Edie Windsor, the spunky New Yorker whose victorious court case threw out a key provision of the Defense of Marriage Act and recognizes legally married same-sex couples with all of the rights and benefits that legal marriages accord, was robbed last week when the country's leading gay newsmagazine, the Advocate, decided to follow in Time magazine's footsteps and bestow its Person of the Year honors on a straight man, Pope Francis. While one can certainly acknowledge that in his first months leading the Catholic Church Francis has shifted the church's anti-gay tone, this media savvy leader has not changed church doctrine, nor is it likely that he will. Actions speak louder than words and although Francis's words differ from the homophobic rants of his predecessors, they are still just that: comments that hint at more acceptance without actually implementing change in church policies to bring about that acceptance.
The Advocate missed the boat on this one.
Windsor, 84, who climbed the corporate ladder at IBM and was long involved in grassroots gay rights issues, had the determination to sue the federal government after the death of her spouse, Thea Spyer. The couple had married in Canada in 2007 (although they had been together for more than 40 years) and after Spyer's death, the U.S. government demanded that Windsor pay $363,000 in estate taxes because the feds didn't recognize their marriage as valid.
"If Thea was Theo," she told NPR earlier this year, "I would not have had to pay" those taxes. "It's heartbreaking," she added. "It's just a terrible injustice, and I don't expect that from my country. I think it's a mistake that has to get corrected."
Windsor sued in 2010 with the assistance of the American Civil Liberties Union and attorney Roberta Kaplan of Paul, Weiss, Rifkind, Wharton, and Garrison. The Windsor v. U.S. case was one of several challenging DOMA and, last December, the U.S. Supreme Court announced it would hear the case. (The court also took California's Proposition 8 case, Hollingsworth v. Perry, and ruled that since the proponents lacked standing the lower court ruling that declared the same-sex marriage ban unconstitutional stood, allowing same-sex weddings to resume here.) Like the plaintiffs in the Prop 8 case, Windsor did not wait for the law to be repealed, and like them, she was frustrated at the pace of the LGBT legal establishment – some of the organizations she approached told her it was the "wrong time." She spent the next three years working with her legal team and bolstering her case by telling her story, garnering press attention that focused on the discriminatory law. Even in states where same-sex marriage was allowed, those couples still lacked federal rights and benefits. Same-sex binational couples were also in a bind; because of DOMA they could not sponsor their foreign-born partner. Meanwhile, in Congress, action on bills to repeal DOMA and allow same-sex couples equal status in immigration matters were hopelessly stalled.
In June when the U.S. Supreme Court struck down Section 3 of DOMA, the floodgates opened. Suddenly, same-sex couples who were legally married were granted federal benefits. Federal agencies had to quickly revise their policies to adhere to the law. Same-sex binational couples were some of the first to benefit, as immigration officials issued green cards to some couples within weeks of the decision. Military bases had to conform to the law. The Social Security Administration had to conform. And on and on. Just this week, the Treasury Department and the Internal Revenue Service announced new rules for health savings accounts and other plans that could benefit same-sex couples.
Even with the restoration of marriage in California, many couples who have tied the knot here in recent months did so not because the state allows it, but because they will receive the federal benefits due to the Windsor decision. Some chose not to marry during the brief window in 2008 because DOMA was still in place. That fact is brought up over and over, from the wedding announcements we have published to interviews with same-sex couples. So while the Prop 8 ruling was fantastic, the ruling that truly brought about change for same-sex married couples was the one issued in the DOMA case, the case brought by Edie Windsor.
The twin court decisions – Windsor and Hollingsworth – were groundbreaking in a year that saw more states legalize same-sex marriage – and those victories can also be traced to the fact that the federal law was struck down. In short, the path to marriage equality now goes through the Windsor case.
Windsor ended up being a runner-up in the Time nominating process, just behind whistleblower Edward Snowden, whose leaks of National Security Agency information have sparked a global debate on surveillance and national security. If the Advocate couldn't bring itself to name Windsor its Person of the Year, it should have gone with reporter Glenn Greenwald, who broke the Snowden story. At least he's gay.