Melissa Zarda fought for her gay brother at the Supreme Court—and won a landmark LGBTQ rights victory
The Daily Beast
June 16, 2020
“To have Don’s memory and legacy on the right side of history is incredible,” Melissa Zarda tells Tim Teeman, after fighting for her late brother in the landmark SCOTUS LGBTQ case.
On Tuesday, Melissa Zarda was dealing with two things at home in Kansas City, Missouri: the loud barking and mischief of her new foster puppy Winnie, a cattle dog/pitbull mix, while—above the din—relishing the hard-fought, historic victory she had just won in the Supreme Court in the memory of her beloved, deceased brother Donald.
His was one of three cases featuring LGBTQ people fired for their sexual orientation or gender identity that SCOTUS yesterday ruled, 6-3, were illegal under the sex discrimination provisions of Title VII of the 1964 Civil Rights Act.
The ruling—embracing the cases of gay men Zarda and Gerald Bostock and trans woman Aimee Stephens—has been hailed as one of the most significant in recent years, setting the protection of LGBTQ people from workplace discrimination in legal precedent.
Melissa took on the case after Donald died in a base jumping accident in Switzerland in October 2014.
“Don would be extremely happy and overjoyed by the decision,” Melissa told The Daily Beast. “I can see his face right now, I can see it so well, it’s like he is almost here. His face is absolutely beaming, and he had a smile bigger than any room anyway. He could light up a room. It’s been an amazing journey. I’m so glad he stood up. I’m so glad that Gerald stood up. I’m so glad that Aimee stood up. I’m just so pleased we’re here, talking about this right now.”
“On a grander scale this case wasn’t just about Don,” Melissa said. “Don knew that too. I know this will impact millions of people for the good. To have Don’s memory and legacy on the right side of history like that is incredible.”
Leading up to the publication of Monday’s decision, “I was nervous and scared,” Melissa said. “When you get used to all this bad news, you think, ‘OK, another one is coming,’ Maybe, when the decision was announced, it made me that much happier because I couldn’t quite believe it.”
Her husband, Matt Cathlina, had been more optimistic, reminding Melissa of how positive she had left the Supreme Court the day the case was heard last October. “Our team did so good, they were so skilled,” Melissa said. “I knew we definitely had a chance.”
“I woke up knowing it could be that Monday, but didn’t have any idea. I was refreshing the Supreme Court website over and over and not seeing anything. I was getting nervous.” Melissa went for a walk, came back, refreshed it more, and the site crashed, “meaning something big had probably happened.”
Melissa wrote to the ACLU legal team, who wrote back that she, Don, the LGBTQ campaigners, had won.
“I was overjoyed, my heart was racing, pounding,” Melissa said. “I think I was smiling and crying at the same time. I was doing 10 things at once: texting, crying, smiling, and laughing—it was like a shot of adrenalin. What’s happening with the country is so tragic and awful, we needed this shot of good news desperately right now.”
She shared the news with Bill Moore, Don’s surviving partner, who teamed up with Melissa in leading the case, with legal backing from the ACLU alongside lawyer Greg Antollino and Pam Karlan of the Stanford Law School Supreme Court Litigation Clinic.
Melissa also messaged her and Don’s mother Shirley, sister Kim, Matt, and their extended group of family and supporters. “It’s amazing, there are no words for how happy we are with this decision,” Melissa, a graphic designer, said. “So many LGBTQ friends and family members are so relieved that they will be safe from discrimination in the workplace, especially now when the economy isn’t well and unemployment is so high.”
Shirley, Melissa and Don’s mom, didn’t understand “what a huge scale this was” until she saw the many articles about the case and TV news segments. “She is beyond excited,” said Melissa. “She is telling everyone she can. She is a proud mom. She was always an advocate for Don. This was so important to her. It has also brought up a lot of memories and emotion for her. She still struggles with Don’s death and his not being here.”
“We have this euphoric happiness, but also a bittersweet sadness that he is not here to enjoy it with us. It’s hard, but also good news at a time when we need good news.”
When it came to the ruling, Melissa was “pleased it was 6-3 and not closer. I was pleased that Gorsuch wrote the decision, and that he understood. I disagreed with Alito, saying this was legislating. For me, it couldn’t be clearer that this was the right interpretation of Title VII. It seemed as plain as day.”
As The Daily Beast previously reported, Donald Zarda was fired in 2010 from his job as a skydiver with Long Island company Altitude Express after coming out to a customer.
The trial court found that Title VII did not cover sexual orientation. The U.S. Court of Appeals for the 2nd Circuit reversed that holding, claiming that sexual orientation discrimination was a subset of sex discrimination. Like the funeral firm that employed Aimee Stephens, Altitude Express took the case to the Supreme Court—and lost.
An “incredibly smart” young boy, Donald was always intrigued by airplanes and air travel, Melissa told The Daily Beast last year. Both his mother and father had pilot licenses. As an adult he spent a lot of time skydiving with friends and others who shared his passion. Melissa is scared of heights, and “a huge regret” was that she never jumped with her brother. He was warm, generous, and loving as a brother, and loved sharing his professional passion with others.
Donald’s family was immediately supportive after he came out. “It was almost not an event,” said Melissa. He did so in his mid-20s. “I don’t think he was delaying telling us for any other reason than he was busy traveling the world and skydiving. He was not around that much.”
He went back to school to get a degree in aviation-related management and administration. “Anything that involved being in the air was all he cared about.”
His death had been devastating. “Even years later the emotion tied up with it is still that intense,” Melissa said last year. “He kept our family together. We’re still tight, but he was such a force. It has been a devastating loss, unbelievably hard.”
Donald felt strongly that he was a victim of homophobia. “He absolutely was a fighter,” Melissa said. “He could not stand anything unfair. He felt he had been discriminated against, and was immediately prepared to fight. He knew it was wrong, and he was going after it. He wanted to stand up, in case it happened to anyone else.”
“Don was devastated when he was fired,” Melissa told The Daily Beast after the SCOTUS decision. “His job and career and skydiving meant the world to him. He was afraid of what would happen after has fired. It was hard to get work elsewhere, and he worried he would be looked at as a troublemaker.”
“He was confused and upset. He would call us, and we would console him and do our best to be there for him and support him. I would say this weighed very heavily on him in the last years of his life. Skydiving had been everything to him, and then this case became everything to him.”
In the wake of their Supreme Court victory, Melissa does not know yet if the family will pursue the case directly with Altitude Express.
“We’ve barely had a chance to get any sleep. It’s good to bask in this victory and how wonderful it is, but if we wanted to focus our energy on what comes next there is so much work that needs to be done in getting the Equality Act passed. It’s sitting in Congress, when people are still being discriminated against in housing, education, health care, and credit. There is still a lot of work to do.”
Donald would not have expected the case to go this far, Melissa said. “He would have been very surprised, but happy everything turned out the way it did.”
Melissa said she was “ashamed” that before her brother’s experience she was “totally ignorant of the scale of discrimination out there. I couldn’t relate. When Don first called about what had had happened, I said, ‘Well, that’s illegal, duh.’ I had no idea. I said, ‘We know that’s illegal. You need to do something about that.’”
Like many people, Melissa thought that surely anti-LGBTQ discrimination was already outlawed. The Supreme Court case highlighted how far the law has fallen behind social and cultural evolution.
The stories sent to her by LGBTQ people who had been fired for their sexual orientation and gender identity “opened” Melissa’s eyes further, she said. “I am so grateful for that,” Melissa said. “I can’t pretend to know what they have been through. But I want to listen and be there for them and do what I can to help them. The case has definitely made me see outside of my bubble a little bit. It’s been a good perspective shift, and really heartwarming to get support from so many strangers.”
Melissa noted that the vast majority of Americans believe that LGBTQ people should be protected from discrimination, as revealed in a CBS News poll, “so the Supreme Court decision was a long time coming and overdue.”
Melissa plans to work on helping make the Equality Act law, as well as volunteering for other causes such as Black Lives Matter and animal rescue.
“Too many people out there suffer discrimination,” Melissa said. “This is America, 2020. Nobody should be discriminated against.”