbie Kaplan, who was representing her, sent me an email asking if I was interested in helping out. We often say about the Stanford Supreme Court Litigation Clinic (which I co-direct with JEFF FISHER) that we serve as local counsel, only our locale is the U.S. Supreme Court. Robbie brought me in to help with a petition for cert. before judgment; Edie was 83 years old and there was then no telling how long proceedings in the Second Circuit might take. (As it turned out, the Second Circuit issued a ruling in our favor with unusual dispatch.)
That fall, I went to New York to meet Edie in person. I’d already watched the documentary about her four decades with Thea Spyer – “Edie and Thea: A Very Long Engagement”—and been captivated: Edie was smart, Edie was successful, Edie was beautiful, Edie was charming, Edie was the kind of devoted spouse anyone would be blessed to have. (And Edie had a cottage in the Hamptons – hence, the estate tax bill that DOMA inflicted.) But meeting her in person showed me that Edie was wild and fun and what we should all hope to be in our ninth decade. We wrote in the petition that “[a]fter Thea’s death, Edie suffered a heart attack and was hospitalized with stress cardiomyopathy — an ailment known as ‘broken heart syndrome’ — which caused irreversible damage to her heart.” But in one important sense, that just wasn’t true: she had the heart of a lion.
On December 7 – another date already famous in American history – the Supreme Court agreed to hear Edie’s case. So we put together a clinic team to work on the briefing throughout the winter quarter. The Stanford contingent of Team Windsor took primary responsibility for the jurisdictional question posed by the Supreme Court. Nico Martinez, Elizabeth Dooley, Michael Baer, Bailey Heaps and I hunkered down in a room in the clinic and spent hundreds of hours going through cases famous (like INS v. Chadha) and abstruse (like In re Metropolitan Railway Receivership – don’t ask). We also worked closely with our colleagues at Paul Weiss and at the ACLU on the substantive merits brief. Our clinic is famous for its intense all-nighters and innumerable line edits, but in Windsor, we outdid ourselves. And Edie was A Very Engaged Client: near her bed, she kept a binder with all the briefs. She asked us great questions about the details large and small. And she came to the moots, including the one at the Solicitor General’s office.
In March, we went to Washington. It was Passover, so we had a huge seder two nights before the oral argument – that night truly was different from all other nights. And none of us will ever forget argument day. Not so much for what happened inside the Courtroom – that was kind of a blur – but because of what happened afterwards. We walked down the 44 steps – one for each year Thea and Edie were together – as a team, hearing the crowd yell “Edie, Edie, Edie.”
When I think of what I wish for my students in their lives as lawyers, I can hope for nothing more than that all of them have a day like that.
In the years that followed, I saw Edie at panel discussions, at parties, at another seder and at the apartment she had shared with Thea. The last time I saw her, I gave her a mug with pictures from the argument. It’s got that photo of all of us coming down the stairs, and a photo of her pointing to the circle pin Thea gave her to signify that very long engagement. It’s got a photo of the White House lit up in the rainbow colors on the second anniversary of the decision in United States v. Windsor, when the Supreme Court issued its decision in Obergefell v. Hodges making marriage equality the law of the land. And right next to the pink handle – because Edie almost always wore something that was pink – it says “Team Windsor: Keep It Hot.”
Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School. One of the nation’s leading experts on voting and the political process, she has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund and a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice (where she received the Attorney General’s Award for Exceptional Service – the department’s highest award for employee performance – as part of the team responsible for implementing the Supreme Court’s decision in United States v. Windsor).