Then Comes Marriage (4 page)

In fact, I did hope that Judge Kaye might be able to persuade one of the other judges to change his vote. But in order to do that, we needed more time, thanks to a judicial scandal that was playing out that summer. A prisoner released by a trial court judge on bail had committed a horrific crime, and the New York tabloids were gleefully pillorying the state's judges and Judge Kaye in particular for being too soft on criminals. As the chief judge, the top judicial official in New York, Judge Kaye spent a lot of time responding to the media attacks, and I was the one she tapped for the time-consuming task of helping her draft her speeches.

So Judge Kaye agreed to the unusual step of holding the case over to the next session. And then I went to work.

One particular judge, Howard Levine, had started his career as a Family Court judge in upstate New York, and he seemed more likely than the others to switch his vote. I really believed that he wanted to vote our way, but he just hadn't found the right way to do it. I started lobbying his clerk, a friend of mine named Alicia Ouellette, hammering on a somewhat obscure point about the interpretation of statutes that potentially raise constitutional concerns. It was a technical argument, but it did not matter how we got the vote. We had to get it.

I became obsessed with winning Judge Levine's vote, talking with Alicia as often as possible while opinions were being drafted and circulated among the judges. Everyone in the office knew how badly I wanted this decision, but no one knew why except for the only other lesbian who worked at the Court of Appeals, a woman who was as closeted as I was. She saw what I was doing, and one afternoon she told me she did not think it was appropriate that I was pushing so hard to win the vote. The statute was the statute, and I had no business overstepping just because I happened to be gay myself.

We got into a very heated argument, which, as I recall, ended in my inviting her to commit an anatomically impossible act. It was definitely not my politest moment, but I really believed that she was wrong. She was, in my opinion, coming at the argument from a place of internalized self-loathing as a lesbian that blinded her to looking at the issue on the objective merits of my argument: that gays and lesbians were equally good parents and that their children needed and were entitled to the same legal protections as all other children. And that self-righteous claim to impartiality pushed all my buttons—in part because I was still struggling with self-loathing myself. But despite my lingering shame about being gay, I knew that fighting for this vote was the right thing to do, no matter what.

In August, more than two months after the initial 4–3 vote, I received a call from Alicia Ouellette. “We're on board,” she told me. “Congratulations. Chief Judge Kaye is now writing the majority opinion.”

I started whooping and screaming right there in my office, a wild banshee in low-heeled black pumps. Judge Kaye was having a meeting with some other appellate judges in the conference room next door, and someone asked, “What's going on?”

“Oh, don't mind that,” Judge Kaye apparently replied. “That's just my law clerk, Robbie.” Judge Kaye had no idea what I was carrying on about, but it was obviously good, and she knew that I would tell her soon enough. When I did, she was thrilled and I knew that my deep respect for her was well founded. For the first time ever in New York State, gay and lesbian partners would be free to adopt each other's children, giving their families desperately needed legal protections.

The way that the majority opinion written by Judge Kaye framed the inquiry produced the answer to the question in the case:

Under the New York adoption statute, a single person can adopt a child. . . . Equally clear is the right of a single homosexual to adopt. . . . These appeals call upon us to decide if the unmarried partner of a child's biological mother, whether heterosexual or homosexual, who is raising the child together with the biological parent, can become the child's second parent by means of adoption.

Ultimately, Judge Kaye's opinion for the court held that individuals who were participating in raising their partner's child should be permitted to become a second parent:

To rule otherwise would mean that the thousands of New York children actually being raised in homes headed by two unmarried persons could have only one legal parent, not the two who want them.

Judge Kaye's opinion actually says very little about the rights of gay people; rather, it focuses almost exclusively on the rights of the children. The truth is, in 1995, we would never have found the votes for this case by arguing for the rights of gay people. At that point, most people did not believe that gay people deserved the same rights as straight people. Judith Kaye and her colleagues needed to make a different argument, essentially saying that these kids were being born whether society liked it or not, and that it was obviously in their best interest to have two parents, rather than one. As Judge Kaye put it, to deny children:

the opportunity of having their two de facto parents become their legal parents, based solely on their biological mother's sexual orientation or marital status, would not only be unjust under the circumstances, but also might raise constitutional concerns in light of the adoption statute's historically consistent purpose—the best interests of the child.

If Judge Kaye had not made her bold decision to carry the case over to the next session, the decision in
Jacob
and
Dana
would have gone the other way, with disastrous consequences for gay families throughout New York State. On a purely personal note, I would not have been able to adopt my own son, Jacob, in 2006.

And without the ability to marry, we would have had no standing to defeat the Defense of Marriage Act, the odious law passed the very next year by a panicky Congress and signed into law by President Bill Clinton.

IN THE SUMMER
of 1996, marriage equality was not a reality anywhere in the United States, but the state of Hawaii was coming way too close for many conservatives' comfort. The Hawaii marriage case, filed by those three pioneering couples, had made its way up to that state's Supreme Court, which in 1993 declared for the first time that denying gays the right to marry was a discriminatory act. The Hawaii court then sent the case back down to a trial court to determine whether such discrimination was justifiable under the state constitution.

This sent the right wing into a frenzy. Not only was Hawaii flirting with marriage equality, but President Clinton—the first Democratic president in twelve years—had declared his intention to end the ban on gay men and lesbians serving openly in the military. Conservatives fought back, forcing Clinton into a box with the Don't Ask, Don't Tell policy, which had been instituted in February 1994. And in midterm elections that same year, the Republican Revolution swept into Washington, with the GOP winning control of both the House and the Senate, Newt Gingrich claiming the gavel of Speaker of the House, and the Christian Right reaching new heights of power.

The culture wars were on. In 1995, President Clinton signed an executive order declaring that gay men and lesbians could not be denied security clearances due to sexual orientation, and Hawaii's Commission on Sexual Orientation and the Law became the first state body to recommend that gay men and lesbians be given the right to marry. That same year, a gay man named Scott Amedure was murdered after he revealed his crush on a straight man on
The Jenny Jones Show
, and Ralph Reed, the head of the Christian Coalition, appeared on the cover of
Time
magazine alongside a headline dubbing him “The Right Hand of God.”

Amid all this crossfire, the Hawaii case marched on. Fearful that Hawaii might actually legalize marriage equality, Georgia Representative Bob Barr introduced the Defense of Marriage Act in the House in May 1996. The purpose of DOMA was to define marriage as being between a man and a woman, thereby denying federal rights to any gay married couples, regardless of what certain states might choose to do. And the House Judiciary Committee's report made the reasoning behind DOMA clear: “to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality”—a phrase that would later be used as a powerful tool to defeat DOMA .

President Clinton signed the law in the dead of night, at 12:50 a.m. on September 21, 1996, with no fanfare or cameras present, no ceremonial handing out of pens. LGBT activists bitterly protested the law, but I was not in the United States to watch those protests play out. Instead, I was in Tokyo working on a corporate case for Paul, Weiss, having returned to the firm after finishing my clerkship with Judge Kaye.

Martin London, a powerful Paul, Weiss litigation partner, had invited me to work on the Tokyo case, which involved a Japanese executive who had lost more than a billion dollars through rogue trading in copper. As Marty recalls, he was basically commuting to and from Tokyo at that time, and he decided that the project needed more than one-week “drop-ins” from him. It needed a full-time head of the PW-Sumitomo office. So Marty called me up at my parents' house in Cleveland, where I was visiting my family, and asked if I could come back to the “mother ship” and work on this case. I called Judge Kaye for advice and she immediately said, “Robbie, if Marty London wants you, you go!” I ended up working interminable hours, corralling huge teams of lawyers and paralegals reading through literally rooms of documents, enduring long dinners of countless glasses of sake and still-wiggling pieces of raw fish, while dealing with the stark cultural differences between Japan and the United States in terms of the role of women, all the while jetting back and forth every six to eight weeks between New York and Tokyo. Marty himself later commented that I hadn't just “smashed a glass ceiling”; I had “smashed a concrete cultural ceiling that had existed for thousands of years.” He said, “I never had a doubt, or I would not have asked Robbie to come.” And it all paid off in 1998 when I became a partner at Paul, Weiss at age thirty-one. Whatever was happening in the LGBT civil rights movement, my priorities were elsewhere.

Then I met Rachel Lavine. And that changed everything.

RACHEL AND I
met when my old friend Amy Rutkin organized a group of friends to go to Rosh Hashanah services at Congregation Beit Simchat Torah, New York's gay and lesbian synagogue, in September 1999. I had recently broken up with my long-term girlfriend, and Amy had a sense that Rachel and I would like each other, so she tried to get us both to go to services with her.

I did not sit next to Rachel at the service, but walking out afterward, we bonded over the fact that we both thought the sermon (which had focused on Judy Garland) did not have the depth we expected for one of the most important Jewish holidays. Or as Rachel said, to the bemusement of the rest of the group, “Just because I'm gay doesn't mean that I can't think about nongay things.” I was intrigued by Rachel's intelligence and candor, and by the time we arrived at the dinner Amy had arranged, I was angling to sit next to her. Rachel and I talked a lot that night, and I was impressed by how smart and funny she was, not to mention beautiful and warm. I wanted to see her again, but apparently Rachel had come away from our evening with a different thought: she wanted to set me up with a friend of hers. Amy would have none of it. When Rachel called her to suggest the idea, Amy said, “You know, I think Robbie would rather go out with you.” So that is how it started, with Amy the crazy genius yenta matchmaker plotting to get us together.

On one of our early dates, Rachel, who was extremely active in local politics, took me to a political fund-raiser, which is when I began to understand just how deeply involved she was. She was on a first-name basis with all the elected officials there, people I had only read about in the newspapers. It soon became clear that Rachel had been walking the walk for a very long time, devoting herself to the causes that she cared about.

And Rachel cared passionately not just about social change but also about the history of social change—one of my fascinations as well. Unsurprisingly, we often had different interpretations of key moments of history. For example, later that year we went out for dinner at a small, charming bistro in Chelsea and spent a romantic evening heatedly arguing about the relative political power of the Mensheviks versus the Bolsheviks during the Russian Revolution and whether peaceful revolution was ever possible.

At one point Rachel (who had studied Russian history in graduate school) told me that had we both been alive in Russia at the time, I surely would have been a Bolshevik since I always like “to be on the winning side.” Horribly offended, I told Rachel that was the most insulting thing anyone had ever said to me. As the other people in the restaurant looked on as if we were completely nuts (which, perhaps, we were), I told Rachel that she was completely wrong: I too would have been killed because I would have remained loyal to her and would have been dragged along when she and all the other overly idealistic Mensheviks were murdered in the Bolshevik-led purges that followed. And yes, in case you are curious, Rachel and I still have debates like this to the present day.

When I was ten, I was busy planning my legal career. By contrast, when Rachel was ten, she had long been involved in her father's campaigns to get reelected to the Connecticut state legislature. After getting into an argument with her parents one summer morning about rules and chores, Rachel staged her first political protest: she drew three big posters saying “Children Are People Too” and recruited her little brother and sister to march around the living room, protesting with her. In the 1980s, when I was a freaked-out, closeted college student, Rachel was protesting the shutdown of the lesbian co-op at Smith College and getting quoted as the movement's leader in the
New York Post.

Rachel has always been, in her own words, someone who believes that the world should—and could—be a fairer place. From her participation in New York's Gay & Lesbian Independent Democrats to her work helping some of the first openly gay New York candidates like Deborah Glick, Tom Duane, and Christine Quinn get elected to public office, she has always been at the forefront of LGBT political activism. By the time we met, in 1999, I was out of the closet at Paul, Weiss, but only in that tiptoeing, nothing-to-see-here, don't-ask-don't-tell kind of way. I had brought my former girlfriend to a firm dinner, but otherwise did not really talk about her or our relationship. Being involved in a relationship with Rachel, I soon realized, would require stepping further outside the closet. In fact, it would mean burning down the closet door altogether.