In Memoriam: Edith Windsor, 1929-2017

We have lost a darling lady and champion of the right to marry.  May she rest in peace.

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New York Times obituary here.

Richard Socarides in the New Yorker calls her "our Rosa Parks."

Former President Obama paid tribute to her on his Facebook page.

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One Year On: Windsor v. United States

Man, oh man. It's been a breathtaking roll down the fast lane since the Supreme Court delivered its historic ruling in Windsor v. United States a year ago today.   At the moment, same-sex marriage is legal in 20 states plus the District of Columbia; in the other 30, plus Puerto Rico, lawsuits are working their way through the courts.  Here's the latest map from Wikipedia of where things stand with the states:

And here's a clip of plaintiff Edie Windsor, the nation's favorite octogenarian lesbian, explaining how she got to the Supreme Court, with a little help from her friends:

IRS Recognizes All Married Gay Couples Across the Country

So much momentous, life-changing good news in one day, I can hardly take it all in, boys. After waiting all these many years for Change, now that it's arrived, it just seems unreal - am I waking or dreaming?

First, via Freedom to Marry:

Today, the Department of the Treasury and the Internal Revenue Service announced how they will implement the June 2013 Supreme Court ruling declaring the central part of the so-called Defense of Marriage Act unconstitutional. The Treasury Department and the IRS announced that all legally married same-sex couples will be fully respected by all federal tax programs, including income tax, gift and estate taxes, deductions, exemptions, retirement accounts, and child tax credit.

The ruling will be applied to same-sex couples who married legally in any U.S. state or international country that has approved marriage for same-sex couples. All couples - no matter which state they live in (even if they live in a state that discriminates against their marriage) - will be respected for these federal tax programs.

Treasury Secretary Jacob J. Lew announced the decision today. He said:

Today’s ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve. This ruling also assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.

Wonderful news and a great advance for equality and civil rights - but note that the ruling does not apply to couples in domestic partnerships or civil unions. Of course, every couple should seek professional advice on how best to make use of these new financial benefits.

What does this mean for you? Well for starters, bud, even if you aren't particularly well off, it means that if your husband dies and you inherit the house, you do not have to pay income tax on the value of it, or any part of his estate you inherit, if you guys were married. And that, fellas, is truly a big fucking deal.

For another thing here and now, if you have health insurance through your husband's employer's plan, it will no longer be counted as income to you, so you won't have to pay income tax on it any longer.

Evan Wolfson has compiled a comprehensive list of statements and policies from various federal agencies in the wake of the Windsor ruling here. At the time of this writing, it seems that Social Security for the near future will base benefits on whether a couple lives in a marriage-equality state or not, but that might change, so stay tuned.

See also these very helpful factsheets on Life after DOMA, and what it means for you in terms of bankruptcy, family and medical leave, federal student aid, and other pertinent issues.


Update, 4:45 p.m.:  More good news, via the Advocate:

The federal Department of Health and Human Services announced today that legally married same-sex couples on Medicare will be eligible for equal benefits and joint placement in nursing homes around the country.

In the wake of the Supreme Court's landmark ruling in June striking down a key section of the so-called Defense of Marriage Act, HHS secretary Kathleen Sebelius said today's announcement is just the first in a series of changes forthcoming in how the department deals with married same-sex couples.

"Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation," said Centers for Medicare and Medicaid Services administrator Marilyn Tavenner in a statement. "Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose." . . .

The new guidelines revise this standard, confirming that Medicare now applies equally to all married couples, regardless of where the couple resides. That's important for legally married gay and lesbian Medicare recipients who reside in a nursing home in a state that does not embrace marriage equality, since they will still be eligible for the same benefits as opposite-sex couples.

Update, Friday, 12:30 p.m.: Yesterday, a federal district judge in California struck down the provisions of Title 38 of the United States Code that limited veterans benefits to heterosexual couples. According to Freedom to Marry,

The judge wrote that there was no rational basis for the Department of Veterans Affairs to bar same-sex spouses from receiving these protections - that it is not related to the goal of gender equality, to any military purposes, or to the military's commitment to caring for veteran families. The judge explained that the definition of "spouse" in Title 38 of the Code of Federal Regulations is unconstitutional.

For now, the ruling is limited to married same-sex couples living in states with the freedom to marry. We await further clarification on how military families living in the 37 non-marriage states will be treated.

The case is Cooper-Harris v. United States, and here's a sweet video about the plaintiffs:

Reactions to the Marriage Rulings: Rachel

The full import of yesterday's rulings by the Supreme Court in the DOMA and Prop 8 cases is still settling in with your Head Trucker.  Here's Rachel's inimitable, insightful take on things, and this clip should lead you through several segments of her show last night, dealing with various facets of the marriage news.

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DOMA OVERTURNED, MARRIAGE RETURNING TO CALIFORNIA

Bless God, I have lived to see this day.

The Supreme Court this morning overturned Section 3 of DOMA in a 5-4 vote as being an unconstitutional violation of due process and equal protection - meaning the federal government has to recognize same-sex marriage in those states where it is legal; text of the ruling is here. Commentary from SCOTUSblog editors:

In response to some questions about Windsor: Only Section 3 of the Defense of Marriage Act -- which defines the words "marriage" and "spouse," for federal purposes, as referring only to marriages between opposite-sex couples -- has been struck down. Consequently, any federal statute that refers to a "marriage" or a "spouse" should be interpreted as applying with equal force to same-sex married couples.

The federal Defense of Marriage Act defines "marriage," for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.

The Court also in a roundabout way sent Prop 8 to the garbage can, also by a 5-4 vote; text of the ruling is here.  Comment from Amy Howe at Scotusblog:

Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.

Photos of plaintiff Edie Windsor, at the home of her attorney in New York City, as she heard that she won her case this morning, in the New Yorker.

Report on the rulings from NBC News, with some jubilant crowd reactions in the background:

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Update, 12 noon:  The ACLU has issued a FAQ on "Marriage for Same-Sex Couples in California," discussing the implications of the Court's ruling on Prop 8; a couple of notable excerpts:

A few final, legal steps must be completed before same-sex couples can once again marry in California, which should take only about a month. First, the Supreme Court’s ruling must become final, which will happen 25 days after the ruling. Under the Supreme Court’s rules, the party who loses a case has a right to ask the Court to re-hear the case within 25 days of the decision’s release. Petitions for re-hearing are very rarely granted, so it is unlikely that anything will change during this 25 days. Once the ruling is final, the Ninth Circuit will issue a “mandate” that will send the case back to the District Court. When the mandate is issued, the injunction against the enforcement of Prop 8 will take effect, and same-sex couples in California will once again have the freedom to marry. We expect that the State of California will issue guidance to all County Clerk offices in the state about when the decision becomes final and when those offices must resume issuing licenses on an equal basis to same-sex couples. Please note that couples should wait until the Supreme Court ruling is final and the Ninth Circuit issues a mandate to the District Court before attempting to obtain a marriage license or to marry, to ensure that your marriage is valid. . . .

Yes. The legal order (or injunction) that stops the State of California from enforcing Prop 8 applies to state officials throughout the state. This means that Prop 8 cannot be enforced anywhere in the state. There may be efforts to try to limit the effect of the injunction to apply to only some parts of the State but we strongly believe that those efforts are futile and will not succeed. . . .

If you live in another state and get married in California you will be legally married. However, depending on where you live, your home state may not respect your marriage. The Supreme Court’s ruling in United States v. Windsor striking down Section 3 of DOMA concerns only the federal government’s treatment of marriages. The ruling does not require states to recognize a valid marriage of a same-sex couple performed in another state. Thus, if you marry in California but live elsewhere, it is still possible that your home state will not recognize your marriage.

Update, 12:30 p.m.: In California, Governor Jerry Brown has issued the following statement:

After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California. In light of the decision, I have directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted.

Update, 12:45 p.m.: At the Pentagon, Secretary of Defense Chuck Hagel has issued this statement:

The Department of Defense intends to make the same benefits available to all military spouses -- regardless of sexual orientation -- as soon as possible. That is now the law, and it is the right thing to do. The department will immediately begin the process of implementing the Supreme Court's decision in consultation with the Department of Justice and other executive branch agencies.

Update, 1:00 p.m.: From aboard Air Force One en route to Africa, President Obama has issued the following statement:

I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal - and the love we commit to one another must be equal as well.

This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.

So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.

On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision - which applies only to civil marriages - changes that.

The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.

And in New York City, Edie Windsor, plaintiff in the DOMA case, had this to say, according to the Washington Post:

After learning of the Supreme Court ruling, Windsor broke into tears. “If I had to survive Thea, what a glorious way to do it, and she would be so pleased,” she said at a news conference. She thanked her lawyers and her allies, gay and straight: “We won all the way, so thank you from the bottom of my heart.”

Asked what Spyer would say to her if she were alive, Windsor replied, “‘You did it, honey.’”

And that's about as far as your Head Trucker can go today, I have to get some sleep now.  But I'll have more reactions and analyses in my next post, sometime tonight.

 

Odd sensation, looking out my window at the green grass and the rose bushes and the sycamore tree and corners of the blue summer sky above:  all is just as it was yesterday and all the days before, yet now there's something different about this plot of ground I live on, this green earth, this land of ours.  A quick, sly thought whistles up from my heart to my eyes:  we belong here, we are kindred, we are of the tribe - we are truly, fully Americans, and strangers no more. 

 

We belong.  And that makes all the difference.  

Just one more:

Scalia Arrested Trying to Burn Down Supreme Court

Waiting on the Supremes

Lambda Legal has published this quick-and-easy chart to explain the most likely possible rulings in the Prop 8 case, which deals with marriage in California. The chart also covers the separate case of United States v. Windsor, which addresses DOMA. Both rulings are expected to be issued before the Supreme Court takes its summer recess at the end of this month; but the legal and constitutional issues in both cases are complex, so there's really no way of predicting what the Court will say until they say it.



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Your Head Trucker has said before, and will say again, that he believes the Court will follow a cautious path and end up, whatever the legal justifications may turn out to be, restoring marriage equality to California only, and telling the federal government it has to recognize same-sex marriages wherever they are legal. And no more. I just don't see the Court legalizing gay marriage nationwide at this time. But we'll have to wait and see.

Popcorn and a Movie: Part II

Did you enjoy yourself at intermisson, guys?  Now that everyone's back in their seats, I'll continue with the discussion - which is as much to summarize and clarify what I know for my own benefit as for anyone else's.  Once again, I'm not a legal expert, just a highly interested observer of these things from afar.

(If you do want to hear a legal expert's opinion on these cases, read the excellent analysis by David Cole, Professor of Law at Georgetown University.  But he won't give you any popcorn or free movies, like me.)

Well, to pick up from Thursday's post, there are a number of ways the Supreme Court could decide the Prop 8 case, depending on which one can get at least five votes. Marty Lederman at SCOTUSblog analyzes at least seven possible rulings.

1. reversal on the merits, upholding Proposition 8 as being constitutional, not discriminatory against gays and lesbians;
2. dismissal of the Proposition 8 sponsors’ petition for lack of appellate standing (leaving the ruling of U.S. district judge Vaughn Walker intact and thus returning same-sex marriage to California immediately, if not sooner);
3. dismissal of the petition as improvidently granted by the Supreme Court – a “DIG” (same result as above); or
4. overturning of the court of appeals’ decision (which upheld what Judge Walker ruled) and sending the case back to the Ninth Circuit for reconsideration in light of whatever the Court does in Windsor, the DOMA case.

and three different ways of striking down Proposition 8, in line with Judge Walker's findings of fact that it does discriminate against gays and lesbians for no good reason:

1. a ruling that applies only to California;
2. a ruling that would guarantee same-sex marriage in the eight states that already offer all the benefits and other incidents of marriage (i.e., most civil unions and some domestic partnerships); or
3. a sweeping ruling that would provide a constitutional right to same-sex marriage nationwide.

After a good bit of argument and analysis, he sees the dismissal on standing grounds or an “eight-state” ruling on the merits as being the most likely outcomes.  He doesn't see a reversal on the merits, or a nationwide ruling, as being within the realm of possibilities for the Court at this time.  I'll leave it up to you guys to go read his analysis and see if you agree.

Many commentators I've read this week do seem to think that, having considered the cases back to back, the DOMA ruling will likely have a major effect on how the high court decides the Prop 8 case.  So let's turn to that now.

Continued after the jump . . .

United States v. Windsor: Arguments and Analysis

Edie Windsor arrives at the Supreme Court this morning,
accompanied by her attorney, Roberta Kaplan.

Here is the audio file of this morning's hearing on the DOMA case:

The transcript is here (PDF, 698 kb).

Analysis: 

1.  Lyle Denniston, SCOTUSblog reporter: "Argument Recap: DOMA is in Trouble."

2. Amy Howe, Editor of SCOTUSblog: "DOMA as a States' Rights Problem? Today's Oral Argument in Plain English."

3. Tom Goldstein, Publisher of SCOTUSblog: "The Relationship between DOMA and Proposition 8."

4. Jacob Combs, Equality on Trial: "Supreme Court Likely to Strike Down DOMA: Here's Why."

5. Jacob Combs, "An In-depth Look at Questions of Standing and Jurisdiction."

6. Jacob Combs, "An In-depth Look at Questions on the Law's Merits."

Opinion:

7. Ezra Klein, The Washington Post: "Sorry, Justice Scalia: There's no evidence that gays aren't great parents."

For findings of fact on this matter, see In re: Gill, which was beautifully decided by a Florida court, ending three decades of prohibition on gay adoptions (which was begun at the instigation of Anita Bryant's notorious anti-gay-rights campaign in the 70's).

8. Jeffrey Toobin, The New Yorker: "Why the Gay-Marriage Fight Is Over."

9. Amy Davidson, The New Yorker: "The Skim Milk in Edith Windsor's Marriage."

10. Victoria A. Brownworth, The Advocate: "The Bigotry Isn't Over."


And after leaving the courtroom this morning, Edie Windsor tells us the Magic Word:



What a sweetheart, huh fellas?  BTW, she's been selected as a Grand Marshall of the NYC Pride Parade this summer.

Update, 3:32 p.m., Texas time: Now fellas, I have just listened to the tape and read along in the transcript, all the way from start to finish, which took two solid hours. And though I'm not an attorney and claim no special legal insight, I was impressed by what I read and heard. Of course, this is not, and was never intended to be, a full, complete discussion on the merits of same-sex marriage; that's not what a Supreme Court appeal is all about. Usually, the Court is asked whether the lower court or courts decided an issue correctly - it's in the lower courts where all the multitudinous details are threshed out and argued over.

Continued after the jump . . .