Everybody Must Sue DOMA: Lesbian Activist Widow & Gay Couples File Suits

In 2007, Edith Windsor married her partner of 41 years, Thea Spyer, in a ceremony in Canada. Spyer has since passed away, and Windsor has since done the math, and Windsor has thus figured out that she was forced to pay over $350,000 in estate taxes that she wouldn’t have if her marriage was recognized by our government. Now, she’s suing on the grounds that DOMA is discriminatory, and that by not recognizing her marriage the federal government has essentially created a tax on being gay. (@democracynow)

From the NY Daily News story:

“In the midst of my grief over the loss of the love of my life, I had to spend countless hours defending our relationship to the federal government,” Windsor said.

“While New York State considered us married, the federal government did not, so the government taxed Thea’s estate as though we were strangers rather than spouses,” she said.

(@nydailynews)

Windsor and Spyer were the subject of the documentary Edie & Thea: A Very Long Engagement, which was released the year of Spyer’s death.

Her lawsuit isn’t the only one on the books right now: Boston-based Gay & Lesbian Advocates & Defenders GLAD filed its second lawsuit against DOMA this week. We told you about GLAD’s Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services (HHS), which both challenge Section 3 of the Defense of Marriage Act, in DOMA ShMOMA: How Massachusetts is Changing the Gay Marriage Game, One Case at a Time.

In GLAD’s second suit, Pedersen et al v. Office of Personnel Management, GLAD is representing five married same-sex couples and a widower who have been denied federal rights & protections due to their sexual orientation. From The Rainbow Times:

In both Gill et al. v. Office of Personnel Management, GLAD’s earlier DOMA case, and now in Pedersen, GLAD argues that DOMA Section 3 violates the federal constitutional guarantee of equal protection. GLAD also contends that DOMA Section 3 is an unprecedented intrusion by the federal government into the law of marriage, always considered the province of the states.

Maggie Gallagher, as you can imagine, is not into this:

Maggie Gallagher, the chairwoman of the National Organization for Marriage, a group that opposes same-sex marriage, said court challenges to the Defense of Marriage Act showed that gay rights advocates “continue to push a primarily court-based strategy of, in our view, inventing rights that neither the founders nor the majority of Americans can recognize in our Constitution.”

While it seems unlikely that one woman’s lawsuit will bring down a federal law, and in fact it is pretty unlikely, lawsuits seem increasingly likely to be the way that we’re actually achieving change – from the case that brought down Prop 8 (at least in a technical and possibly temporary sense) to the Log Cabin Republicans’ suit against DADT which, while it hasn’t effected a full repeal yet, has gone farther towards achieving it than anything else. With Sonia Sotomayor and Elena Kagan on the Supreme Court, this may be an auspicious time to start pushing these cases as far as they can go. It’s possible that Windsor’s case will go nowhere; it’s also possible it will go as high as it can go.

We’ll be following it either way.

Rachel is Autostraddle's Managing Editor and the editor who presides over news & politics coverage. Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

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9 Comments

  1. omg these women! i want to add them to my grandparents! what an adorable-turned-heartbreaking story

    the defense of (only straight) marriage = the offense of human dignity

    ps is there anyone trying to sue maggie gallagher personally? cuz if not i want to be the first, i’m sure we can find something

  2. Lawsuits are in fact the way gay rights have been going for a long time for several reasons. Pretty much if you want a law changed you got two options: legislature or judiciary (sometimes public referendum– as we all know this is not a friendly venue for our cause). The gays are a sexual minority that wield little electoral pressure over most politicians outside of maybe San Francisco. Politicians have little incentive to stick their necks out. The judiciary is meant to level the playing field a little and is designed to look out for minorities rights (like in an ideal world, obvs they fail at this all the time). It’s the most receptive venue. Every same sex marriage victory was via court except for Vermont, New Hampshire and Maine (who reneged with a referendum). California’s legislature passed it twice, but Schwarzenegger vetoed it twice. Punk.

    Fun fact: the big push for marriage we’re seeing in the US was pretty much started by some regular joe schmo gays in Hawaii filing a law suit in 1996. The national gay rights movement at the time thought marriage was a nonstarter and was focused on civil unions and domestic partnership benefits. Once they saw that there was traction in the Hawaii case they jumped on board. This lead to a OMFG reaction by the religious wackos and all the federal and state DOMAs. This state by state, highly contentious battle in turn galvanized and energized the gays on this issue. Cultural awareness increases. Public opinion shifts.

    What is kind of amazing is the religious right’s freak out and intense mobilization spurred the gay rights movement into action and solidarity. Pretty much the louder they screech about this the more people become aware of and familiar with the idea of being teh gay. Visibility matters and I guess my point is that even negative attention can lead to gains down the road.

    There is some worry about moving court cases along too quickly and alienating/freaking out the not culturally ready general populace. It assumes those opinions are stable and that rights/laws/legal statuses won’t affect and change people’s cultural understandings.

    I think that’s a bunch of horseshit and justice delayed is justice denied.

  3. The DOMA is in fact unconstitutional, and can be brought down by lawsuit. The only reason it passed was to get someone re-elected, so sue it’s ass off, because the next step is for a supreme court judge like Justice Brennan to kill it.

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