This month, I’ve had the opportunity to share some of the challenges that came with writing Family Matters. Some of them were methodological. Telling a story of national change through state and local law required piecing together disparate events and narratives. Others were practical, like collecting oral histories and getting through the pre-publication gauntlet. In this last post, I want to address a challenge that all authors face: leaving stories on the cutting room floor.
When I began the process of turning my dissertation into a book, my editor, Reuel Schiller, told me to foreground people and stories. Doing so would make the book more interesting for readers, which would get them invested in the argument. (Reuel is a series editor for the ASLH’s Studies in Legal History. He is incredibly kind, patient, and talented. If you have the chance to work with him, take it!)
The problem wasn’t finding compelling stories—it was deciding which ones would make the cut. Some were easy decisions. The self-proclaimed “Groucho Marxist” who literally shut the mouth of anti-gay crusader Anita Bryant by shoving a pie into her face? No question that one would go in the introduction. Others were harder calls. I read accounts of hundreds of lesbian mothers who lost custody of their children because of their sexual orientation. Each one illustrated the pain, heartache, and injustice of anti-queer family court doctrines in the 1970s. I had to limit myself to a handful, trusting that they would adequately represent the stories of many parents and children who suffered at the hands of a biased legal system.
I agonized most over the stories from my chapters on anti-queer violence in the 1980s. Researching those chapters was emotionally devastating. I had to spend hours in the archives, going through thousands of pages detailing vicious hate crimes. I found the research process so painful that I could not bring myself to work on the chapters for more than three years. When I finally drafted them, I wanted to bring the events to life. At the same time, I did not want to veer into the voyeuristic, unnecessarily using the tragedies that people suffered to grab readers’ attention. It took many rounds of edits to find that balance.
The chapter that required me to leave the most material on the cutting room floor was the final one, on marriage equality. Numerous scholars and journalists have written entire books on the movement for same-sex marriage rights. I had to give a comprehensive account in just one chapter! I focused on the arguments and strategies that advocates had honed through previous campaigns for queer family rights. That meant I had reams of material that did not make it into the manuscript. Within that pile, there were two stories that have stayed with me, and that I fervently wish I could have included.
Robbie Kaplan Comes Full Circle
.jpg)
Photograph of Roberta (Robbie) Kaplan by Sylvia Rosokoff, courtesy of Wikimedia Commons.
The first involved famed litigator Roberta (Robbie) Kaplan. She represented Edie Windsor in the case challenging the federal Defense of Marriage Act (DOMA). DOMA defined marriage under federal law as a union of different-sex couples and released states from their obligation to recognize same-sex marriages from other jurisdictions. In 2009, after her wife died, Windsor had to pay more than $350,000 in estate taxes because the federal government did not recognize her marriage. Windsor decided to sue. She invited Kaplan to her home to discuss the case she wanted to bring.
When Kaplan walked in, she was stunned. She recognized the living room—she had been there in the early 1990s. It looked exactly the same as it had eighteen years earlier.
That apartment was where Kaplan had met with psychologist Thea Spyer for counseling sessions after coming out as a lesbian. Kaplan had stayed in the closet throughout her undergraduate years, fearing that her family and friends would abandon her if she disclosed her sexual orientation. Indeed, when she finally told her parents she was gay, that fear seemed to materialize. Her mother walked to the side of the room and literally began banging her head against the wall! Kaplan’s friends recommended she seek out a therapist for support, which led her to Spyer.
During their sessions together, Spyer assured the litigator that lesbians could have fulfilling lives. To prove the point, Spyer even revealed an important aspect of her personal life: since the 1960s, she had lived with another woman, who she described as a brilliant mathematician. Kaplan did not learn the name of Spyer’s partner until almost two decades later, when Windsor invited her over to discuss mounting a legal challenge to DOMA.
Kaplan agreed to represent Winsor, even though she had little expectation that the lawsuit would succeed. Several years earlier, Kaplan had taken on New York’s discriminatory marriage laws, only to lose the case before the state’s highest court. But the litigator nevertheless agreed to move forward, in part to repay Spyer for helping her through some of her darkest days.
The serendipity of this story was striking. So too was its poignancy. Kaplan first met Spyer at an extremely low point in her life, when she feared rejection from those closest to her simply because of who she was. By the time she represented Spyer’s widow, she had married her wife and they had had a son together. Kaplan’s work reflected just how much her life—and American society—had changed dramatically.
Evan Wolfson’s Low Grade
When Kaplan walked in, she was stunned. She recognized the living room—she had been there in the early 1990s. It looked exactly the same as it had eighteen years earlier.
That apartment was where Kaplan had met with psychologist Thea Spyer for counseling sessions after coming out as a lesbian. Kaplan had stayed in the closet throughout her undergraduate years, fearing that her family and friends would abandon her if she disclosed her sexual orientation. Indeed, when she finally told her parents she was gay, that fear seemed to materialize. Her mother walked to the side of the room and literally began banging her head against the wall! Kaplan’s friends recommended she seek out a therapist for support, which led her to Spyer.
During their sessions together, Spyer assured the litigator that lesbians could have fulfilling lives. To prove the point, Spyer even revealed an important aspect of her personal life: since the 1960s, she had lived with another woman, who she described as a brilliant mathematician. Kaplan did not learn the name of Spyer’s partner until almost two decades later, when Windsor invited her over to discuss mounting a legal challenge to DOMA.
Kaplan agreed to represent Winsor, even though she had little expectation that the lawsuit would succeed. Several years earlier, Kaplan had taken on New York’s discriminatory marriage laws, only to lose the case before the state’s highest court. But the litigator nevertheless agreed to move forward, in part to repay Spyer for helping her through some of her darkest days.
The serendipity of this story was striking. So too was its poignancy. Kaplan first met Spyer at an extremely low point in her life, when she feared rejection from those closest to her simply because of who she was. By the time she represented Spyer’s widow, she had married her wife and they had had a son together. Kaplan’s work reflected just how much her life—and American society—had changed dramatically.
Evan Wolfson’s Low Grade
Photograph of Evan Wolfson by David Shakbone, courtesy of Wikimedia Commons.
There was a second story I had to cut that also illustrated how much American law had transformed over the course of a single generation. That one involved another attorney, named Evan Wolfson. Wolfson had been an advocate for same-sex marriage rights since before the marriage equality movement’s inception. In 1983, as a third-year law student at Harvard University, he had written his graduation thesis arguing that the Constitution protected same-sex couples’ right to marry.
At the time, same-sex marriage was such a radical notion that Wolfson struggled to find anyone who would supervise his project. After approaching the obvious candidates—faculty members who worked in family law, constitutional law, or gay and lesbian rights—he finally convinced a property law scholar to oversee the graduation requirement. The paper that Wolfson produced set out the arguments the movement would later rely upon to change American law, but the professor was unimpressed. Wolfson got a B.
Wolfson was undeterred. As an attorney for Lambda Legal, he pressed the organization to lead the movement for marriage rights. Later, he founded Freedom to Marry, a national advocacy organization devoted to pursing marriage equality. In 2015, when he heard the Supreme Court had ruled in favor of the plaintiffs in Obergefell v. Hodges, he cried tears of joy. By that point, he had spent thirty-two years working to secure marriage rights for gays and lesbians. Wolfson was thrilled to finally be out of a job.
I love the story about Wolfson’s low grade for so many reasons. The first is how clearly it illustrates the change American law has experienced over time. In the early 1980s, Harvard Law professors could easily dismiss Wolfson’s arguments as absurd. Thirty-two years later, these same points helped the Supreme Court to rule in favor of marriage equality. The second is more personal. As a law professor, I regularly supervise student papers. When I read arguments that seem far-fetched, I think of Wolfson and hope that my students remain as dedicated to their vision of justice as he was to his.
* * *
I wish I could have included the stories of Wolfson, Kaplan, and so many others in the book. I’m so very glad to have the chance to share them with you now! Dozens of stories ended up on the cutting room floor, but I hope readers enjoy the ones that did make it into the pages of Family Matters.
Wolfson was undeterred. As an attorney for Lambda Legal, he pressed the organization to lead the movement for marriage rights. Later, he founded Freedom to Marry, a national advocacy organization devoted to pursing marriage equality. In 2015, when he heard the Supreme Court had ruled in favor of the plaintiffs in Obergefell v. Hodges, he cried tears of joy. By that point, he had spent thirty-two years working to secure marriage rights for gays and lesbians. Wolfson was thrilled to finally be out of a job.
I love the story about Wolfson’s low grade for so many reasons. The first is how clearly it illustrates the change American law has experienced over time. In the early 1980s, Harvard Law professors could easily dismiss Wolfson’s arguments as absurd. Thirty-two years later, these same points helped the Supreme Court to rule in favor of marriage equality. The second is more personal. As a law professor, I regularly supervise student papers. When I read arguments that seem far-fetched, I think of Wolfson and hope that my students remain as dedicated to their vision of justice as he was to his.
* * *
I wish I could have included the stories of Wolfson, Kaplan, and so many others in the book. I’m so very glad to have the chance to share them with you now! Dozens of stories ended up on the cutting room floor, but I hope readers enjoy the ones that did make it into the pages of Family Matters.
