Nel's New Day

September 29, 2012

Edie Windsor Fights for LGBT Rights

Last week I had the opportunity to see Edie and Thea: A Very Long Engagement and meet one of the subjects of the film, Edith Windsor. Now 83, Edie met her beloved Thea Spyer in 1965. They got engaged in 1967 and lived together in Greenwich Village until Thea’s death in 2009. The film shows them through the best of times and the most difficult. Thea was diagnosed with multiple sclerosis in 1977, and Edie spent much of the next 30 years caring for her as her health deteriorated.

When Thea was told in 2007 that she might have only a year to live, the couple decided to stop waiting for legalized marriage in New York and settling on a Canadian civil ceremony. Filmmakers Susan Muska and Greta Olafsdottir directed this intimate documentary about two women who stayed in love and maintained their relationship despite legal, societal, and health barriers.

The film touched me even more, perhaps, because my partner and I have been together over 43 years, meeting and beginning our relationship just two years after Edie and Thea did. We experienced discrimination and struggles throughout the same four decades until the more liberal times of the 21st century that still refuses us legalized federal marriage benefits.

Receiving little attention from the world outside the LGBT community, the film might not have gained greater visibility if the U.S. government had not taxed Edie a whopping $363,000 in estate taxes after Thea’s death. The amount of taxes makes the couple sound wealthy; they weren’t. In the 1960s they bought a home in Manhattan and a cottage in the Hamptons, the latter for only $35,000. Inflation increased the value of Edie’s home, drastically increasing the “death tax.” The only reason that she had to pay this federal estate tax is that she and Thea weren’t married in the United States; they couldn’t get married because federal law didn’t allow them to marry. Legally married husbands and wives would not have to pay any of this money.

So Edie sued. In June, a federal district judge in New York decided in Edie’s favor, ruling that section three of DOMA unconstitutionally discriminates against married same-sex couples. Over 18 months ago, President Obama and Attorney General Eric Holder had determined that DOMA was unconstitutional and that they would no longer defend this misguided Congressional act in court. Yet Speaker of the House John Boehner (R-OH) begs to differ; under his guidance, a House committee with a Republican majority has used tax-payer money to employed Paul Clement for a minimum of $1.5 million to defend DOMA and prevent marriage equality.

Two days ago the 2nd Circuit Court of Appeals heard arguments in the case. In his opening statements, Clement admitted that he didn’t have a good argument: “There’s no way to preserve the definition of marriage [as one man and one woman] other than by preserving the definition. It becomes somewhat circular.”

Clement tried to support DOMA with 1972’s Baker v. Nelson, in which two men tried to strike down Minnesota’s ban on same-sex marriage. In this case, the Supreme Court let stand a state law that limited marriage to different sexes, and Clement argued that the appeals court should abide by that precedent in upholding DOMA. Baker was a summary decision without written briefs and oral argument and contained no explanation other than that the constitutional claim of Baker and McConnell did not raise a “substantial federal question.”

Clement acknowledged that times may have changed during the past 40 years but added, “The only thing that hasn’t changed is this court’s obligation to follow Supreme Court precedent.” There is precedent for overturning past Supreme Court decisions during that time. For example, during the 40 years since Baker, 1986’s Bowers v. Hardwick ruling that upheld laws against sodomy was overturned in 2003 by Lawrence v. Texas. Also the Roberts court does not have a reputation “to follow Supreme Court precedent.”

In his rebuttal at the end of the oral arguments, Clements said that saving money is a good reason to preserve DOMA and Congress was “preserving the scope of the benefits programs the way they’ve always been.” He also went back to 1885’s Murphy v. Ramsay that required Utah to declare marriage between a man and a woman as a provision of statehood.

In its 1885 ruling, the Supreme Court wrote that “no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth … than that which seeks to establish it on the basis of the idea of the family [is] consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.” That definition of marriage is “the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”

Murphy relied on the Dred Scott case, that decided in 1857 that slaves are not citizens of the United States, to reference the “traditional understanding” of marriage.

To summarize Clement’s arguments to preserve DOMA:

  • Supreme Court rulings should not be overturned, no matter how times change;
  • The definition of marriage comes from rulings that prevented polygamy and ensured slavery;
  • All matrimony is “holy” and not civil;
  • Saving money is a good reason to deny rights to LGBT people.

Louisiana’s governor Bobby Jindal has an even stronger reason for opposing marriage equality. He thinks that legalizing same-sex marriage will overturn the Second Amendment: “The reality is today we’re talking about redefining marriage. If the court is allowed to impose and write their own laws and their own views, and overturn those that are done by our duly-elected representatives, what’s to stop today’s [indistinguishable]. Tomorrow it may be property rights, maybe it’s Second Amendment rights. We have got to take a stand against judicial activism.”

While the government can’t prove that it will lose money if marriage equality is legalized, LGBT people can prove that they lose money without it. After a gay, lesbian or bisexual senior dies, the surviving partner is denied Social Security survivor benefits, taxed heavily on any retirement plans inherited from their partners that legal husbands or wives don’t pay, and charged estate tax on inheriting a home even if it is jointly owned.

Surviving partners will probably be forced out of their homes if their names are not on the title, a situation that would not occur if they were legally married. The same thing happens if partners enter nursing homes: federal Medicaid law permits a married spouse to remain in the couple’s home when a husband or wife enters a nursing home but does not grant unmarried couples the same right. These are only a few of the 1000+ federal laws that discriminate against the LGBT community.

Despite a serious heart condition and her grief after the loss of Thea, Edie exudes a positive attitude, displaying an amazing joy for life and enthusiasm for people. Meeting her will continue to be one of the highlights of my life. Thank you for fighting for our rights, Edie!

5 Comments »

  1. Supreme Court rulings should not be overturned, no matter how times change;

    They must not be overturned by lower courts.

    Like

    Comment by Michael Ejercito — October 21, 2012 @ 10:33 AM | Reply

    • In this case, I agree with you that it’s important not to overturn lower court rulings. But in the past, the Supreme Court has demonstrated racism and other discrimination in their rulings that should be overturn. I also think that Citizens United, the Supreme Court ruling that allowed unlimited secret donations for candidates and permitted employers to coerce their employees in election matters, should be overturned.

      Like

      Comment by trp2011 — October 21, 2012 @ 1:46 PM | Reply

      • But in the past, the Supreme Court has demonstrated racism and other discrimination in their rulings that should be overturn.

        And only the Supreme Court should overturn those decision.

        Like

        Comment by Michael Ejercito — October 21, 2012 @ 7:38 PM

  2. We showed Edie & Thea at a PFLAG meeting last year–very powerful and sweet film. I was glad to see that Edie was continuing to make history with this lawsuit–may we all live long enough to see “liberty & justice for all.”

    Like

    Comment by Jeanne St.John — October 1, 2012 @ 9:19 AM | Reply

  3. and thank you Nel for getting the heart of the matter, it’s bigotry plain and simple and very very unAmerican.

    Like

    Comment by Lainie — September 30, 2012 @ 12:01 AM | Reply


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