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Bibliography of Windsor v. United States
- Case Timeline [PDF]
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Peter Applebome, Reveling in Her Supreme Court Moment, New York Times, Dec. 11, 2012, at A24, available at http://www.nytimes.com/2012/12/11/nyregion/edith-windsor-gay-widow-revels-in-supreme-court-fight.html.
Ms. [Edith] Windsor’s life changed, too, over time as gay issues evolved from the personal to the political. She was drafted to design and manage computer systems for gay groups; she became a financial donor and activist.
Samantha Aster, If Her Name Were Theo, There Would Be No Tax: Windsor v. United States, DOMA, and the Federal Tax Code, Modern American, Summer 2013, at 8.
In the end, the federal government used DOMA to unfairly tax Edith Windsor. She and millions of other married same-sex couples, widows, and widowers deserve to be treated in the manner the tax code intended.
Attorneys Representing Edith Windsor (Roberta A. Kaplan, James Esseks & Pamela Karlan), Media Availability Following Oral Arguments in the Case of United States v. Windsor (Defense of Marriage Act), CQ-Roll Call Political Transcriptions, Mar. 27, 2013.
Pamela Karlan: A few minutes ago we came out of the front door of the Supreme Court. Over that door is written the words, Equal Justice Under Law. That’s what we’re asking for here today. Equal justice under federal law for all of the legally married gay couples in the United States.
William Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stanford Law Review 1371 (2012), available at http://www.stanfordlawreview.org/sites/default/files/Baude-64-Stan-L-Rev-1371.pdf.
DOMA’s demise may in fact be an opportunity for creative destruction: the framework for solving the DOMA problem applies more broadly to all instances of federal laws that draw upon state law. Federal institutions can and should devise a set of choice-of-law rules, and what set of rules is proper will depend on which institution adopts them.
Before the Court in United States v. Windsor: The Justices Weigh in on the Defense of Marriage Act, Supreme Court Debates, May 2013, at 41.
Ms. [Roberta] Kaplan: And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of Federal law, you’re not taking it one step at a time, you’re not promoting caution, you’re putting a stop button on it, and you’re having discrimination for the first time in our country’s history against a class of married couples.
Jesse Birbach, Sam Jacobson & Jake Klonoski, Fighting DOMA: Veterans as Amici Curiae, Stanford Lawyer, Spring 2013, at 33, available at http://stanfordlawyer.law.stanford.edu/2013/06/fighting-doma-veterans-as-amici-curiae/.
The Stanford Law Veterans Organization planned and executed a focused campaign to secure high-ranking support from the national security establishment for an amicus brief laying out the numerous ways DOMA damages military readiness and denies simple equality to fellow servicemembers—in pay, housing, family care, survivor benefits, and basic respect.
Julie Bolcer, Fight of Her Life, Advocate, Oct. 2012, at 11, available at http://www.advocate.com/print-issue/current-issue/2012/09/10/fight-edith-windsors-life.
I think about the children of same-sex couples no longer having to defend the legitimacy of their families. I think about the beginning of the end of stigma and gay bashing, internalized homophobia and closets, and lying about who we are. I think about hope for our lives fully in the open in our country and society.
Jess Bravin, High Court Will Rule on Gay Marriage, Wall Street Journal, Dec. 8, 2012, at A1, available at http://online.wsj.com/article/SB10001424127887324640104578165363433361742.html.
“When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally,” said Ms. Windsor.
Jess Bravin, Historic Win for Gay Marriage, Wall Street Journal, June 27, 2013, at A1, available at http://online.wsj.com/article/SB10001424127887324520904578553500028771488.html.
In striking down DOMA, Justice Anthony Kennedy said Congress had no business undermining a state’s decision to extend “the recognition, dignity and protection” of marriage to same-sex couples. By excluding such couples from the rights and responsibilities of marriage contained in more than 1,000 provisions of federal law, “DOMA writes inequality into the entire United States Code,” Justice Kennedy wrote.
Brooke Donald, Stanford Students Play Role in Historic Same-Sex Marriage Case, Stanford Report (June 26, 2013), available at http://news.stanford.edu/news/2013/june/law-students-doma-062613.html.
Jeffrey Fisher called the four students who assisted in the research, briefing and oral argument preparation—Nico Martinez, Elizabeth Dooley, Bailey Heaps and Michael Baer—“instrumental in that effort.”
Jonathan Capehart, An evening with Edie Windsor and Roberta Kaplan, Washington Post Blog (July 22, 2013), available at http://www.washingtonpost.com/blogs/post-partisan/wp/2013/07/22/an-evening-with-edie-windsor-and-roberta-kaplan/.
The love affair and the marriage that Edie and Thea had is the kind of marriage that any of us, gay or straight or young or old, rich or poor, would be so lucky to have. Anyone in this country would be lucky to have a spouse like Edie Windsor.
Corey Ciocchetti, Teaching United States v. Windsor: The Defense of Marriage Act and Its Constitutional Implications (July 19, 2013), available at http://works.bepress.com/corey_ciocchetti/28/.
DOMA Section Three violates an individual’s liberty interest as protected in the Fifth Amendment’s Due Process Clause by treating similarly situated, legally married couples differently. This liberty interest is strengthened by the reverse incorporation of the Equal Protection Clause into the Fifth Amendment.
Paul D. Clement, Is Section 3 of the Defense of Marriage Act Unconstitutional? Cons, Supreme Court Debates, May 2013, at 31.
And when it comes to an issue as fast-moving and divisive as same-sex marriage, the political process has manifold advantages over constitutionalizing the issue. The political process requires advocates to persuade opponents, not label them bigots or dismiss their arguments as explicable only by animus.
Jen Colletta, Appeals Court Strikes Down DOMA in Favor of Philly Native, Philadelphia Gay News, Oct. 26-Nov. 1, 2012, at 1.
“This law violated the fundamental American principle of fairness that we all cherish,” Windsor said in a statement last week. “I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity.”
Michael Crowley, Watching Kennedy: The Court’s Swing Voter Offers Clues to a Gay-Marriage Ruling, Time (Mar. 27, 2013), available at http://swampland.time.com/2013/03/27/watching-kennedy-the-courts-swing-voter-offers-clues-to-a-gay-marriage-ruling/.
There are reasons why Justice Kennedy—who has supported gay rights in the past—might find striking down DOMA easier than striking down Proposition 8. Doing so would not make any same-sex couples immediately eligible to get married, which might limit his concern about “uncharted waters.”
DOMA Briefs in Supreme Court Join the Issue on Merits and Jurisdiction, Lesbian/Gay Law Notes, Mar. 2013, at 60.
Gay and lesbian people have suffered a significant history of discrimination in this country,” said DOJ. “No court to consider the question has concluded otherwise, and any other conclusion would be insupportable.”
Jim Dwyer, She Waited 40 Years to Marry, Then When Her Wife Died, the Tax Bill Came, New York Times, June 8, 2012, at A21, available at http://www.nytimes.com/2012/06/08/nyregion/woman-says-same-sex-marriage-bias-cost-her-over-500000.html.
For a long time, as Ms. Spyer’s health was in decline, her stepmother was also failing. As these things often do, it fell to Ms. Windsor to look after the care of her stepmother-in-law. The three women did not share a drop of blood between them, but formed a dome that could not be mistaken for anything but family life. Whatever the courts decide, the historical truth cannot be rewritten.
Kerry Eleveld, It’s All About Edie, Advocate.com (Mar. 21, 2013), available at http://www.advocate.com/politics/marriage-equality/2013/03/21/supreme-court-case-lawyer-says-its-all-about-edie.
When Windsor first approached her about taking the case, [Roberta] Kaplan, 46 and a partner at the firm Paul, Weiss, Rifkind, Wharton, and Garrison, found her life story so compelling that she made a split-second decision. “I’m known as a person who makes quick decisions, but this is probably one of the quickest decisions I’ve ever made,” Kaplan recalls.
Randee Fenner, At the Supreme Court: Boats and Marriage, Stanford Lawyer, Spring 2013, at 30, available at http://stanfordlawyer.law.stanford.edu/2013/06/at-the-supreme-court-boats-and-marriage/.
Following [Pamela] Karlan’s established philosophy, the students took the lead on brief drafting. “One of the best things about working with Pam,” says Nicholas Martinez, “is that she put the students first. She let us take the initial crack at everything.”
Adam Gabbatt, Edith Windsor and Thea Spyer: ‘A Love Affair That Just Kept On and On and On,’ The Guardian.com (June 26, 2013), available at http://www.theguardian.com/world/2013/jun/26/edith-windsor-thea-spyer-doma.
“I really believe in the Supreme Court. First of all, I’m the youngest in my family and justice matters a lot—the littlest one gets pushed around a lot. And I trust the supreme court, I trust the constitution—so I feel a certain confidence that we’ll win.” It turns out she was right.
Chris Geidner, Meet the Hero of the Marriage Equality Movement, BuzzFeed (Jan. 10, 2013), available at http://www.buzzfeed.com/chrisgeidner/meet-the-hero-of-the-marriage-equality-movement.
Edie is a perfect person to stand before the Supreme Court and the country with a powerful story and a beautiful smile, showing the massive injustice and unfairness of disrespecting the marriage and commitment she had with Thea and the wrong of denying a senior citizen important legal and economic protections that come with marriage.
Andrew Goldman, “I Used to Wish They Would Put on Clothes,” New York Times Magazine, May 5, 2013, at 12, available at http://www.nytimes.com/2013/05/05/magazine/edith-windsor-takes-back-what-she-said-about-topless-gay-activists.html.
That’s how everybody who’s not gay decides to support gay marriage. They discover that somebody they know and love is gay, and they say, “Oh, Jesus, I had no idea.”
Lucas Grindley, After Court Hearing, Edie Windsor Says “It’s Gonna Be Good,” Advocate.com (Mar. 27, 2013), available at http://www.advocate.com/politics/marriage-equality/2013/03/27/after-court-hearing-edie-windsor-says-its-gonna-be-good.
[Roberta] Kaplan praised Windsor as a hero to the LGBT rights movement. “There is no one individual who better personifies the concept of equal protection than my client Edith Windsor,” she said. “Our constitution deserves Edie Windsor and Edie Windsor deserves our Constitution.”
Tara Helfman, Gay Marriage, the Court, and Federalism: How the Justices Should Decide, Commentary, May 2013, at 18.
Striking down DOMA and leaving the recognition of gay marriage to the political process in the states is not just the federalist thing to do, it is the conservative thing to do.
Josh Hicks & Ruth Tam, IRS Shifts to Equal Tax Treatment for Same-Sex Marriages, Washington Post, Aug. 29, 2013, available at http://www.washingtonpost.com/politics/federal_government/irs-shifts-to-equal-tax-treatment-for-same-sex-marriages/2013/08/29/bbdffac4-10dc-11e3-85b6-d27422650fd5_story.html.
Edith Windsor, the plaintiff in the DOMA case, said in a statement, “Thanks to today’s ruling at the Treasury Department, no one will have to experience the pain and indignity that I went through ever again. I feel so proud and grateful to my country and to our president.”
Kenneth Jost, Gay Marriage: Will the Supreme Court End Curbs on Same-Sex Marriage?, 23 CQ Researcher 257 (Mar. 15, 2013), available at http://library.cqpress.com/cqresearcher/document.php?id=cqresrre2013031500#.Ujc2xZN6Y1I.
Windsor’s legal team, led by New York City attorney Roberta Kaplan along with lawyers from the American Civil Liberties Union (ACLU) and its New York affiliate, counter that DOMA serves no legitimate purpose whatever level of review the court applies.
Kenneth Jost, Gay Rights, CQ Researcher (June 28, 2013), available at http://library.cqpress.com/cqresearcher/document.php?id=cqr_ht_gay_rights_2013#.Ujc5SpN6Y1J.
The legal and legislative moves are being played out against the backdrop of rapidly changing public and political opinion on the issue. Polls now indicate that a majority of Americans favor recognizing marriage rights for same-sex couples.
Roberta Kaplan & Jaren Janghorbani, Proof vs. Prejudice, 37 N.Y.U. Review of Law & Social Change 143 (2013).
When the Supreme Court considers the constitutionality of discrimination against married same-sex couples, it will face a thorough, well-tested record supporting the invalidation of such laws. Evidence in support of the constitutionality of these laws is, as courts across the country have now found, scant at best.
Sarah Karlan, Edith Windsor and Thea Spyer’s Great American Love Story, BuzzFeed (Mar. 27, 2013), available at http://www.buzzfeed.com/skarlan/edith-windsor-and-thea-spyers-great-american-love-story.
Richard Kim, Why Gay Marriage Won, The Nation, July 22/29, 2013, at 3.
Gay marriage isn’t winning the day because of some singularly persuasive legal argument; it’s winning because the battleground has shifted from the court of law to the court of public opinion.
Ariel Levy, The Perfect Wife: How Edith Windsor Fell in Love, Got Married, and Won a Landmark Case for Gay Marriage, The New Yorker, Sept. 30, 2013, at 54.
When you’ve got an appealing litigant, it makes you want to side with them, Michael Klarman, a professor at Harvard Law School and a former clerk for Ruth Bader Ginsburg, said. Of course, you are deciding a case for a much broader group of litigants, so it ought to be irrelevant, but it’s not.
Adam Liptak, Surprising Friend of the Gay Rights Movement in the Highest of Places, New York Times, Sept. 2, 2013, at A10, available at http://www.nytimes.com/2013/09/02/us/surprising-friend-of-gay-rights-in-a-high-place.html.
What Earl Warren was to civil rights and what Ruth Bader Ginsburg was to women’s rights,” he said, “[Anthony] Kennedy is to gay rights.”
Adam Liptak, Justices Extend Benefits to Gay Couples; Allow Same-Sex Marriage in California, New York Times, June 27, 2013, at A1, available at http://www.nytimes.com/2013/06/27/us/politics/supreme-court-gay-marriage.html.
In the hushed courtroom Wednesday morning, Justice Anthony M. Kennedy announced the majority opinion striking down the federal law in a stately tone that indicated he was delivering a civil rights landmark.
Lower Court Holding in Windsor v. United States: Decision of the Second U.S. Circuit Court of Appeals, Supreme Court Debates, May 2013, at 21.
DOMA’s classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.
Michael W. McConnell, The Constitution and Same Sex Marriage, Wall Street Journal, at A15, March 22, 2013, available at http://online.wsj.com/article/SB10001424127887324281004578354300151597848.html.
But when all of us have an equal right to be heard on an issue, and to participate through our representatives in making the decision, it is easier to accept the outcome than when unelected judges make moral pronouncements from the bench. Change that comes through the political process has greater democratic legitimacy.
Douglas NeJaime, Windsor’s Right to Marry, 123 Yale Law Journal Online 219 (Sept. 15, 2013), available at http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/constitutional-law/windsor%E2%80%99s-right-to-marry/.
We can relate Windsor to two important phases of LGBT advocacy. First, advocates leveraged the private welfare function of marriage, focusing on emotional and economic interdependence, to make the case for domestic partnership beginning in the early 1980s. Second, advocates more recently drew on the public recognition function of marriage, stressing marriage’s unique dignitary and expressive dimensions, to challenge domestic partnership (and other nonmarital statuses).
Larry Neumeister, NY Judge: Anti-Gay Marriage Law Unconstitutional, Between the Lines, June 14, 2012, at 16.
“It’s thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers,” Windsor said of her 44-year relationship with Thea Spyer.
Out.com Editors, Out 100 Readers’ Choice Award Nomination: Roberta Kaplan, Out, Sept. 10, 2013, available at http://www.out.com/out100/2013/09/10/out100-readers-choice-award-nomination-roberta-kaplan.
It took 16 days for [Roberta] Kaplan to write the brief for the Defense of Marriage Act case that went before the Supreme Court this year, and Roberta Kaplan said she drew inspiration from a single Post-it note she affixed to her computer: “It’s all about Edie, stupid.”
Jeremy W. Peters, Plaintiff, 83, Is Calm Center in a Legal and Political Storm, New York Times, Mar. 28, 2013, at A19, available at http://www.nytimes.com/2013/03/28/us/politics/edith-windsor-calm-center-of-same-sex-marriage-case.html.
“Hi. I’m Edie Windsor, and somebody wrote me a large speech which I’m not going to make,” she said, clutching a white sheaf of paper with large-type writing on it. “I am today an out lesbian, O.K., who just sued the United States of America, which is kind of overwhelming for me.”
The Same-Sex Marriage Cases: Deep Dive, Oyez.org, available at http://www.oyez.org/ssm/ (last visited Sept. 16, 2013).
Jane Schacter, Marriage Rights SCOTUS Resolved Some, But Not All, Issues, Los Angeles Times, June 27, 2013, at A19, available at http://articles.latimes.com/2013/jun/27/opinion/la-oe-schacter-scotus-marriage-rulings-20130627.
Justice Anthony M. Kennedy’s decision in Windsor vs. United States, which struck down a key portion of the federal Defense of Marriage Act—will be celebrated for its ringing endorsement of the equality and dignity of same-sex couples.
Elizabeth Schlain Windsor & Roberta A. Kaplan, Is Section 3 of the Defense of Marriage Act Unconstitutional? Pros, Supreme Court Debates, May 2013, at 31.
DOMA was anything but a cautious legislative step. Instead, in a rush to respond to a perceived problem of gay couples marrying in Hawaii, DOMA abandoned the uniform historic Federal practice of deferring to the States in terms of marital status. Indeed, DOMA today operates not to defend marriage for straight people, but only to undermine the institution of marriage as it now exists where gay couples are allowed to marry.
John Schwartz, Between the Lines of the Defense of Marriage Act Opinion, New York Times (June 26, 2013), available at http://www.nytimes.com/interactive/2013/06/26/us/annotated-supreme-court-decision-on-doma.html.
Justice Anthony M. Kennedy, writing the majority opinion and joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, framed the question as one of basic fairness and human dignity.
Sheryl Gay Stolberg, In Fight for Marriage Rights, ‘She’s Our Thurgood Marshall,’ New York Times, Mar. 28. 2013, at A19, available at http://www.nytimes.com/2013/03/28/us/maine-lawyer-credited-in-fight-for-gay-marriage.html.
“Ms. Bonauto is a quiet celebrity—a lawyer and mother of twins who some say is almost single-handedly responsible for the same-sex marriage cases now pending before the Supreme Court. No gay person in this country would be married without Mary Bonauto,” said Roberta Kaplan.
Jeffrey Toobin, Adieu, DOMA!, New Yorker, July 8, 2013, at 27, available at http://www.newyorker.com/talk/comment/2013/07/08/130708taco_talk_toobin.
Judicial restraint is not Kennedy’s style. He was the only Justice to vote to overturn both DOMA and the key provision of the Voting Rights Act, even though Congress had passed them with overwhelming support. Characteristically, too, Kennedy was the only Justice to be on the winning side in both cases.
Nina Totenberg, Meet The 83-Year-Old Taking On The U.S. Over Same-Sex Marriage, NPR (Mar. 21, 2013), available at http://www.npr.org/2013/03/21/174944430/meet-the-83-year-old-taking-on-the-u-s-over-same-sex-marriage.
“The fact is, marriage is this magic thing,” Edie says. “I mean 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, and it meant a difference in feeling the next day.”
Ryan Tracy, Widow Behind Government Suit Gets Her Day in Court, Wall Street Journal, Mar. 28, 2013, at A4, available at http://online.wsj.com/article/SB10001424127887323361804578386810189031692.html.
“At some point, somebody came out and said ‘I’m gay,’ which gave a couple more people the guts to do it,” Ms. Windsor said. “As we increasingly came out, people saw that we didn’t have horns. People learned that we were their kids and their cousins and their friends.”
John Paul Young, DOMA’s Definition of Marriage Struck Down in NY Fed. Ct., Lesbian/Gay Law Notes, Summer 2012, at 195.
The federal government has no legitimate interest in a particular kind of marriage to justify violating the basic principle of federalism of interfering with unequal effect in matters of historic state control, Judge Jones held.