It was about a year and a half into my time at Paul, Weiss that I met Judith Kaye. She had recently been named chief judge of the New York Court of Appeals, the state’s equivalent of the U.S. Supreme Court, but instead of resting on the laurels of her new position, she immediately assigned herself the task of reforming New York’s broken jury system. At that time, almost anyone with or without a brain could get out of jury service in New York merely by citing any one of nearly two dozen automatic exemptions, such as declaring that they were an embalmer or a Christian Science practitioner. Judge Kaye sought to fix that problem, among many others in the court system, so that New Yorkers could truly be tried by a jury of their peers.
Judge Kaye tapped Paul, Weiss partner Colleen McMahon to lead the Jury Project, and Colleen invited me to work with her on it as a junior associate. Colleen had become the first woman litigation partner at Paul, Weiss in 1984, and she and I had bonded almost immediately from the minute I came to the firm. One afternoon in 1993, we walked into Judge Kaye’s chambers for our first meeting. Apparently Judge Kaye liked me, because at the end of the meeting, she pulled Colleen aside and told her that she wanted me to come clerk for her. Colleen did not tell me this until months later when the Jury Project’s work was completed. By then, I had already finished one clerkship with Judge Wolf in Boston, so I was not exactly eager for another. On top of that, several partners at Paul, Weiss advised me against taking the clerkship, saying it was time for me to get down to the business of litigating cases. But not only was Judith Kaye the highest-ranking judge in New York State and the first woman to achieve that position, I also really liked her. So when she asked me to begin clerking for her after the Jury Project’s report came out, I enthusiastically said yes.
Most of the cases I worked on in the year and a half I spent clerking for Judge Kaye were interesting though uneventful. But near the end of my clerkship, the court got a case that would change the lives of gay couples and their families in New York—including, ultimately, my own.
The case was about adoption. Under New York law at that time, any person married to a biological parent could easily adopt his or her spouse’s child. If you weren’t married, however, you could adopt your partner’s child only if your partner’s own parental rights were terminated. So for unmarried couples, either straight or gay, there was no way to create a two-parent family through adoption short of marriage. And because marriage equality was a distant dream in 1994, this essentially meant that gay and lesbian partners could never legally become coparents to their children.
Two cases challenging this policy had made their way through the New York courts: Matter of Jacob had been brought by a straight couple, and Matter of Dana by a lesbian couple. I was dismayed when the court decided to hear the two cases together because the stakes were clearly so different. It was one thing to tell straight couples that they must marry before adopting each other’s kids, since at least they had that option. But it was quite another thing to have the same requirement for gay or lesbian couples since it was impossible for them to get married. Unlike the straight couple, if the lesbian couple were to lose the case, their family would be at risk, with no legal protections, and there would be absolutely nothing they could do about it.
For the first time, I found myself taking part in a case that could affect me as a lesbian. I did not have kids and did not know if I ever would, but I desperately wanted the seven-member court to rule in favor of the couples. I knew Judge Kaye would vote for the single parent’s ability to adopt, but I was not sure whether she knew just how personal my interest in this decision was. I was still so deeply closeted that I had told only a few people I worked with that I had a girlfriend, and Judge Kaye was definitely not one of them.
Even so, in the time I had been clerking for the judge, she and I had grown very close. We often drove to and from Albany together, talking the whole way while taking occasional detours to the Woodbury Common discount shopping center, where she would inevitably urge me to buy more colorful clothes. We worked well together and had similar opinions on most legal issues, including those having to do with the rights of gay people.
In fact, four years earlier—the same year that my mother banged her head against the wall—Judge Kaye had bravely cast the sole dissenting vote in favor of a lesbian parent in a case before the New York State Court of Appeals. In Matter of Alison D., a lesbian sued for visitation after she and her partner, the biological mother of their son, split up. Six judges voted to deny Alison D. visitation rights, while Judge Kaye, in her dissent, noted that “as many as eight to ten million children are born into families with a gay or lesbian parent” and observed that the decision “falls hardest on the children of those relationships, limiting their opportunity to maintain bonds that may be crucial to their development.” She did not see gay and lesbian parents as being any different from straight parents, which was a pretty radical view in 1991.
Working with Judge Kaye was a wonderful experience professionally, but it was also meaningful to me personally. She was about my mother’s age and she really understood and valued what drove me. She also had a daughter about my age who already had children. One afternoon, I joked to her, “You know, I think my mother wishes I were more like your daughter.” The judge just laughed and said, “Oh, Robbie, your mother could never say such a thing about you.”
Even though Judge Kaye once tried to fix me up with a guy she knew in the mayor’s office, I still had this odd suspicion that she knew I was gay. Which just goes to show, as a closeted lesbian, how incredibly sensitive I was to this whole issue at that time. As I later learned, Judge Kaye had no idea I was gay, and even if she had, I sincerely doubt she would have cared. But that is the problem with having a secret—you are always afraid it will be exposed. Colleen McMahon, who had become a close friend, told me, “You’re not giving Judith enough credit.” Looking back, I can see that, as usual, Colleen was right.
At the time, though, Judge Kaye was both a maternal figure to me and a professional role model. I could not bear the idea that I might once again experience the same rejection I had gone through with my own mother. It might have crushed me.
ORAL ARGUMENTS IN the Jacob and Dana case took place on June 5, 1995. The next day the seven judges voted and the split was 4–3, with Judge Kaye on the losing side.
Typically, after a vote is taken, the court hands down its opinion within a few weeks—certainly by the end of the session. As Judge Kaye’s clerk, my task was to help her write her dissent, but I refused to accept that the decision was going against the couples—and their children. I knew it was wrong, as a matter of both constitutional and family law, where the standard is the best interest of the child. So I asked the judge if she could arrange to have the case held over the summer to the following session, which is almost never done. Judge Kaye asked me why, since it seemed highly unlikely that we could convince one of the other four judges to switch sides. “It’s not about getting the fourth vote,” I told her. “We just need time to write a better dissent.”
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.
I was drawn to Rachel’s fearless, outspoken nature, but it also made me anxious—especially when it brushed up against my own lingering internalized homophobia. The first time Rachel met my parents was a classic example.
For months after the head-banging incident, my mother and I did not speak at all. Gradually, with the help of my father and Grandma Belle, we were able to bridge that gap, and eventually we resumed our old habit of talking almost daily. My parents had made a lot of progress since that time in tolerating the idea that I was a lesbian, though we still had our rough spots.
I first introduced my parents to Rachel over dinner at a steakhouse in Grand Central Station. Right from the start we had a culture clash, with Rachel’s directness and strong sense of fairness bumping up against my parents’ Midwestern sense of reticence and stoicism. During the course of dinner, my mother asked me about an old law school friend, a woman who had had a disconcerting response to my breakup with my girlfriend of seven years. I had been pouring my heart out about the split to this friend, and she had responded by completely ignoring what I was saying, oddly changing the subject to the topic of a lace tablecloth her mother had recently given her. And this was a close friend, a well-educated woman who had gay friends besides me and who had known my ex-girlfriend. She was either unable or unwilling to discuss the end of my relationship, much less give me any comfort, since she clearly thought the subject was either trivial or something best kept quiet about, and that had hurt me still further.
After I finished telling this story, my mother said that she did not see what my friend had done wrong and that I should not be so touchy.
“What do you mean?” Rachel responded. “Robbie and her girlfriend were together seven years. This was like a divorce. It’s really homophobic that her friend did not acknowledge that.”
My parents were shocked. This was not the way they communicated with me or with anybody in their social circle, much less with someone they had just met. But that is Rachel’s way. She believes in being a truth-teller. At that moment, I was simultaneously freaked out and a little bit thrilled. Rachel was sticking up for me. No one had done that for me in that way before. But Rachel was and would always be on my side, and if she saw me being the victim of any kind of unfair or unkind treatment, including homophobia, she was going to speak up even if I was afraid to. Or perhaps especially when I was afraid to. (I should also add that my parents eventually came not only to accept Rachel’s approach but to embrace it. When the woman in question encountered my mother years later while putting together her wedding registry, she pretended that she had invited me and that the invitation had been returned with a bad address! Since the wedding had yet to occur, my mother whipped out a piece of paper and wrote down my home address—with Rachel’s full name on it. “Try again,” my mom advised. Needless to say, we never received that invitation.)
It was not always easy for me to get used to Rachel’s fearlessness and her willingness to challenge what she saw as wrong, no matter what. She, in turn, had a hard time with what she saw as my more diplomatic—or perhaps conciliatory—need to defer to social convention, so we had our share of heated conversations in those early years. And when we clashed, Rachel wanted to discuss it, to talk about our feelings and where they came from and why. Since feelings were messy, sometimes painful, and often not subject to rational control, I did not always want to go there. There were days when I wanted to let things go. But with every discussion and argument we had, I was learning not to repress myself so much. And over the years as I have changed, those around me have changed and grown as well, including Rachel, who is now more patient with people who may have different views.
Even so, there was no escaping the complicated feelings we both had about taking our relationship to the next level: becoming domestic partners.
Marriage still was not available to gay Americans in 2002. Rachel and I had decided to become domestic partners, in large part for health insurance reasons, so it was a practical as much as a romantic endeavor. Unexpectedly, I found myself beset by a complicated array of feelings about the whole thing as we drove down to the New York City Clerk’s Office to complete the paperwork. We had to stop at a bank to get some forms notarized, and I was overcome by a mixture of anxiety and frustration.
As lesbians growing up in the 1970s and 1980s, Rachel and I had no out and open role models to follow in creating a committed relationship or to support us as a couple. Of course, we knew older lesbian and gay couples, but often those relationships were an open secret at best. And their relationships were never seen as equivalent to those of straight married couples—significant, perhaps, but not equal. One of the great benefits of marriage is that it gives couples the opportunity to experience their community rallying around them, to feel the support of loved ones who pledge to celebrate the joyous moments but also to be there for them during the dark times as well. Gay people were never allowed to have that community support, and I think it wounded many of us in many ways. Because we had always been excluded from marriage, many of us had never fully understood what is at the core of the marriage experience—that it is not simply a relationship between two people, but also a relationship between a couple and their larger community. I think I felt in my bones the limits of what domestic partnership would grant to us in those moments before we registered. It bothered me that we were denied a right that any random straight couple had. The fact that two drunk heterosexual strangers could get hitched in ten minutes in Vegas, while committed gay couples were denied that right in every state, created a lot of deep-seated resentment and sadness for many gay people, even if we did not always consciously realize it.
So when we had to make an extra stop to get the papers notarized, all my irritation came to the forefront. “What is the point of this?” I asked Rachel. “I mean, it’s not like we’re getting married.”
Rachel turned around to look at me, her eyes blazing. “Well, just forget about it, then!” she said. She, too, had conflicted feelings but felt hurt that I was being dismissive of what was in fact an important step for our relationship. So it was no surprise that my casually glib dismissal set her off.
“No, no,” I said. “We’re already here, let’s just get it done.” This was hardly a romantic or soothing gesture on my part, and Rachel, understandably, remained hurt. We both were seething by then, but we got the paperwork notarized.
We became domestic partners that day, although we were barely speaking to each other by the end of the process. As we left the City Clerk’s Office, we saw that there was some sort of political protest taking place on the nearby steps of City Hall. Rachel, of course, knew the people who were protesting, and when we told them why we were there, they erupted in shouts of “Mazel tov!” and “Congratulations!” Our straight progressive friends were ecstatic for us. All I could think was, there was not much to celebrate. Who knew when there ever would be?
As it turned out, the answer would come the very next year, thanks to a tireless advocate named Mary Bonauto.