You've likely never heard of Edie Windsor. Advocates for changing marriage law in the United States, however, hope that many will come to visualize her when they think about same-sex marriage. More importantly, Edie's lawsuit, Windsor v. United States, just may be the legal instrument that overturns a central provision of the so-called Defense of Marriage Act.
Edie Windsor and her partner, Thea Spyer, lived together as a couple in New York City over 40 years. Four years after they met through mutual friends in 1963, the couple became "engaged." Their engagement lasted four decades until they were finally able to marry in Toronto in May of 2007. Thea died in February 2009. Although New York has yet to approve same-sex marriages performed in the state, an executive order handed down in 2008 recognizes such marriage legally performed elsewhere. Thus, Edie and Thea were married at the time of Thea's death, not just in the eyes of Canada, but also in the eyes of the State of New York.
But they were not married in the eyes of the U.S. government. Any opposite-sex couple in the same situation (even if they'd been together only a fraction of the time) would be deemed "married" by the U.S. government because a state said they were married. Federal recognition of marriage brings with it benefits in the areas of tax law, Social Security law and immigration law, among others. Section 3 of the Defense of Marriage Act, however, denies those benefits to many married couples by stating that a "marriage" is only one between a woman and man. (In perhaps the most craven act of his political life, President Clinton's re-election campaign ran ads on rural, Christian radio stations bragging about his 1996 signing of the bill that "protected" marriage.)
Across their 44 years as partners, Edie and Thea shared the typical mixture of joys and challenges that all couples face. The most trying aspect of their time together was Thea's diagnosis of multiple sclerosis in 1977 that eventually led to her paralysis and, finally, her death. Edie was her caretaker throughout her illness.
Thea, naturally, left her belongings — including a home — to Edie. But because Edie and Thea were legal strangers, Edie has to pay over $350,000 in estate taxes. An opposite-sex spouse who had received such an estate would not have paid any estate taxes. Now 81, Edie is living on her retirement savings, a large percentage of which will go to pay this significant tax bill.
The ACLU has taken Edie's case and is challenging the provisions defining marriage federally in a case filed in the U.S. District Court in the Southern District of New York. The venue is important because the federal circuit in which it falls has no case law on the issue. Thus, the Obama administration will have to take a clear stance before March 11 on whether the Equal Protection clause requires only a rational basis test or a strict scrutiny test when evaluating discrimination against gay couples. Many argue that the law might not even survive a rational basis test, but a strict scrutiny test would surely be its death knell.
Hearing the grandmotherly Edie talk about the love shared by her and Thea will make even the most cold-hearted rethink their opposition to same-sex marriage. It is why marriage proponents want the story heard by millions. It is the views of one president ("evolving" on the issue of marriage, in his own words), however, that will matter most in determining whether America is on the path to treating all married couples with basic fairness.
Jay Barth is the M.E. and Ima Graves Peace Distinguished Professor of Politics at Hendrix College. Max's column will return next week.