It’s All about Edie, Stupid: Lessons from Litigating United States v. Windsor

Abstract

There is really only one thing that I know for sure. No human being knows what life has in store for them. My client Edie Windsor surely didn't. As a young, middle-class woman growing up in Philadelphia after the Depression and World War II, she obviously had no idea what her future would hold. When asked shortly after we filed our case what it felt like to be a plaintiff, Edie remarked that it's one thing to be as a lesbian, but it's another thing entirely to be the lesbian who just happens to be suing the United States of America. (1) The same, of course, is true for me. As a closeted lesbian high school student in Cleveland, Ohio, as a closeted college student at Harvard, or as a (slightly) less closeted law student at Columbia Law School in the late 1980s, if you had told me that that one day, as an out litigation partner at Paul, Weiss, I would marry a woman, have a child, and then win a landmark civil rights case before the United States Supreme Court, I would have told you that you were certifiably insane. So when I received the telephone number of a then-eighty-year-old lady by the name of Edie Windsor, I obviously had no idea what would happen. Indeed, Edie at first wasn't so sure that she wanted to hire me. (2) In order to convince her, I had to play for her a video clip from my 2006 oral argument before the New York Court of Appeals in the New York marriage case. Keep in mind that perhaps this wasn't the best form of attorney advertising since that was a case that I lost. Badly. It wasn't even close, 4-2. (3) But fortunately for me, Edie was persuaded and ultimately, the Supreme Court issued its landmark decision that gay couples have the same right to be treated with dignity and respect that straight couples do. (4) Since I have had some time since the Windsor decision to reflect on that experience, I thought I would share with you some lessons that I learned from litigating the case. It is worth noting that I did not build my career to become a Supreme Court practitioner. I did not clerk for a Supreme Court Justice. I did not work in the Solicitor General's Office. In fact, my oral argument in Windsor last March was my first appearance ever before the United States Supreme Court. Instead, I grew up as a trial lawyer in the Paul, Weiss litigation department. I. Facts Matter One of the most important lessons that every trial lawyer learns is that facts matter. They matter a lot. In fact, any litigator worth their salt knows that facts can be stubborn things. It is unwise, if not foolish, to bring or defend any case without paying very close attention to every detail of the facts before, during and after trial. So what did this mean in the context of United States v. Windsor? First and foremost, it meant that we knew from the very beginning, to borrow a phrase from Bill Clinton's first presidential campaign, that It's all about Edie, stupid. (5) This was significant not only because of who Edie Windsor is, but because in contrast to many of the LGBT rights cases that had been brought in the past, our case involved only one plaintiff. I think that what often got lost in previous gay civil rights cases with multiple plaintiffs are the stories of the plaintiffs themselves. After all, it is hard for a judge or jury to focus on several plaintiff couples at once. But it is much easier to focus on only one. Unfortunately, when the facts fade into the background, a gay civil rights case can look more like a debate between Fox News and MSNBC than a case about real people and their lives. Our view was that the best way to defeat DOMA was not to focus on lawyers or pundits, but instead to tell the story of how DOMA harmed two real people, Edie Windsor and her late spouse, Thea Spyer. How did we do that? For one, we drafted what old-time New York practitioners would call a speaking complaint. (6) That's a more lengthy complaint than what is required by the Civil Practice Rules that attempts to tell a story. …