Perhaps Edith Windsor didn’t intend to upset a cultural and religious tradition that had stood largely unquestioned for hundreds of years. Maybe she only wanted her $363,035 back.
Instead she gave her name, “United States v. Windsor,” to a case that, while it won’t make same-sex marriage legal everywhere, will go a long way toward making such marriages common.
Edith Windsor and Thea Spyer, who married in 2007 in Toronto, where gay marriage was legal, lived in New York. When Speyer died shortly thereafter, she left her estate to her partner, who applied for the spousal exemption from estate taxes. The federal government, which did not recognize same-sex unions, denied Windsor her refund.
In 1996, a conservative Congress passed — and Bill Clinton signed —the Defense of Marriage Act (authored by Cobb County’s Rep. Bob Barr), better known by its acronym DOMA, which defined marriage as between one man and one woman. The act denied to homosexual couples who had been married in states where such unions were legal something like 1,000 federal benefits available to traditionally married couples: joint tax returns, Social Security, health insurance, pension rights, benefits for military couples and immigration protections among them.
The five justices who voted to overturn the law last week spanned the court’s ideological divide. They were stinging in their opinion, writing, “DOMA writes inequality into the entire U.S. Code.”
Swing-vote Justice Anthony Kennedy, writing for the majority, said, “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”
In essence, it violated the Equal Protection Clause, but what the court did not do was legalize same-sex marriage nationally. Same-sex marriage is legal in 12 states (soon to be 13 with the addition of California) and the District of Columbia. And while most other states may legalize it over time, some states (possibly including Georgia) likely never will. But the law is now such that they cannot legally hinder such couples. And as many critics have noted (including Charles Krauthammer on this page on Friday), last week’s ruling puts nationalized gay marriage just one step away.