Edith Windsor dies

The Washington Post - - FRONT PAGE - BY EMILY LANGER

She was the plain­tiff in a land­mark case ad­vanc­ing same-sex mar­riage.

Decades af­ter the fact, the diminu­tive self-de­scribed “old lady” joy­fully re­called the day in 1967 when the love of her life dropped to the ground and asked, “Edie Windsor, will you marry me?”

Her sweet­heart pre­sented her with a round di­a­mond brooch. A ring would have raised too many sus­pi­cions. Her lover, Thea Spyer, was a woman, and in 1967 the no­tion of same-sex mar­riage seemed closer to fan­tasy than to the most re­mote re­al­ity.

Their en­gage­ment would last 40 years, un­til 2007, when the two New York­ers were of­fi­cially mar­ried in Canada. By that time, Spyer, then 75, was par­a­lyzed from mul­ti­ple sclero­sis. Ms. Windsor, a re­tired high-rank­ing IBM com­puter pro­gram­mer, was 77. Spyer had not much time to live, and they de­cided they could not wait on the United States to wed.

When Spyer died in 2009 and left her as­sets to Ms. Windsor, the es­tate owed $363,053 in fed­eral es­tate taxes — an amount far greater than a sur­viv­ing het­ero­sex­ual hus­band or wife would have paid be­cause of ex­emp­tions for legally rec­og­nized spouses.

Ms. Windsor sued the United States for a re­fund. Her law­suit re­sulted in the land­mark U.S. Supreme Court rul­ing in 2013 that in­val­i­dated a por­tion of the 1996 De­fense of Mar­riage Act, which had de­fined mar­riage for fed­eral pur­poses as a union be­tween a man and a woman. That rul­ing was fol­lowed by an even more sweep­ing Supreme Court de­ci­sion in 2015 declar­ing same-sex mar­riage a con­sti­tu­tional right.

Ms. Windsor, cel­e­brated as a hero­ine among ad­vo­cates for gay rights, died Sept. 12 in Man­hat­tan. She was 88. Her lawyer, Roberta Kaplan, con­firmed the death but did not cite a cause.

“If I had to sur­vive Thea,” Ms. Windsor said when the court is­sued its 2013 rul­ing, “what a glo­ri­ous way to do it.”

Edith Sch­lain was born on June 20, 1929, to Rus­sian Jewish im­mi­grants in Philadel­phia. Her fa­ther ran a candy store and ice cream par­lor that went bust dur­ing the De­pres­sion.

“Edie,” as she was known, would re­call that she felt at­tracted to women from a young age but feared re­veal­ing her­self as “queer.”

Af­ter re­ceiv­ing a bach­e­lor’s de­gree from Tem­ple Univer­sity in 1950, she mar­ried her brother’s friend Saul Windsor, whose sur­name she kept through­out her life. But the mar­riage, inevitably and ir­re­me­di­a­bly, was un­happy.

“I told him the truth,” Ms. Windsor later re­called to NPR. “I said, ‘ Honey, you de­serve a lot more. You de­serve some­body who thinks you’re the best be­cause you are. And I need some­thing else.’ ”

They were di­vorced af­ter less than a year.

Ms. Windsor moved to New York, she said, to “let my­self be gay.” But even there, where she re­ceived a mas­ter’s de­gree in math­e­mat­ics from New York Univer­sity in 1957, she did not feel com­fort­able ex­press­ing her sex­u­al­ity. When IBM col­leagues of­fered to set her up, she told the New York Times, she would re­ply that she was “see­ing some­body.”

Dur­ing an evening at a gayfriendly res­tau­rant in 1963, she met Spyer, a psy­chol­o­gist who also was Jewish and whose fam­ily had fled the Nether­lands be­fore the Holo­caust. The two women “danced a hole through the bot­tom of one” of Ms. Windsor’s stock­ings, as she later put it.

When they be­came an item, Ms. Windsor re­called telling Spyer that if af­ter a year “it still feels this goofy joy­ous, I’d like us to spend the rest of our lives to­gether.”

Spyer de­vel­oped mul­ti­ple sclero­sis in 1977. Ms. Windsor cared for her as Spyer lost the use of her limbs, be­com­ing a quad­ri­plegic. The two women re­fused to give up danc­ing, their fa­vorite pas­time; Ms. Windsor sim­ply sat with Spyer in her wheelchair and let Spyer lead them across the floor, as she had al­ways done.

Ms. Windsor wrote in her af­fi­davit that “our choice not to wear tra­di­tional en­gage­ment rings was just one of many ways in which Thea and I had to mold our lives to make our re­la­tion­ship in­vis­i­ble.” Her tax bill on Spyer’s death — which she would not have re­ceived, she noted, if Thea had been a Theo — was a par­tic­u­larly griev­ous fi­nal in­sult.

Years ear­lier, Ms. Windsor had ven­tured into the gay rights move­ment, of­fer­ing fi­nan­cial sup­port and vol­un­teer­ing her ser­vices as a com­puter pro­gram­mer. She con­fessed to the Times that she had long been dis­com­fited by overtly gay men be­fore the Stonewall ri­ots of 1969 helped show her the im­por­tance of protest.

But when she strode to the spot­light with her law­suit, she told the New Yorker mag­a­zine, she suf­fered a moment of panic when she saw the words Edith Windsor v. the United States of Amer­ica on a fil­ing.

Even be­fore the Supreme Court is­sued its rul­ing in her case, the Obama ad­min­is­tra­tion de­cided to no longer de­fend DOMA. But the de­ci­sion in­val­i­dat­ing DOMA — a law signed by Pres­i­dent Bill Clin­ton that was re­viled by pro­gres­sives and cel­e­brated by con­ser­va­tives who con­sider mar­riage a sa­cred in­sti­tu­tion be­tween one man and one woman — proved a turn­ing point.

Writ­ing the ma­jor­ity opin­ion in the 5-to-4 rul­ing, Justice An­thony M. Kennedy de­scribed DOMA as a vi­o­la­tion of due process as well as the right of states to reg­u­late mar­riage.

“The fed­eral statute is in­valid, for no le­git­i­mate pur­pose over­comes the pur­pose and ef­fect to dis­par­age and to in­jure those whom the State, by its mar­riage laws, sought to pro­tect in per­son­hood and dig­nity,” Kennedy wrote. “By seek­ing to dis­place this pro­tec­tion and treat­ing those per­sons as liv­ing in mar­riages less re­spected than oth­ers, the fed­eral statute is in vi­o­la­tion of the Fifth Amend­ment.”

Justice An­tonin Scalia, who died in 2016, wrote a scathing dis­sent­ing opin­ion in which he ac­cused the ma­jor­ity of pre­sent­ing a story that was “black-and­white: Hate your neigh­bor or come along with us.”

“A re­minder that dis­agree­ment over some­thing so fun­da­men­tal as mar­riage can still be po­lit­i­cally le­git­i­mate would have been a fit task for what in ear­lier times was called the ju­di­cial tem­per­a­ment,” Scalia wrote.

“We might have let the Peo­ple de­cide,” he con­tin­ued. “But that the ma­jor­ity will not do. Some will re­joice in to­day’s de­ci­sion, and some will de­spair at it; that is the na­ture of a con­tro­versy that mat­ters so much to so many. But the Court has cheated both sides, rob­bing the win­ners of an hon­est vic­tory, and the losers of the peace that comes from a fair de­feat.”

The rul­ing ex­tend­ing tax and other fed­eral ben­e­fits to gay cou­ples ap­plied only to the 13 states that rec­og­nized same-sex mar­riage, as well as to the Dis­trict of Columbia. The 2015 rul­ing, also de­cided by a 5-to-4 vote, le­gal­ized same-sex mar­riage na­tion­wide.

“The fact is, mar­riage is this magic thing,” Ms. Windsor told NPR. “For­get all the fi­nan­cial stuff — mar­riage . . . sym­bol­izes com­mit­ment and love like noth­ing else in the world. And it’s known all over the world. I mean, wher­ever you go, if you’re mar­ried, that means some­thing to peo­ple.”

In 2016, Ms. Windsor mar­ried again, at age 87, to Ju­dith Kasen, then 51, a vice pres­i­dent with Wells Fargo Ad­vi­sors, who was her only im­me­di­ate sur­vivor. Ms. Windsor told the New Yorker that she had wished for chil­dren “des­per­ately — that was the hard­est thing about let­ting my­self be gay.”

As for the right to marry, although it once might have seemed im­pos­si­ble, Ms. Windsor said, “the truth is, I never ex­pected any less from my coun­try.”

JONATHAN ERNST/REUTERS

Edith Windsor greets a crowd out­side the U.S. Supreme Court af­ter ar­gu­ments in her case against the De­fense of Mar­riage Act in March 2013. The jus­tices ruled 5 to 4 in her fa­vor.

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