The story of Edith Windsor and Thea Spyer has intrigued me since I came across their marriage announcement in the New York Times. On Nov. 12, 2010 on this blog I posted a short video of them. Check it out in the Nov. 12, 2010 blog below.

A $363,000 Tax Bill to Widow Led to Obama Shift in Defense of Marriage Act

from Bloomberg News

http://www.bloomberg.com/news/2011-02-28/a-363-000-tax-bill-to-widow-led-to-obama-shift-in-defense-of-marriage-act.html

Widow’s Tax Bill Led to Shift on Marriage Act

Same-sex marriage is lawful in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and the District of Columbia. Photographer: David McNew/Getty Images

Edith Windsor and Thea Spyer had a 40-year engagement and a two-year marriage, starting with a wedding in Canada recognized under the laws of New York, where they lived, and ending when Spyer died two years ago.

Her death triggered a $363,053 federal tax bill from which her widow would have been exempt had she been married to a man, because the federal Defense of Marriage Act bars the U.S. government from recognizing same-sex unions.

Windsor’s lawsuit challenging the constitutionality of the act was one of two cited by the Obama administration to justify its decision to stop defending the law. The decision may be a turning point in the fight over putting same-sex marriages on the same footing as heterosexual unions.

“I couldn’t believe that our government would charge me $350,000 because I was married to a woman and not a man,” Windsor, 81, said in a video statement from the American Civil Liberties Union, which is helping to represent her.

Signed into law by President Bill Clinton, the act by 2003 affected 1,138 federal programs in which marital status was a factor in eligibility for benefits, according to the government.

Windsor’s suit to reclaim Spyer’s money from the U.S. is one of two cited by Attorney General Eric Holder in a Feb. 23 announcement that President Barack Obama’s administration would not defend the law in court.

The U.S. won’t argue the act is constitutional in Windsor’s case in federal court in New York and in a Connecticut case involving seven plaintiffs, Holder said in a press statement and letter to House Speaker John Boehner, an Ohio Republican. Notices went to the judges Feb. 25.
Connecticut Case

In the Connecticut case, the seven people — each a survivor or partner of a state-recognized gay spouse — say the act deprived them of the same federal benefits afforded heterosexual couples.

Holder said the department will provide Congress “a full and fair opportunity to participate in the litigation.”

A Boehner spokesman, Kevin Smith, declined in a phone interview to say if, when or how Congress might enter the fray.

Both women in the New York case were professionals, with homes in Manhattan and Long Island. The Amsterdam-born Spyer was a clinical psychologist. Windsor, born in Philadelphia, earned a master’s degree in mathematics from New York University and built a career as a manager for International Business Machines Corp., according to a complaint filed in her case.

Their relationship began in a Greenwich Village restaurant in 1963 while both women were in their 30s. They “danced together all night,” according to the document.

Two years later, they met again on Long Island and were together from then until Spyer died.
Plan for Life

“I’d like to date for a year,” the document quotes Windsor as telling Spyer. “And if that goes the way it is now, I think I’d like to be engaged, say for a year. And if it still feels this goofy joyous, I’d like us to spend the rest of our lives together.”

An engagement that started in 1967, symbolized by a diamond pin instead of a ring that would attract notice at IBM, lasted 40 years. In 2007, with same-sex marriage then legal in Canada, they married in Toronto at ages 77 and 75.

New York, where a bill extending the right to marry to same-sex couples was defeated in 2009, recognizes such marriages that are legal in other jurisdictions, according to Windsor’s complaint.

Most recently, a New York appeals court ruled last week that the surviving husband of a same-sex couple married in Canada can inherit from the deceased man’s estate as any other spouse would.
Long Fight

Spyer, at age 45, started a three-decade battle with multiple sclerosis. Her last dances with Windsor were in an electric wheelchair. Later she developed a narrowing of a heart valve, according to the court document. She died in 2009.

Windsor paid the federal estate tax, giving her the right to ask for a refund and sue when it was denied, which she did in November.

She argues through her lawyers at Paul, Weiss, Rifkind, Wharton & Garrison and the ACLU that the government lacks both a rational basis for the marriage act “much less a compelling interest” — the legal tests for treating members of one particular group differently from others.

Four other challenges to the law are pending in federal courts in San Francisco and in Boston, where the government has already appealed Judge Joseph L. Tauro’s July 8 decision that federal regulation of marriage was an unconstitutional breach of states’ rights. Same-sex marriage is lawful in Massachusetts.

The marriage act, Tauro ruled, forced the state to “engage in invidious discrimination against its own citizens in order to receive and retain federal funds.”
Six Challenges

Only six challenges to the 15-year-old law are in federal courts because nobody had standing to sue until same-sex marriage became legal in some places, said Jennifer Pizer, an attorney for the gay-rights group Lambda Legal.

Same-sex marriage is lawful in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and the District of Columbia.

Holder, in his letter to Boehner and in his press statement, said he will tell the U.S. Court of Appeals in Boston and the judges in two San Francisco cases who are also considering the Defense of Marriage Act’s constitutionality that the more rigorous standard of constitutional review is required.

The current standard under case law in those federal circuits is that there merely be a rational basis for the law. There is no Supreme Court ruling on the marriage act that would resolve the difference.
Precedent Lacking

The appeals court that would hear the Windsor and Connecticut cases has no such precedent to follow, Holder said.

The higher standard, whether the law is substantially related to an important government objective, is used to assess the constitutionality of laws targeting minority groups that have historically suffered discrimination, the attorney general wrote.

The Obama Administration’s abdication drew fire from the marriage act’s supporters.

Michael Steel, a spokesman for Boehner, said in an e-mail he questions why President Barack Obama “thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation” when “most Americans want Washington to focus on creating jobs and cutting spending.”

Texas Attorney General Greg Abbott said the law is “undoubtedly constitutional.” He accused Obama of politicizing the Justice Department, trying to empower judges to ignore democratically enacted legislation that conflicts with his ideological preference.

Supreme Court Silence

No challenge to the law has gone to the Supreme Court, and it has never said sexual orientation is cause for a heightened standard of statutory review, said Harvard Law School Professor Charles Fried, a U.S. solicitor general under Republican President Ronald Reagan.

Fried said he thinks the law is unconstitutional because marriage is an issue for states, not the federal government.

“If the states want to say this is a marriage, I don’t think the feds should be interfering with it,” he said in a Feb. 25 interview, referring to same-sex unions.

At the same time, he criticized the Obama administration for abandoning the defense of the statute.

“They should have held their noses and defended it,” Fried said. “That’s their job.”

The absence of administration support for the marriage act doesn’t mean its challengers have won.

The Justice Department will continue to enforce the law, Holder said, meaning that the administration’s abandonment of the statute’s defense shouldn’t be construed as granting same- sex couples the same federal benefits as heterosexuals.
Enforcement Requirement

The federal government is bound to enforce the law as it applies to federal rules unless it is repealed by Congress or “the judicial branch renders a definitive verdict against the law’s constitutionality,” Holder said in the letter to Boehner.

“Much of the legal landscape has changed in the 15 years since Congress passed DOMA,” Holder said.

“The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional.”

Besides the states where gay marriage is legal, seven others recognize civil unions, under which some of the same protections afforded heterosexual couples are extended to same- sex couples.

Hawaii Governor Neil Abercrombie signed a civil-union bill into law on Feb. 23. A similar Illinois law takes effect June 1.
State Constitutions

Twenty-nine states including Florida, Texas, Missouri, Virginia and Utah have constitutional amendments barring same- sex marriage, according to Lambda Legal, a proponent of equal rights for gay, lesbian and transgender people.

The Supreme Court backed gay rights in 1996 when it overturned a Colorado constitutional amendment that banned anti- discrimination protection for homosexuals, and again in 2003, when it struck down state laws criminalizing sodomy.

In both cases, Justice Anthony Kennedy’s majority opinion suggested the government needed to show more than just a rational basis for enacting the challenged law. Kennedy looms as the potential swing vote should the court take up a gay marriage case, according to Paul Smith, a Jenner & Block LLP lawyer who argued on behalf of opponents of the sodomy laws and represents some of the challengers to the federal marriage law.

“One could certainly predict that he’d be likely to apply some form of heightened scrutiny even if he might still call it rational basis,” Smith said.
Motions Due

Motions to dismiss in Windsor’s case and the Connecticut matter are due March 11.

Congress could join the case by getting permission from the court, Fried said. He said it’s unclear whether the houses of Congress could act independently of each other.

Lambda’s Pizer said the appeals court in the Boston case probably would give Congress permission to intervene so there would be a complete set of arguments for Supreme Court review.

“There will be defenders,” James Esseks, an ACLU attorney, predicted. “It just won’t be the Department of Justice.”

As we await Hawai’i Governor Neil Abercrombie’s signature on a civil unions bill later today, the news from Washington, Dc is fabulous. US Attorney General Eric Holder and President Barack Obama have concluded that the Defense of Marriage Act is unconstitutional and indefensible.

Of course this will not be the end of the story. Congress and other parties will probably get involved and do a lot of grandstanding about marriage equality but a very big decision for equality has been made.

It will be thrilling and challenging to watch how this next phase of our civil rights battle plays out. I do not expect it to be a cakewalk–by any means.

The DOMA challenges from GLAD’s Mary Bonauto and MA Atty. Gen. Martha Coakley pushed the envelope in the struggle for equality.

Check out the full story in Obama Orders End to Defense of Federal Gay Marriage Law.

Will LGBT service members stationed in Massachusetts or any or the other 5 states or the District of Columbia be able to marry and have that marriage recognized by the military. I’m hoping.

As some folks here in Hawaii continue to push in the legislature for civil unions (newly elected Gov. Neil Abercrombie says he’ll sign the bill immediately) the prospect of revolutionizing all of the military bases here is in the offing.

In all of this struggle, I really have been so impressed by Lt. Dan Choi and I was delighted to see that he was invited to the White House signing of the repeal. Heard on the coconut wireless that he asked Obama to walk him down the aisle. Now there’s a Kodak moment in the offing.

Check out Sen. Harry Reid returning Choi’s West Point ring. Guess Reid won’t be the hubby.

Lt. Dan Choi gets his West Point ring back from Sen. Harry Reid

Okay, here’s a new strategy to use talking with people about marriage equality. Schedule a showing of “The Golden Girls” with some of your curmudgeonly “friends.”  Laugh it up and then when the show is over roll out the Parade  magazine quote from Betty White:

I hope that older members of the LGBT community will go out there and talk to kids and let them know that there is a future after the travail of growing up gay. I applaud Dan Savage’s It Gets Better initiative. More of us have got to speak the truth to LGBT youth. I want LGBT youth to expect total equality. Not just marriage equality.

Listening to Ted Olson and David Boies on Bill Moyers’ Journal gave me great hope that our cause for marriage equality was in good hands. Like many in the LGBT community, I had to evolve to this position. Olson’s role in the Bush administration gave me great pause in jumping to trust him. The presence of Boies made me believe that I ought to be open-minded.

If they are successful in challenging Proposition 8 with the Perry v. Schwarzenegger case, Olson and Boies may win marriage equality for LGBT people in 45 states. This would be a major sweep for civil rights. It would also make those of us in the five states and one jurisdiction that have marriage equality feel more secure.  There are, however, possibilities that the outcome of the case may have downsides for the LGBT community.

Matt Coles, head of  the ACLU’s LGBT Project, has given us some scenarios on Huffington Post of what the decision of the Federal District Court may be. Well worth reading.

More tomorrow. Stay tuned.

Yesterday at the Hawai’i State Capitol we celebrated a Senate vote of 18-7 in favor of civil unions. There is some irony in the celebration because in 1993 Justice Steven Levinson, writing for the majority, ruled in Baehr v. Lewin that same-sex couples should not be denied marriage equality.

But yesterday, 16 years later, I found myself with Justice Levinson and hundreds of others celebrating the first step of achieving relationship equality in Hawai’i: passing a civil unions bill out of the Hawai’i state senate.

Supporters of the civil unions bill — including Pat Gozemba, left, and retired state Supreme Court Justice Steven Levinson — celebrated yesterday. In 1993, Levinson co-authored the decision saying that Hawaii needed a “compelling state interest” for denying marriage licenses to same-sex couples. Photo by Dennis Oda of The Star Bulletin.

How did Hawai’i get itself in this time warp? A constitutional ballot amendment in 1998 gave the legislature the authority to determine what marriage is. The legislature chose the discriminatory route: one man and one woman.

But the legislature did not take the ultimately discriminatory route and institutionalize marriage inequality in the state constitution through a constitutional convention.

The Hawai’i House of Representatives will now take up the civil unions bill. Marriage equality, a glimmer of hope in 1993, seems so remote.

Karen Ocamb wrote an insightful and very instructional piece, “Federal Challenge to Prop 8 Hearing Today,” in LGBT.POV. Ocamb is focused on the Ted Olson and David Boies federal suit on behalf of Americans for Equal Rights. They have set out to prove the unconstitutionality of Prop 8. Ocamb gives important context for today’s case. All of us who are struggling to achieve marriage equality should read her article and consider the strategies that our opponents are mounting against us.

I’m back in Hawaii and looking forward to joining with the LGBT community and our many allies in trying to bring some semblance of equality to this island state where the contemporary marriage equality movement all began with a favorable court decision in 1993. Sure, the brave decision of the Hawai’i high court brought about the backlash of the Federal Defense of Marriage Act (DOMA) in 1996, but it also woke up many of us to come to believe that we deserved the right to marry. No matter how many states put in place their own versions of DOMA, the very possibility of a hope for equality ignited the imaginations of millions of people committed to justice.

Since 1993, the creativity of civil rights activists across the country has brought us to courts, legislatures, and public forums of all sorts. It’s pumped up our grassroots organizations like the Courage Campaign and Join the Impact and some of the tried and true warriors on our side like the American Civil Liberties Union.

But that, sixteen year-old court victory in Hawai’i has done the same for the anti-equality movement, those who want to assure that they are more equal and more righteous. Their forums have largely been hidden behind church doors and fueled by church coffers. The religious engines that are stoking the denial of our civil rights are Catholic and Mormon. They have created the National Organization for Marriage, a slick hate group that has served as a conduit for Mormon and Catholic money and kept up an internet presence.

The anti-equality side also hit pay dirt when they hired political consultants Frank Schubert and Jeff Flint to run the “Yes on Prop 8” campaign in California (2008) and then the “Yes on 1 Stand for Marriage” campaign in Maine (2009). The campaigns were virtually the same and were fueled by the big lies of made up “consequences,” of marriage equality particularly the sure-fire inner, the teaching of gay marriage to schoolchildren. We will hear this and all of their other nightmarish projections all over the country. The lies work.

As the Hawai’i Family Equality Coalition focuses its attention on the state senate in hopes of passing HB 444 a civil unions bill, we would all do well to study Karen Ocamb’s analysis of the strategies that Olson and Boies are using in federal court as well as those of Schubert and Flint that local copycats like the Hawaii Family Forum and Transformation Hawai’i.

LGBT allies, read and study Ocamb’s article.