Edith Windsor, Octogenarian Lesbian Widow: Take My DOMA Case to the Supreme Court!

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Steven Thrasher
Edith Windsor, the day after a federal court first ruled in her favor
Edith Windsor, the octogenarian lesbian widow who successfully sued the federal government for over chariging her $363,000 in estate taxes, wants to take her case to the Supreme Court.

According to a press release from the New York Civil Liberties Union, which is representing Windsor along with the ACLU and Paul, Weiss, Rifkind, Wharton & Garrison: "Edith 'Edie' Windsor, who sued the government for failing to recognize her marriage to her late spouse, Thea Spyer, asked the U.S. Supreme Court today to hear her challenge to the so-called "'Defense of Marriage Act' (DOMA)...In the meantime, Windsor will continue to defend her victory before the U.S. Court of Appeals for the Second Circuit, which has agreed to hear her case on an expedited basis."

Last month, the Voice reported about Windsor's victory in a federal district court here in New York. Although the Obama Administration has stopped defending DOMA, believing parts are unconstitutional, House Speaker John Boehner has directed the Bipartian Legal Advisory Group (BLAG) to keep defending it in federal court.

Asked by the Voice what she'd say to Speaker Boehner for seemingly wanting her to be the only person in America he wants to pay more taxes, she replied, " I think I'd rather not talk to him."

Some case regarding the constitutionality of same-sex marriage should be on the docket of the Supreme Court next year, although any such ruling could be limited enough in nature that the issue will go on for years. But both advocates of same-sex marriage, as well as opponents in BLAG, seem to want the Supremes to weigh in, come what may.

The stakes are getting higher, and the effects are getting felt on a broader basis, almost daily with the schizophrenic gap between same-sex marriages being legally performed at the state level which are not recognized by the federal government. Today, Windsor's estate taxes and her relationship would be treated the same in New York State as if she were heterosexual; but the United States government wouldn't recognize them at all.

This crisis is growing the fastest here in New York. As NYCLU Executive Director Donna Lieberman wrote in the press release, "The impact of DOMA is felt most dramatically today here in New York," because, "At least 10,000 same-sex couples have been married in New York since our marriage law went into effect."

It's great that they could wed here. But, as Lieberman notes, the Marriage Equality Act is also inadvertently allowing tens of thousands of Americans to enter into a perverse, more acutely obvious state of "second-class citizenship" in the eyes of the federal government.

When we spoke last month, Windsor told the Voice that this case has given her a "reason to live" after the death of her spouse. The 83-year-old looked electric as she began the march down Fifth Avenue in the Pride March just a few weeks ago.

Her departed wife didn't get to live to see their marriage fully recognized, but here's to Windsor getting to live to see her decades long fight for equality fully realized before the highest court in the land.

Here's the full press release:

July 16, 2012 - Edith "Edie" Windsor, who sued the government for failing to recognize her marriage to her late spouse, Thea Spyer, asked the U.S. Supreme Court today to hear her challenge to the so-called "Defense of Marriage Act" (DOMA).

The petition for certiorari to the Supreme Court was filed on Windsor's behalf by her attorneys at Paul, Weiss, Rifkind, Wharton & Garrison LLP, the American Civil Liberties Union, the New York Civil Liberties Union and the Stanford Law School Supreme Court Litigation Clinic.

In June, a federal district judge in New York ruled in Windsor's favor that section three of DOMA unconstitutionally discriminates against married same-sex couples. The Justice Department and the leadership of the House of Representatives recently asked the Supreme Court to hear DOMA challenges in two other cases, including a case, like Windsor's, that is still pending in a federal appeals court.

"With Edie's case and the two others, the high court has before it striking illustrations of the many different harms that DOMA inflicts on many thousands of married same-sex couples all across the country," said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project. "Edie and Thea got married after making a life-long commitment to each other, and it's just wrong for the government to pretend that they were legal strangers."

Windsor and Spyer lived together for more than four decades in Greenwich Village. Despite not being able to marry legally, they were engaged in 1967. In 1977, Spyer was diagnosed with multiple sclerosis, and Windsor helped her through her long battle with that disease. They were finally legally married in May 2007.

When Spyer died in 2009, she left all of her property to Windsor. Because they were married, Spyer's estate normally would have passed to Edie as her spouse without any estate tax at all. But because of DOMA, Windsor had to pay more than $363,000 in federal estate taxes. Payment of the federal estate tax by a surviving spouse is one of the most significant adverse impacts of DOMA since the amount owed, as was true in this case, is often quite substantial.

"Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition," said Roberta Kaplan, a partner at Paul Weiss and counsel to Windsor. "Because the District Court's ruling in her favor is entitled to an automatic stay of enforcement, Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime."

"The impact of DOMA is felt most dramatically today here in New York," said NYCLU Executive Director Donna Lieberman. "At least 10,000 same-sex couples have been married in New York since our marriage law went into effect. But DOMA subjects gay and lesbian married New Yorkers to a form of second-class citizenship. All married couples should have their marriages respected by the federal government, once and for all."

In the meantime, Windsor will continue to defend her victory before the U.S. Court of Appeals for the Second Circuit, which has agreed to hear her case on an expedited basis.

To read the full petition to the Supreme Court or to see photos of Windsor and Spyer, visit http://www.nyclu.org/news/supreme-court-asked-review-edie-windsors-challenge-defense-of-marriage-act.

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You can follow staff writer Steven Thrasher on twitter (@steven_thrasher) or reach him by email (sthrasher@villagevoice.com).

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