A Eulogy for Edie Windsor and a Call to Resist Injustice

The significance of Edie Windsor who died earlier this week is likely lost on most heterosexuals and most certainly on Republicans who regularly vote for candidates who seemingly revel in the denigration of gays - and for that matter every other minority.  As a married gay man, thanks to Edie Windsor, the Defense of Marriage of Marriage was struck down and the federal government was forced to recognize same sex couples for tax purposes and on many other issues.  She was one of those who I have recognized as a single individual who chose to put herself on the line and make a difference.  At her funeral today (the image above was from a photo taken by a friend at that ceremony) there were a number of speakers, one of whom was Hillary Clinton.  Clinton not only eulogized Windsor, but also used the occasion to call for renewed resistance to injustice.  Slat looks at Clinton's remarks at the funeral today.  Here are article highlights:

On Friday, hundreds of people came together at New York City’s Temple Emanu-El for the funeral of Edie Windsor, the “mother of marriage equality” who died on Tuesday at age 88. Windsor sued the United States government when it refused to recognize her marriage to Thea Spyer; her suit ultimately toppled the federal ban on same-sex marriage and paved the way for nationwide marriage equality. Among the luminaries who paid tribute to Windsor was Hillary Clinton, whose beautiful eulogy also functioned as an impassioned call to resist injustice with Windsor’s indomitable positivity and joy.

Clinton began by asking: “Doesn’t it just feel great being here to honor and remember someone who had such a positive, lasting influence on our country and the world?” That might seem like an oddly cheerful start for a eulogy, but Friday’s proceedings had a celebratory air given Windsor’s extraordinary accomplishments and richly lived life. (She remarried last year.) Windsor, Clinton said, “didn’t set out to make history”—but the love she shared with Spyer was “its own quiet revolutionary act.” When Spyer died in 2009 and the government demanded that Windsor pay an immense estate tax, “she knew she had two choices: Accept this painful injustice or fight back. She chose to fight back, all the way to the highest court in the land.”

Clinton continued:

The day Edie won, much of America cheered with her … with a recognition that a wrong had been righted. Through it all, her strength never wavered. … It is fitting that she will be immortalized in history books in that landmark decision synonymous with equal rights and dignity under the law. But she didn’t stop there. She continued to support the needs and the rights of the LGBT community. She helped change hearts and minds, including mine. And we are forever grateful to her for that.

Then Clinton reached the core of her address: the tension between our desire to improve the world and our despair over its seemingly intractable injustices. Windsor, Clinton pointed out, faced a great many injustices. She took care of Spyer for decades as her multiple sclerosis worsened, and when Spyer died, the government wouldn’t recognize their marriage; instead, it sent her a tax bill that she wouldn’t have had to pay if Spyer had been a man. This blatant cruelty might have made Windsor bitter or resentful toward her country. But, Clinton explained:

How she experienced loss, grief, and injustice made her only more generous, more open-hearted, and more fearless in her fight. She refused to give up on the promise of America. There wasn’t a cynical, defeatist bone in her body. That’s especially important for us to remember now. Through her determination and sheer force of will, she brought us another step closer to that more perfect union. Now, in this moment when so much hard-fought progress is hanging in the balance, it is up to all of us to pick up where she left off.

Clinton’s message, which echoes former President Barack Obama’s tribute issued shortly after Windsor’s death, isn’t exactly subtle. But it is a critical reminder in these exceedingly dark times of the wonderful things that America can accomplish when Americans stand up to prejudice and fear. Windsor fought for equality and achieved it in her lifetime. What will we achieve in ours? The forecast seems dire these days. But in her eulogy, Clinton urges us not to give up hope, not to waste our days with sorrow and helplessness. She closed with a quote from the poet Mary Oliver: “Tell me, what is it you plan to do with your one wild and precious life?”

“Let us continue to be inspired by Edie’s wild and precious life,” Clinton said. “And let us make her proud every day of how we answer that question for ourselves. Thank you, Edie.” 

Christofascists and much of the Trump/Pence base will no doubt be unmoved by Windsor's life or Clinton's remarks.  However, decent and moral people hopefully will hear the message and renew their determination to resist those who would trample on the rights of other citizens and make the conscious decision that they will not be akin to the "good Germans" who chose not to act and thereby helped the nightmare of Hitler's Nazi regime to grow. 

Obama Administration Brief Urges that DOMA be Struck Down

In a welcome move, the Obama administration has filed a brief in United States v. Windsor now before the U.S. Supreme Court that the Defense of marriage Act, a/k/a DOMA is unconstitutional under the Equal Protection Clause of the United States Constitution.  DOMA bars same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married heterosexual couples.  NBC News has details on the government's brief.  Here are highlights:

The brief was filed Friday in United States v. Windsor, a case challenging Section 3 of the Defense of Marriage Act, or DOMA, the law that legally declares marriage to be only between a man and a woman. That section allows state and federal authorities to deny benefits to same-sex couples that are commonplace for heterosexual couples, like insurance for government workers and Social Security survivors' benefits.

In its brief (.pdf), the U.S. bluntly declares: "Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. 

"The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples," said the brief, which was signed by Solicitor General Donald Verrilli, the government's chief trial lawyer. "Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional."

In a footnote, the brief mentions California's Proposition 8 and similar measures in other states as evidence that anti-gay discrimination remains a major problem.

SCOTUSblog has more details on the brief and the government's argument.  Here are excerpts:

The Obama administration, in a sweeping defense of marriage rights for same-sex couples, argued on Friday that the denial by states of those rights over the last decade is proof that discrimination against gays and lesbians still continues. The brief cited California’s flat ban on such marriages — Proposition 8 — as an example of the ongoing problem of bias against homosexuals.

In the context of the brief, the brief references to California’s Proposition 8 were subtle and fleeting, but they immediately raised the question of whether the administration was getting into position to come out directly, next week, against that voter-approved ballot measure.
 
In a separate administration brief, also filed Friday in the Windsor case, the government’s lawyers argued that their appeal challenging the constitutionality of the federal Defense of Marriage Act is properly before the Court, and thus can be decided in that case.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians. Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.” And Friday’s brief defended that approach energetically.

This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court. The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

Some observers — including one judge who was on the court panel that ruled in the case the administration has taken to the Court — have argued that, if the tougher standard is applied, not one of the state denials of marriage to same-sex couples can survive constitutionally. Such denials have come in thirty-nine states.

Here, in summary, is how U.S. Solicitor General Donald B. Verrilli, Jr., the administration’s top courtroom advocate, went about bringing Proposition 8 and the other thirty-eight states’ denials into the Windsor case:

First, among the factors that Verrilli cited in arguing for the standard were those that have led the Court, in cases involving other forms of discrimination, to adopt a “heightened scrutiny” standard: that is, whether the group seeking that kind of protection has been a target of discrimination and has been lacking in political power so that it has less or little chance of gaining protection.

Second, in finding that gays and lesbians have been, in the past and currently, the targets of discrimination and have been lacking in political power, Verrilli cited “the recent history of marriage initiatives” — the history of thirty-nine states, including California with Proposition 8, adopting bans on same-sex marriage, either by state laws or constitutional amendments.

Third, Verrilli pointed out that, at the time DOMA was passed in 1996, only three states had laws allowing only opposite-sex couples to marry. Now, thirty-nine states do, with thirty of those coming from voter-approved state constitutional amendments.

Fourth, only six states have given same-sex couples marriage rights “through the political process,” while three more have done so through state court rulings. “That is not a convincing record of political power rendering protection unnecessary,” Verrilli wrote. And, at that point, the brief dropped in a footnote, which said that, “[b]y way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriages….In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.”

The government’s brief on the Court’s jurisdiction argued that the Republican leaders of the House of Representatives, who have taken up the defense of DOMA after the Administration abandoned it, do not have a legal right under Article III to take the place of the federal government in pursuing a final Court ruling on DOMA’s validity.   But, the brief said, the Court need not reach the issue of the GOP leaders’ “standing” because the federal government is properly before the Court in the Windsor case.

DOMA Supporters' Brief Claims Gays Too Powerful to Need Court Protection

Paul Clement (pictured above) -- the a former United States solicitor general and current partner with the Washington law firm Bancroft P.L.L.C, who is ripping off American taxpayers to the tune of $3 million so far - is apparently drinking Christofascist Kool-Aid.  How else to explain his argument in the brief filed on behalf of the GOP Congressional Conference in support of DOMA that says gays have become so powerful that  "There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fastmoving as same-sex marriage."  Clement needs to come across the Potomac to Virginia where we "powerful" gays have ZERO employment non-discrimination protections, have no non-discrimination protections in housing, and receive ZERO recognition of our committed life relationships.  In Virginia, we have about as much power politically as the slaves did in the Confederacy.  A piece in Huffington Post looks at this utter batshitery that all taxpayers are being forced to subsidize.  Here are excerpts:

A conservative attorney working on behalf of the GOP bolstered his argument to uphold the Defense of Marriage Act (DOMA) with the rationale that gay Americans have become so powerful they do not need special judicial protection as a minority. 

House Republicans have enlisted the services of Paul Clement -- a former United States solicitor general and current partner with the Washington law firm Bancroft P.L.L.C -- to fight their $3 million DOMA battle after President Barack Obama decided his administration will no longer defend the anti-gay legislation. 

On Tuesday, Clement's 60-page brief in United States v. Windsor was filed with the Supreme Court, revealing his arguments for the court to uphold DOMA, according to Think Progress.  Via United States v. Windsor:

In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history ... There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fastmoving as same-sex marriage.

United States v. Windsor is the Supreme Court version of Windsor v. United States, in which a New York federal court found that Section 3 of DOMA is unconstitutional and violates the Fifth Amendment. Section 3 defines marriage as "a legal union between one man and one woman as husband and wife" and spouse as "a person of the opposite sex who is a husband or a wife," thus providing unequal protection under the law. 

Think Progress blogger Ian Millhiser disputes Clement's argument, writing:

Political victories do not cancel out Americans’ constitutional rights, they augment them, and Clement is simply wrong to suggest otherwise. Ultimately, the sheer absurdity of Clement’s argument exposes why his claims must not prevail at the Supreme Court. The Constitution of Seneca Falls and Selma is also the Constitution of Stonewall. Clement’s argument would deny all three.

Clement is a liar and arguable mentally ill if he seriously believes his own argument.

 

Additional Lawyer Selected to Argue in Supreme Court DOMA Case

In a somewhat unusual move, the United States Supreme Court has selected an additional attorney to argue two procedural issues raised in the Edie Windsor DOMA case, namely that (1) that the Supreme Court does not have standing to review the U. S. Court Appeals for the Second Circuit ruling because Executive Branch has already conceded that DOMA is unconstitutional, and (2) the House of Representatives’ Republican leaders do not have a right to appear in the case under Article III of the Constitution which states the jurisdiction of the federal courts, including the Supreme Court, and the types of cases these courts can consider.  SCOTUS Blog looks at this development which suggest that in both the Prop 8 appeal and the DOMA appeal, the Supreme Court could using a decision of lack of standing to avoid rendering a substantive ruling.  The result would be that (a) the ruling striking down DOMA would stand and (b) the ruling striking down Prop 8 would stand and the impacts would be limited to the Second and arguably the First Circuits and, in the case of Prop 8, California, respectively.  Here are some article highlights:

The Supreme Court on Tuesday chose a Harvard professor of constitutional law, Vicki C. Jackson, to argue that the Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act. She will file a brief and appear to argue the two procedural issues that the Court itself had raised in agreeing last Friday to consider DOMA’s validity.

Jackson, who joined the Harvard faculty last year after several years at the Georgetown University Law Center, will contend that the executive branch’s agreement with a lower court that DOMA is invalid takes away the Justices’ authority to rule on DOMA, and that the House of Representatives’ Republican leaders do not have a right to appear in the case under Article III of the Constitution. The professor will appear in the case as an amicus to make only those points, not to join in the debate over the constitutionality of DOMA, which the Court also will be considering.

When the Court accepted for review two cases on the same-sex marriage issue, it added questions to each on issues about its authority to rule. The second granted case involves the constitutionality of California’s “Proposition 8,” withdrawing the right of gays and lesbians to marry in that state. In that case, the Court also will be considering whether the proponents of “Proposition 8″ as a ballot measure have a right under Article III to appeal a lower court decision striking down that measure.

With the addition of Professor Jackson to the DOMA case, it appears likely that the Court will expand the argument time for that case beyond the usual one hour. It is unclear when the Court will announce an argument schedule for the new marriage cases.

The Court presumably reached beyond the two parties in the DOMA case for a lawyer to argue the procedural points, since the parties themselves disagree. The federal government has been willing to allow the House GOP leaders to be in court to defend DOMA’s constitutionality, since the government is no longer doing so, but has raised questions about whether the Republican leaders’ petition is the one the Court should consider on DOMA. In turn, the Republican leaders have contended that, since the government got its way in the Second Circuit Court, it is not a proper party to be appealing this case on DOMA. Professor Jackson, a neutral, will argue against both as the proper parties.

 

Gay Marriage and DOMA: What Will the U.S. Supreme Court Do On Friday?

Many of us who have been following the Proposition 8 case and the various cases in which the federal Defense of Marriage Act ("DOMA") are waiting with a mix of anticipation and dread to see what the U. S. Supreme Court decides to do on Friday when it decides which, if any of the Prop 8 and DOMA cases it will consider this current term.  If the Court refuses the Proposition 8 case, then marriage will be legal again in California and the Court will have ducked making a ruling that would potentially have national application.   In the case of the DOMA appeals, the Court cannot as easily side step the issue since there are split decisions in the federal courts and typically the Supreme Court will act to set consistent precedent across the country.  Some legal experts now speculate that the Edie Windsor case (Windsor is pictured above) may be the one most likely to be taken up by the Supreme Court.  As readers may recall, both the U.S. Department of Justice and the City of New York have supported Windsor's claim that DOMA is unconstitutional.  An article by the American Constitution Society lays out why such is the case.  Here are excerpts:

While marriage equality supporters have been giving thanks for the recent ballot box victories and the Second Circuit’s Windsor v. U.S. decision, the most recent Defense of Marriage strike-down by a federal court in mid-October, the law-focused among us are also looking ahead to the next big question: What will the U.S. Supreme Court do on Nov. 30, when it is scheduled to decide on the marriage-related cert petitions pending before it?

Notably, Windsor is now looking, to many, like the leading candidate among cert-worthy marriage cases and, for marriage equality advocates, a particularly promising one for at least three reasons. 

Perhaps most importantly, Windsor presents a powerful – and personal – story of DOMA’s discriminatory effects on lesbian and gay married couples. Edie Windsor and Thea Clara Spyer were together for 42 years, from the early 1960s through Speyer’s death in 2009, two years after the couple married in Toronto, in a relationship so committed and moving that it became the subject of a widely acclaimed documentary, Edie and Thea. Yet because of DOMA, the United States refused to recognize their relationship and, when Thea died, sent Edie a $300,000+ tax bill that would have been $0 had the government acknowledged their marriage.

In addition to its facts, Windsor also adds a new dimension to the DOMA jurisprudential landscape. Among the ten federal court rulings to invalidate DOMA thus far, Windsor is the first where a circuit court applied heightened scrutiny to the statute’s sexual orientation-based classification. In the 2-1 ruling, Chief Judge Dennis Jacobs followed the high court’s traditional analysis, asking whether gay people have suffered a history of discrimination; whether sexual orientation is a distinguishing characteristic; whether sexual orientation relates to an individual’s ability to contribute to society, and whether gay people are relatively politically powerless. All of these inquiries, he found, warrant intermediate scrutiny for classifications that, like DOMA’s, distinguish between gay and non-gay people. 

Finally, many believe that Justice Elena Kagan is likely to recuse herself if the Court accepts the First Circuit’s Gill case for review because she had some involvement in the case during her Solicitor General service. By all accounts, the full Court, including Justice Kagan, would be available to hear and decide Windsor.

 As has been noted on this blog many times, there is no rational basis for DOMA at any level of scrutiny because it's sole basis flows from granting special privileges to certain Christian religious beliefs over the rights of citizens.  Not only does it violate the Equal Protection Clause, it also is rank religious based discrimination and a violation of the First Amendment grant of religious freedom to all citizens, not just Christofascists.