‘Then Comes Marriage: US v. Windsor and the Defeat of DOMA’ by Roberta Kaplan (with Lisa Dickey): Book Review

In Then Comes Marriage, Roberta Kaplan, lead attorney in the 2013 US v. Windsor Supreme Court case, details the story behind the defeat of the Defense of Marriage Act.  Kaplan manages to artfully weave her own biography – the shame of growing up gay in a more conservative time – against the backdrop of an American landscape bedeviled by the Defense of Marriage Act, and the destructive impact that the legislation had on committed same-sex couples – specifically that of Edie Windsor (for whom the SCOTUS case is named) and her late wife, Thea Spyer.

Unlike Jo Becker, who tries and fails to maintain a sense of journalistic objectivity in her book, Forcing the Spring (detailing the behind-the-scenes story of Hollingsworth v. Perry ­– argued before the Supreme Court the day prior to Windsor), Kaplan can, and does, embrace her role as an activist.  She tells the story from the perspective of not only a client advocate, but also of someone who is actively affected by the outcome of the case.  She does away with all objective pretense – and here that’s okay, because Kaplan is an advocate, and her own story is uniquely intertwined with the case she is arguing.  And, while Kaplan’s eagerness to regale the reader with her own life story alongside that of Windsor (something readers interested only in the history of the case may find irritating) slows the narrative from really gathering momentum, it does eventually play well.  As the reader learns, Kaplan has unique experience with Spyer many years prior to even meeting Edie Windsor that, if not necessary to the story, is certainly endearing.

While Then Comes Marriage has a slow start, it finished powerfully.  It shines in a number of areas.  First, for readers unfamiliar with the judicial process, this book offers a basic primer that is easy to understand and goes beyond, with Kaplan skillfully injecting a sense of urgency and drama to some relatively mundane legal processes.  There is no heavy-handedness in Kaplan’s education of the reader.  Further, for readers of Forcing the Spring, or those otherwise familiar with the two cases covered in these two books, it is clear that Kaplan chose a different legal strategy than did the lawyers seeking to overturn California’s Prop 8.  While the challengers of Prop 8 chose to pursue a 50-state solution (wholesale legalization of same-sex marriage, Kaplan was skeptical that the Court would be receptive and, instead, deliberately chose to focus on the merits of the Windsor case only.  In the end, this pragmatic approach led to a larger victory than did the 50-state approach.  Those arguing to overturn Prop 8 won their case on a technicality – the Court found that supporters of Prop 8 did not have standing to sue.  As a result, the lower court ruling, overturning Prop 8 and reinstating same-sex marriage in California, went into effect.  This was a limited ruling – certainly not a 50-state solution.  In Windsor, however, the Court ruled that the Defense of Marriage Act, wholesale, was unconstitutional, delivering a 50-state solution to Kaplan and her team.  And, Kaplan does lyrical justice to the storytelling.

In the end, Then Comes Marriage is a lovely book.  It is carefully rendered quilt – a personal journey of self-acceptance, a civil rights courtroom drama, and, at its heart, a love story.  While the story is slow to take flight, it ultimately soars.

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