Monday, September 18, 2017

The Windsor Legacy

by Prof. Jeremiah Ho

Image1Last week, Edith Windsor passed away at 88.  As many will know, she was the plaintiff in U.S. v. Windsor, in which the U.S. Supreme Court overturned section 3 of the Defense of Marriage Act and consequently turned the recognition of same-sex marriages entirely back to the states.  It was a significant gay rights decision in 2013, both substantively and incrementally for the recognition of marriage equality that would come ultimately in 2015 with Obergefell v. Hodges.  Upon finding that DOMA offended constitutional federalism principles, Justice Kennedy’s decision in Windsor focused on the discriminatory objectives behind DOMA—how it was legislated from a place of animus toward same-sex couples and how that animus demeaned the dignity of those couples and their families.  These observations go to the substantive importance of Windsor.  In an incrementalist role, Windsor was a remarkable decision on the federal level because it was a rare moment in which same-sex relationships received a leverageable amount of respect.  That leverageable amount was expanded two years later when the Court extended the fundamental right to marry to same-sex couples.  Today, as the national LGBTQ rights consciousness moves toward sexual orientation antidiscrimination, Windsor remains as an important decision, providing insight as to how the law ought to regard sexual minorities.         

Before marrying in 2007 in Canada, Edith Windsor and Thea Spyer, had been a couple since 1963 and were formally domestic partners in New York City in 1993.  After their 2007 marriage, they lived in New York City, where New York state legally recognized their Canadian marriage.  When Spyer passed away in 2009, she left her entire estate to Windsor.  However, because DOMA had not recognize same-sex marriages on the federal level, Windsor was not qualified for the marital exemption under federal estate taxes.  After paying $363,053 in estate taxes from the IRS, she subsequently sought a refund and was denied the request.  Windsor then brought the suit that would eventually invalidate section 3 of DOMA.   

Like many of the canonical Supreme Court cases that have effectuated significant social changes, such as Loving v. Virginia, Brown v. Board of Education, Lawrence v. Texas, Roe v. Wade, specific human dilemmas and situations first prompted individual legal action.  But once such legal action solidified into actual changes in the law, the human drama at the core of these cases often fade into the background as the legal significance of precedence take on a bigger life—shaping and re-shaping doctrine, and gaining general applicability to American life.  That is both the benefit and the curse of constitutional legacy.

I didn’t know Edith Windsor personally.  What I know of her and her marriage to Thea Spyer are wrangled from what is now considered constitutional lore.  I once observed her from afar at a New York City Pride Parade:  she was waving her arms, smiling, and greeting onlookers like me on a very sunny summer day.  Her importance to the modern American gay rights movement is immortal.  While she herself was mortal.  Beyond the Windsor decision, what I have learned from her is something she had been often heard saying: “Don’t postpone joy.”

Within the long journey to the marriage equality decision in Obergefell, timing has been important.  As Bowers v. Hardwick had shown in 1986, the judicial and cultural mainstream had not yet accepted the idea of positive treatment of sexual minorities.  It wasn’t until after the visibility of sexual minorities had changed for the betterdid we start to see pro-gay decisions, such as Romer v. Evans and Lawrence v. Texas at the Supreme Court.  And yet, Edith Windsor’s mantra of not delaying joy did not stop her and Thea Spyer from experiencing what being human meant rather than delaying the joy of existence by waiting for injustice to be overturned.  In this way, Windsor demonstrated the balance between personal activism and progressive incrementalism, and the complicated ways in which sexual minorities have had to negotiate their personal experiences with the forces under the law that have act against them.  What she showed me was that while the law might still be processing what is the right thing to do, it is imperative not to give up on a moral and meaningful existence.

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