Book Review by Sapphire Ng
Then Comes Marriage: United States V. Windsor and the Defeat of DOMA
by Roberta Kaplan, Lisa Dickey
W. W. Norton & Company
Copyright October 2015
Hardcover, 336 Pages
The United States v. Windsor case—previously Edith Schlain Windsor v. United States of America—competently examined from a legal and anecdotal vantage point. Legal concepts and issues of the Windsor case are delightfully intriguing, its underlying love story between Windsor and her spouse, Thea Spyer, intimately heartwarming. This legal recount boldly forefronts the human facet of the gay rights struggle additionally through narratives of the author’s personal journey and struggles as a lesbian, and other illustrative circumstances of homosexuals “scarred” by the inherently loaded legislation, the Defense of Marriage Act (DOMA).
This book, in charting the success of the Windsor case, is a rather heartening and uplifting read for homosexuals. The unique plights and struggles of the homosexual community as described in the book would also be most readily relatable to gays and lesbians. Parents of gay children would potentially find this book to be deeply meaningful and even spiritually transformative, and thus ought to read it. This book could be a timely gift for people who have gay relatives, friends and acquaintances; there will be much to gain in terms of greater knowledge and awareness of the legal climate encompassing the issues of gay rights and marriage equality.
This book is a compelling read for those intellectually and emotionally vested in the advancement of gay rights, those passionate about the gay rights movement, or about social and civil rights issues in general. Enjoyable and easy-to-read, this book is particularly suited for the general reader interested in uncovering the nuts and bolts of the landmark Windsor case.
Furthermore, the extraordinary legal victory as achieved by the plaintiff’s attorney of the Windsor case despite having “never argued a Supreme Court case before” might just be the ideal narrative to reinvigorate a weary and uninspired practicing lawyer. The very unmistakable human facet of this case and its contribution to humanity might also serve as a powerful and opportune reminder to current legal practitioners of the motivations underlying their very first foray into the law, be it to champion the rights of voiceless minorities, to right wrongs, or otherwise. Most of all, the reader will have the opportunity to share in the intoxicating excitement and sense of purpose as experienced by the fiery plaintiff’s attorney as she tirelessly worked on the case.
The most intriguing content in the book is justifiably the revelatory insights into the legal strategies employed by the plaintiff’s counsel for the Windsor case. The details never fail to be titillating from arguments persuading the Supreme Court to consider DOMA under the judicial review of heightened scrutiny, to the combined legal and emotional strategy for the case. It is beyond fascinating to learn of the shrewd legal strategy devised that helped to avoid “branding everyone who voted for the [DOMA] statute in 1996 a bigot or homophobe.” It is also astoundingly eye-opening to be privy to unconventional but brilliant anti-DOMA arguments—the peculiar fact that for same-sex couples, DOMA apparently aided in the couple’s or a spouse’s sidestepping of certain tax laws, federal laws and ethics rules. DOMA for example, notably “allowed same-sex couples to engage in tax avoidance in ways that opposite-sex couples couldn’t.”
It is also especially riveting to learn of the ingenious ways the plaintiff’s counsel tailored their arguments to subtly lobby certain justices on the Supreme Court—by echoing a justice’s language, and taking advantage of the knowledge of another justice’s “obvious” disapproval of “cases brought solely to advance social causes.” Along the way, the reader learns the essence of the plaintiff’s counsel’s argument through memorable catch phrases such as “already married, already gay,” and “all about dignity,” and recognizes the intent of the team to frame the Windsor case as more than “just an LGBT issue but a human rights issue.”
To the author’s credit, the book aptly painted a brief picture of the inching progress of gay rights in America prior to the Windsor case. In addition to discussing other prior and existing legal challenges to DOMA, the book noted the nature of discrimination homosexuals were subjected to—the lack of recognition of their marital rights, employment rights, and more. It was absurdly a “felony” and illegal “to be gay and employed in any capacity by the federal government” or by companies with federal government contracts at “the height of the McCarthy period.”
This book elegantly eviscerated the Defense of Marriage Act. The legislation was brazenly referred to as one that quintessentially and “officially sanctioned discrimination against one group of Americans,” that perpetuated “sweeping, undifferentiated and categorical discrimination” against homosexuals, and that shamelessly expressed moral and even insidious disapproval of homosexuality. With the additional use of immensely loaded descriptors such as “antigay,” “irrational,” and “terrible” in reference to DOMA, the reader would be coaxed to perceive the law as one that indeed did not seem to possess even any remotely redeeming qualities.
The structure of this book appeared to mirror the plaintiff counsel’s tactical approach for the Windsor case, for better or for worse. The complaint the plaintiff’s attorney filed with the Supreme Court remarkably and unusually began with and gave preeminent emphasis to the romantic narrative of Windsor and her spouse; the legal issues in the complaint in turn seemed to be relegated to the sidelines, addressed disproportionately less, and some might even say, attributed secondary importance.
Whilst the title of the book explicitly proclaimed the Windsor legal case as its primary subject matter, the narrative appeared to primarily forefront Windsor’s love story. With a sizable bulk of the beginning of the book thus almost uniquely dedicated to the romantic past of Windsor and her spouse in a near vacuum absent the interposition of meaningful references to the Windsor lawsuit, the reader might feel occasional tinges of confusion and even start to harbor a bubbling question, is this book actually a romantic memoir? The narrative disconnect between the Windsor love story and the Windsor legal case early on in the book certainly bolsters such an impression.
Additionally, despite the distinctly practical and remarkable emphasis on the human angle of the Windsor suit in an attempt to humanize the legal battle, such an approach when unchecked however seemed poised to erode the merits of the book. It was more than faintly puzzling to realize that the issue forming the legal backbone of the case—the matter of tax-bill injury and estate taxes—mysteriously evaporated as the case progressed, not even to be mentioned again at the very least at the culmination or conclusion of the case.
The general reader might get tripped up at a particular juncture nearing the end of the book—the Windsor case court dialogue between the defendant’s counsel and the Supreme Court justices. The inclusion of snippets of the court transcript, complete with undiluted and unsimplified legal discussion involving potentially elaborate legal concepts might pose some difficulty to the general reader. Considering the rather minimal inclusion of such potentially formidable legal dialogues however, the reader certainly ought to feel free to exercise the freedom to simply skim or even skip the dialogues.
Disclaimer: I am not affiliated to the publisher nor the author of the book. This book review is the result of my personal reading and honest opinion.