The Legacy of United States v. Windsor

Before Obergefell v. Hodges (2015), the US Supreme Court case that legalized gay marriage in the United States, there was United States v. Windsor (2013). Future generations may remember the name Obergefell v. Hodges, but Windsor was the real lynchpin of gay marriage. Edith (Edie) Windsor and Thea Spyer were two New York-based lesbians who married in Canada in 2007 after Spyer was given a terminal diagnosis.

In 2008, New York Governor David Paterson ordered New York state agencies to recognize same-sex marriages performed in other jurisdictions, meaning that Windsor and Spyer’s marriage should have been recognized by their home state. When Spyer died in 2009, Windsor was required to pay $363,053 in federal estate taxes on her inheritance of Thea’s estate and $275,528 to New York. Had federal law recognized their marriage, the way it would have a heterosexual marriage in New York, Windsor would have qualified for an unlimited spousal deduction and paid no federal estate taxes. Therefore, in 2010 Windsor filed a lawsuit against the federal government arguing that the 1996 Defense of Marriage Act (DOMA) singled out legally married same-sex couples for “differential treatment” compared to opposite-sex married couples. Separate and unequal, as it were.

Photo: Getty Images

Photo: Getty Images

The US Supreme Court agreed. In the majority opinion for Windsor, Justice Anthony Kennedy wrote:

“When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits. DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities…DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.

DOMA was officially dead, and the Court’s ruling that DOMA violated the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment provided legal groundwork for future gay rights cases.

There have been many articles written about the case and about Windsor herself, not to mention the documentary “Edie & Thea: A Very Long Engagement.” Unequivocally, Windsor is a hero of the gay rights movement. She is an extremely colorful, passionate, intelligent woman who wears the label of “Godmother of Gay Marriage” well.

There is no question either that she deserves praise for her decades of LGBT advocacy that predated Windsor, and that Windsor and Spyer are the acme of lesbian #relationshipgoals. That said, some aspects of the circumstances around the Windsor case merit discussion. In particular, to what extent should LGBT rights cases like this be engineered and to what end? For example, it is not Windsor’s fault, but it wasn’t a poor butch black woman in her twenties who was used to challenge DOMA even though the legal argument would have been the same for the two women. Why not and does that matter?

Windsor and Spyer may have been, both coincidentally and not, the perfect lesbian couple to be presented to the American public as the face of opposition to DOMA, but they were in no way your average lesbians. In fact, the privileged nature of Windsor and Spyer’s lifestyle was one of the reasons that some gay-rights organizations refused to take Windsor’s case.

Spyer was born to a wealthy Jewish family, and she and Windsor, both of whom held advanced degrees, began dating after a torrid weekend vacationing in the Hamptons. The next year, they rented a house on Long Island. Their first international trip together was to Surinam, a former Dutch colony on the northeastern Atlantic coast of South America (in their pictures from the trip, they pose in pith helmets and with the natives in ways reminiscent of pictures of the British in colonial India). They traveled to St. Thomas and all over Europe and were in fact returning from a vacation in Venice the day after the Stonewall Riots. They threw parties and benefits at their homes in Manhattan and the Hamptons featuring menus including pate and lobster, and Windsor even today often wears a string of pearls around the house.

Photo via CNN

Photo via CNN

The fact that Windsor is the opposite of a Kate McKinnon character on “SNL” is exactly what made her the perfect plaintiff in the eyes of the lawyer who did eventually take her case, Roberta Kaplan (and perhaps the reason why other LGBT organizations declined her case). Kaplan followed a model used by other minority groups: Michael Klarman, a professor at Harvard Law School and a former clerk for Justice Ruth Bader Ginsburg, is quoted in a The New Yorker article about Windsor as saying, “When you’ve got an appealing litigant, it makes you want to side with them. Of course, you are deciding a case for a much broader group of litigants, so it ought to be irrelevant, but it’s not. With school desegregation, the N.A.A.C.P. accepted only plaintiffs who were middle class, from the best families, well educated, well dressed. When the American Jewish Congress was thinking about school-prayer challenges, they much preferred a Jew to an atheist.”

Windsor was a woman (gay men had a stigma of being too sexual), educated, upper class, had already gone through menopause (heterosexuals would be more likely to identify with her love story and not be sidetracked by biases about gay sex) and easily passed as straight. Kaplan even told the writer of the same New Yorker article that when she “saw, frankly, how beautiful she was and how articulate she was, I was, like, This is it.” Kaplan specifically rejected the strategy of other LGBT legal organizations of creating a “rainbow coalition” of plaintiffs in cases to would include a diversity of race, age, and gender because she felt that having a single litigant was more relatable to audiences.

US President Barack Obama holds hands with Edie Windsor after she introduced him during the Democratic National Committee LGBT Gala at Gotham Hall on June 17, 2014 in New York, New York. AFP PHOTO/Mandel NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)

Photo: Getty Images

But all the things that made Windsor an excellent litigant for gay marriage (per Kaplan’s strategy) were also largely coincidental. Unlike in other federal LGBT cases, Windsor wasn’t sought out by the LGBT legal community to challenge DOMA. For comparison, in Lawrence v. Texas (2003), the Supreme Court case that decriminalized homosexuality nationally, Lambda Legal specifically selected John Lawrence and Tyrone Garner as plaintiffs. In 2009, much of the LGBT legal community—including the ACLU and the Human Rights Campaign—was afraid of pressing legal challenges to DOMA in case there was a ruling against LGBT rights, so most gay rights organizations preached a policy of wait and see. Kaplan and Windsor took a gamble, albeit a good one, and pressed on anyway.

It is important to note that Mary Bonauto of the Gay and Lesbian Advocates and Defenders, already famous as a gay marriage lawyer and to be one of the three lawyers two years later in Obergefell, also filed a case against DOMA in Massachusetts the same year as Windsor was filed on behalf of eight couples and three widowers (Gill et al. v. Office of Personnel Management), but the Windsor case made it to the Supreme Court first. So why did Windsor become the face behind the repeal of DOMA? A healthy dose of coincidence.

Photo:LOGOTV

Photo:LOGOTV

The case was successful, so does it matter that Windsor isn’t your typical lesbian or that there wasn’t a rainbow coalition of litigants? No, but perhaps there is a lesson to be learned from the case. Windsor is a fantastic figurehead. Her love story with Spyer is epic (and occasionally exuberantly raunchy), and she is an excellent speaker. But Kaplan was entirely correct that a single litigant is easier to lionize than a bevy of litigants. The litigants in Obergefell not named Obergefell (April DeBoer and Jayne Rowse, Greg Bourke and Michael DeLeon, and Valeria Tanco and Sophy Jesty), for example, will not have the same notoriety as Windsor, a sole litigant. Even now, most people probably don’t know that there was more than one litigant in Obergefell (it was actually the consolidation of six lower-court cases, originally representing sixteen same-sex couples, seven of their children, and a widower).

What LGBT legal groups have historically done well is to be inclusive of diversity in their cases (for example, Garner was black, and DeBoer and Rowse and Bourke and DeLeon adopted children of color). Had the DOMA challenge in Gill et al. v. Office of Personnel Management reached the Supreme Court before Windsor, the litigants would have included a biracial lesbian couple and couples of various ages. The case almost certainly would have also resulted in the end of DOMA based on the same legal grounds, but probably the litigants would not have achieved Windsor’s fame. A lesson from Windsor then is perhaps that the most memorable legal cases only involve a single litigant/couple that can act as lightning rods for the community. A larger litigant pool may or may not improve the case’s chances, but it reduces the odds that the litigants will be able to achieve and maintain a high profile in the community. To create heroes, we must select heroes. But we must be selective.

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