— by James Esseks, Director—ACLU LGBT Project
This is it — the Supreme Court marriage moment that the ACLU has been working towards for years. The Court announced today that it has granted review of the constitutionality of the Defense of Marriage Act in Edie Windsor’s case. The Court also took review of California’s Prop 8, so the full range of marriage issues will now be before the high court. These cases are poised not just to take down DOMA and Prop 8, but to be the next building blocks for LGBT equality more broadly.
Here’s why these cases are so important:
- Ending explicit federal discrimination. DOMA requires the federal government to discriminate against married same-sex couples by treating them as legal strangers for purposes of all federal statutes and programs. It’s the last explicit federal declaration that gay people are inferior, which is reason enough to get rid of it.
- Heightened scrutiny in the balance. The Windsor ruling that the Supreme Court will review included an important new protection — “heightened scrutiny” — by the courts. Under this standard, courts will presume that anti-gay discrimination by the government is unconstitutional and will require the government to have a good explanation for why it needs to discriminate against lesbians and gay men. While DOMA and Prop 8 should fail under any standard, if the Supreme Court adopts the heightened scrutiny standard, it would help eliminate anti-gay discrimination in many different contexts.
- Showing the country that discrimination in marriage is wrong. Both Windsor and Perry make profound contributions to the public’s understanding of the freedom to marry. When two people make the commitment that’s at the heart of marriage, it’s profoundly unfair for the government to treat them as though they’re not a family.
The two cases both involve marriage for gay couples, but they actually present quite distinct issues. Edie Windsor is already married — she just wants to stop the federal government from treating her marriage differently from everyone else’s marriages. The plaintiffs in the Prop 8 case, on the other hand, want to get married. The ACLU has filed supportive briefs in Perry all along, and we’ve been working for decades — in courts, in legislatures, in ballot campaigns, and with the public — to help get the country, and the court, ready for this moment.
As the Court moves forward, it is worth retelling Edie’s story.
Edie Windsor and Thea Spyer became a couple in 1965 and had the courage to get engaged in 1967, when marriage for same-sex couples was just a fantasy. In 1977, Thea was diagnosed with progressive multiple sclerosis. Edie and Thea dealt together with the challenges of M.S. for the next 30-plus years.
The couple waited for years to be able to marry, and finally did so in 2007. In 2009, after 44 years together, Thea died.
Naturally Thea left her possessions, including the apartment they had shared for decades, to Edie. But while New York considered Edie and Thea married, DOMA required the federal government to treat them as legal strangers. So Edie was socked with a $363,000 federal estate tax bill that would have been $0 if she had been a straight widow.
If you haven’t seen the video telling Edie’s story, take a look, it’s quite moving.
Heartbroken at the injustice, Edie challenged the constitutionality of DOMA. Two lower federal courts have struck down DOMA in her case, and now the Supreme Court will have the final word.
We couldn’t have gotten here without the courage of Edie Windsor, our wonderful co-counsel in Edie’s case at Paul, Weiss, Rifkind, Wharton & Garrison LLP and the Stanford Law School Supreme Court Litigation Clinic, and the support of advocates and members like you.