Edith Windsor: “The Grande Dame of Gay Rights”
Day 26 of the Pride 30 Project for Pride Month, 2018.
When Edith “Edie” Windsor married her older brother’s best friend — a strong, sweet, handsome man — she knew he would be the love of her life — if only she were straight. Married in 1951, she was divorced less than a year later. Windsor was raised in Philadelphia and attended Temple University. Following her divorce, at the age of twenty-three, she moved to Greenwich Village to attend NYU for her Master’s degree in mathematics and take computing classes. She was hired by IBM in 1958, and worked her way up to senior systems programmer, a ranking few employees, let alone women during the 1950s, attained. Though she was closeted at work, Windsor began frequenting Greenwich Village’s gay bars and an upscale restaurant called the Portofino, located on Thompson Street in the Village, where she heard lesbians hung out on Friday nights.
It was there she met Thea Spyer, a handsome graduate student in Psychology who was born in Amsterdam to a wealthy Jewish family. The two began dancing whenever they saw one another out, but it was two years before they formally began dating. Though children and marriage were unthinkable for gay couples in the 1960s, Spyer proposed in 1967. Because an engagement ring would raise questions for Windsor at work, though she fit in with her IBM colleagues well, Spyer instead gave her a circular diamond brooch that Windsor wore pinned to her lapel for the remainder of her life. To explain Spyer’s calls to the office, Windsor invented a relationship with Spyer’s fictional brother, Willy. Willy was, in fact, the name of Spyer’s childhood doll.
Ironically, the couple returned home from a vacation abroad the night of the 1969 Stonewall Inn Riots. Like many gays and lesbians, in the post-Stonewall years Windsor and Spyer participated openly in gay rights organizations and demonstrations. When Windsor left IBM in 1975, after sixteen years, to start her own consulting firm, she leant her talents to helping emerging gay organizations become technology literate.
Decades later, in the early 1990s, as gay rights became more mainstream, three gay Hawaiian couples sued the state for the right to marry. In 1993, the Hawaii Supreme Court ruled that, if marriage licenses were to be denied to gay couples, the state would have to develop a compelling rationale as to why doing so was in the best interest of the state, and defend that rationale before a trial court. Hawaii’s Supreme Court ruling made Republicans in Congress nervous, but also energized. Though Democrat Bill Clinton was in the White House, Congressional Democrats lost big during the 1994 midterm elections, with Republicans claiming both chambers. Conservative politicians had long used homosexuality to motivate and mobilize their core constituencies, and now was no different. In response to Hawaii’s ruling, the Republican-controlled House Judiciary Committee proposed the Defense of Marriage Act, or, DOMA.
DOMA defined marriage, for federal purposes, as a union between one man and one woman. This definition was based on the notion that the defining characteristic of marriage was “begetting,” or, biological reproduction possible only within a heterosexual union. Homosexual unions, argued Republicans, would erode not only the institution of marriage, but the fabric of American society as a whole. In anticipation that more liberal states would soon legalize same-gender marriage, DOMA also allowed states to refuse recognition to same-gender marriages granted by the laws of other states. Bill Clinton signed DOMA into law on September 21st of 1996. Gay relationships were apparently so destructive that the government needed to protect the American people against them.
Though Clinton had campaigned for president as an ally to the gay community — promising to direct funding to HIV/AIDS prevention and research and overturning the ban on gays in the armed services — his intentions were largely circumscribed by the limitations of the presidency and a Republican party angered by their loss of the White House. Clinton, who was up for re-election in 1996, ultimately signed DOMA to mitigate further attacks from the right.
In the 2000 presidential election, Republicans reclaimed the White House. Though the Vermont legislature voted to establish civil unions for gay and lesbian couples in 1999 following a lawsuit brought by Gay and Lesbian Advocates and Defenders (GLAD), Massachusetts, in 2003, became the first state to legalize same-gender marriage in Goodridge v. Department of Public Health. A positive step in the marriage equality movement became fodder for George W. Bush’s 2004 reelection campaign. Bush, seeing DOMA as vulnerable due to the Massachusetts victory, called on Congress to pass a constitutional amendment restricting marriage to heterosexual unions. Bush’s attack on gay marriage proved energizing to his base, particularly his Evangelical Christian supporters, and he was successfully re-elected to a second term.
On February 12th of that year, San Francisco’s handsome and progressive Mayor, Gavin Newsom, defiantly instructed the city clerk to begin issuing marriage licenses to same-gender couples. The marriage licenses that were issued, however, were nullified on August 12th of 2004 when the California Supreme Court ruled that Newsom did not have the authority to bypass state law. The decision was later reversed on June 16th of 2008 when the California Supreme Court, in In re Marriage Cases, ruled that denying same-gender couples the right to marry violated the Equal Protection Clause of the California State Constitution. In 2008, opponents to same-gender marriage devised the ballot initiative Proposition 8, which proposed to amend the state constitution to specify that “only marriage between a man and a woman is valid or recognized in California.”
Though then presidential candidate Barack Obama would come to support gay marriage, his opinions on marriage during the 2008 presidential race helped to fuel the passage of Prop 8. In an interview with CNN, candidate Obama, when asked to define marriage, said it was “a union between a man and a woman.” Though he did not characterize himself as a proponent of same-sex marriage, Obama explained, he did think gay couples should be able to enter into civil unions. Furthermore, in his view, no constitutional amendment was needed to define marriage, which should be a matter of state law. Despite his moderate stance on same-gender marriage, supporters of Prop 8 seized on Obama’s definition of marriage as “a union between a man and a woman,” integrating this sound bite into their advertising leading up to election day. Prop 8 passed with 52% of the votes in the November 2008 elections, but was ultimately ruled unconstitutional by a federal court in 2010.
Spyer had been diagnosed with chronic progressive multiple sclerosis in 1977 at the age of forty-five. She continued to see clients in her home office, and as she became increasingly disabled, Windsor became her caretaker. They continued to travel as they always had, but when Spyer was confined to a wheelchair the thought of no longer being able to dance with her partner brought her to tears. In an approximation of the dances of their youth in the lesbian bars of Greenwich Village, Windsor would sit in Spyer’s lap as she tooled across the dance floor in her motorized wheelchair.
The couple was lawfully married in Toronto, Canada on May 22nd of 2007 — no easy feat because, by then, Spyer was almost entirely paralyzed from the neck down. When Spyer died on February 5th of 2009, she left her entire estate to Windsor. Devastated by her loss, Windsor suffered several heart attacks: one small, one major. Upon discovering she owed the state of New York and the federal government nearly a half-million dollars in estate taxes — which she would be exempt from paying had she been married to a man — Windsor felt like she was being taxed for being gay. Section 3 of DOMA specified the term “spouse” only applied to marriages between a man and a woman; therefore, she did not qualify for the federal tax exemption for surviving spouses.
Windsor decided to sue. She first contacted Lambda Legal, but they did not seem particularly interested in taking her case. The divisions within the marriage equality movement of the 1990s persisted in the twenty-first century. Some advocates argued marriage should be fought for strategically — with the right case at the right time — while others thought the denial of same-gender marriage should be vigorously challenged at every turn. Other, more radical, segments of the LGBTQ Rights Movement argued that marriage was an inherently oppressive institution that primarily benefited the most privileged members of the community: white middle-to-upper-class lesbians and gays. Lambda Legal would not even return Windsor’s phone calls.
Attorney Roberta “Robbie” Kaplan, whom Windsor was referred to, was willing to take on the case pro bono. “When I heard her story, it took me about five seconds, maybe less, to agree to represent her,” Kaplan said. A Columbia-educated lawyer, Kaplan unsuccessfully sued New York State on behalf of gay couples seeking the right to marry in 2006. Fearing that Windsor’s case might be perceived as usurping the mainstream Gay Rights Movement, Kaplan asked James Esseks, director of the ACLU’s LGBT & AIDS Project and a well-established lawyer within the movement, to be her co-counsel.
The United States Supreme Court heard arguments in United States v. Windsor in March of 2013, and on June 26th, issued a 5–4 ruling in Windsor’s favor. The court ruled that Section 3 of DOMA was unconstitutional under the Due Process Clause of the Fifth Amendment, which safeguards, in part, against arbitrary denials of property by the government. DOMA was weakened, and the movement was one step closer to full marriage equality. Windsor was in New York with Kaplan when the decision was handed down, and she wanted to go to the most logical place to celebrate her, and her community’s, victory: Stonewall. There she addressed a crowd of her supporters while trying not to burst into tears.
The Supreme Court’s subsequent 2015 ruling in Obergefell v. Hodges overturned remaining state and federal laws prohibiting same-gender marriage. When James Obergefell’s partner, John Arthur, was diagnosed with ALS, the couple raised funds so they could take a medical plane to Maryland because they could not be legally wed in their home state of Ohio. They were married on a Maryland tarmac, and just three months later, Arthur died. When the state of Ohio refused to list Obergefell as Arthur’s spouse on his death certificate, he sued. The Supreme Court ultimately ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
By the time United States v. Windsor was decided, President Barack Obama had come a long way on his views on gay marriage, in large part because LGBTQ activists had pushed him, and his administration, to address their issues. “At a certain point, I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married,” the President said in an interview with ABC’s Robin Roberts. “I had hesitated on gay marriage in part because I thought civil unions would be sufficient… I was sensitive to the fact that for a lot of people, the word ‘marriage’ was something that invokes very powerful traditions and religious beliefs.” The President also cited his daughters, Sasha and Malia, as key to changing his views.
Shortly after SCOTUS issued their ruling, the phone rang in Robbie Kaplan’s apartment. She answered, and then passed the receiver to Windsor. It was Barack Obama, calling to congratulate Windsor and to thank her for her fight to make America, in the spirit of its founding, a more perfect union. “I want to thank you,” Windsor told him. “I think you coming out for us made such a difference throughout the country.”
In 2012, Vice President Joe Biden had said he was “absolutely comfortable” with gay marriage, before Obama, in fact, professed similar sentiments. Biden named the NBC sitcom Will & Grace, which originally debuted in 1998, as key to shaping his views on the issue. What the Vice President did not acknowledge, however, was the decades of activism it took to get a show like Will & Grace on a mainstream television network. This activism also laid the groundwork for Windsor’s battle just as she, in turn, built a foundation for younger LGBTQ people to stand upon, and to draw strength from, as they fought the battles of their generation. For these reasons, the writer Ariel Levy called Windsor “the grande dame of gay rights.”
“If you have to outlive a great love,” Windsor said, “I can’t think of a better way to do it than being everybody’s hero.”
