September 29, 2013

"How Edith Windsor fell in love, got married, and won a landmark case for gay marriage."

A great article by Ariel Levy. Worth subscribing to The New Yorker to get access. I had The New Yorker in audio podcast form, and this article inspired me to subscribe to the print edition. It begins:
"Fuck the Supreme Court!” Edith Windsor said, one hideously hot morning in June, when she’d had just about enough. Then she sighed and mumbled, “Oh, I don’t mean that.” What she really meant was that she was hot, she was tired of waiting, and, most of all, she was tired of being told what to do. “I’m feeling very manhandled!” she said.

It was Windsor’s eighty-fourth birthday, and she was spending it staring at a laptop screen as information from scotusblog.com flashed by in a typeface too small for her to read comfortably. Four years earlier, Windsor’s partner of more than forty years, Thea Spyer, died, leaving Windsor her sole heir. The two were legally married in Canada, in 2007, but, because of the Defense of Marriage Act, Windsor was not eligible for the exemption on estate tax that applies to husbands and wives. She had to pay $363,053 in taxes to the federal government, and $275,528 to New York State, and she did not think that was fair.
There's some excellent material about lawyering, including getting the right plaintiff as the face of the issue. One "experienced movement attorney" explains that "Women are better than men" and "post-sexual is better than young." Windsor was not just female and presumably "aged out of carnality," but, we're told, didn't "look gay."
Her pink lipstick and pearls would make it easier, [her lawyer Roberta] Kaplan knew, for people across the country to feel that they understood her, that she embodied values they could relate to.
Some movement lawyer types thought Windsor was the wrong plaintiff because she was too rich, and her legal problem was a problem of a rich person. Who owes $600,000 in taxes? What kind of civil rights movement forefronts suffering of that kind?
"There were these calls," Kaplan said. "These people from Lambda were like, 'We really think that bankruptcy is the perfect venue to challenge DOMA,' because they had a bankruptcy case they wanted to bring. Finally, I couldn't stand it. I said, 'Really?  I don't want to be disrespectful or classist, but do you really think that people who couldn't pay their personal debts are the best people to bring the claim?"...

Kaplan was convinced that Americans dislike taxes even more than they dislike the rich...

27 comments:

iowan2 said...

The matter that always struck me about the outrage of this couple, that they needed a way to avoid the taxes the government was owed.
What struck me, the outrage was about the definition of marriage. NOT that the govt declared ownership of personal property and the government decided how much of your personal property you get to keep,at any juncture of your life.

Yes, yes I know that exemptions are granted to married couple. Why? Because the exemption was carved out because the wife was not in the labor market because of child rearing, thus not having the ability to amass property. That is why the exemption is there....for marriage.

The story is a good example of the noise generated in the debate of little consequence and the ignoring of the larger issue of govt power run amok. The govt ignoring a founding principle of private citizens right of property.

Titus said...

When I was watching the case I, as a gay, thought she was the perfect gay plantiff.

She was extremely attractive and knew how to dress and do her makeup. She didn't look gay which was a huge plus and she was a she not a he.

Ann Althouse said...

"She was extremely attractive and knew how to dress and do her makeup. She didn't look gay which was a huge plus and she was a she not a he."

Notice that the idea there is about getting Americans who might be averse to homosexuality to be empathetic, to identify with her.

This is using a stereotype about ordinary people, which may or may not be true, but these stereotypes are being massaged into abandoning their stereotypes about gay people.

Windsor was used for good press for a general issue which has to do with rights that will be useful to lots of people who aren't so pretty and aren't so sympathetic.

Windsor's spouse was dead, so the two weren't having sex anymore. And they'd been together for decades, including many years in which the now-dead spouse was quite disabled and Windsor took care of her.

I'm saying Windsor's "spouse" and not "wife" because Windsor strongly objected to calling Spyer her "wife." Windsor was the wife, and she makes a big deal about that. She's not the sweet little old lady that was presented for the empathy of ordinary American stereotypes.

That's why the first word of the article is "Fuck," exclaimed by Windsor.

Ann Althouse said...

The article makes the analogy to Rosa Parks, who was used as the face of the issue after rejecting another person... a teenaged girl who was not sufficiently sympathetic in the view of the lawyers.

somefeller said...

Finally, I couldn't stand it. I said, 'Really? I don't want to be disrespectful or classist, but do you really think that people who couldn't pay their personal debts are the best people to bring the claim?"...Kaplan was convinced that Americans dislike taxes even more than they dislike the rich...

And this is yet another example of how and why libertarianism is more popular among thinking people than social conservatism and why activist liberals are often clueless in being able to acknowledge its appeal, much less respond to it.

Titus said...

I have heard her interviewed many times after the case.

And she was definitely not someone I would call sweet little old lady. She was tough and edgy.

EDH said...

If they made a reality TV show about this story it could be called Dyke Dynasty.

No "beards" allowed, however.

Renee said...

Most people have issue with the inheritance tax, but why just legal couples should the exemption be applied to and not siblings was the conversation years ago?

I completely agree and sympathetic.

If taxes are something that most people want to avoid, can I note as a matter of public policy that there is a real cost to the breakdown of the family then?

Just within one city...

"Family breakdown and the absence of fathers in the household in the City of Richmond costs taxpayers at the federal, state and local levels a mind-boggling $205 million a year, according to a new report issued by the Richmond Family & Fatherhood Initiative. The study bases that figure on the assumption that a “minimum” of one-third of all antipoverty program costs stem from family fragmentation, a mechanism that is “reasonably well quantified in the literature.”"

Again just one city, in which I'm not asking or seeking mandatory shot-gun weddings. For example if there is a community with only 30% of the homes that have both a mom and dad in them, let's set a goal of 60% for the community within a decade or two.

Breakdown didn't happen overnight, this took some time. The problem is that culturally people have little to no interest on the issue. The problem of fatherless and it's real effects will never be featured on Buzzfeed, where most people get their news. You can't make a good internet meme on this problem.

Recently NPR did a report on how the Foster Care system is impacted in California due to family breakdown. It isn't just as much as needing more families to be foster parents, but the real intervention has to be prevention before there is a report.

Why is it that people are more interested in Cory Booker's private life, then his actual political accomplishments with Fatherhood Programs in Newark that reduces re-entry into prisons and encourages relationships with father & children, and whenever possible also with their mothers?

The concept of marriage existed prior to the IRS. And troubles with what is marriage and it's purpose existed for some time. This isn't the first or last time we will struggle with extreme polarity on the subject.

This week someone pointed out a Vatican document from 1880 on marriage. It gives a longer historical, not just religious point of view on why the Church teaches what it teaches outside of the current cultural context.

I'm also sympathetic to iowan2, but how do taxes play out for the needs of the child when parents are not either married or cohabitating at the birth?

How can we talk about how divorce affects children, like we did 15 years ago, when parents are not even married to begin with?

Young adults don't even date, or have anyway of forming a healthy relationship it seems they just watch each other online and hook-up once in a while.






Paul Zrimsek said...

Levy follows Althouse in describing Windsor, bafflingly, as if it were an electoral victory rather than a legal one. A rich old person who's trying to get out of paying estate tax makes a perfectly fine plaintiff for a case that's going to be decided by rich old people who are undoubtedly making every effort to shield their own wealth from estate tax. The general public's opinion of rich old people would not have been consulted, any more than the general public's opinion of gay marriage was consulted.

Ann Althouse said...

"Levy follows Althouse in describing Windsor, bafflingly, as if it were an electoral victory rather than a legal one."

If you genuinely are baffled, you haven't been paying enough attention to how life works or you are insufficiently sophisticated.

You could criticize this focus, but not even to understand the reason for it is quite naive.

I'll assume you're only pretending to be baffled.

Ann Althouse said...

"I have heard her interviewed many times after the case...."

Key word: after.

Mark O said...

But, then again, women are always better than men.

Emil Blatz said...

All other details aside, look at the amount of NY state estate tax relative to the federal estate tax. Of course this is as of 2009, when Spyer passed on, with a lower federal estate credit at that time. But, sheesh, it's a wonder more of my clients here in FL (no state estate tax, no state income tax, tremendous homestead protection as part of the state constitution, etc., etc., etc.) are not NY expats. And soon FL will pass NY as the 3rd most populous state, driven in some significant way by the differential between the tax loading in NY (and other northeastern states) and the nice deal here in FL.

Renee said...

@ Paul

"A rich old person who's trying to get out of paying estate tax makes a perfectly fine plaintiff for a case that's going to be decided by rich old people who are undoubtedly making every effort to shield their own wealth from estate tax. "

But when it comes to taxes it is about fairness, in who gets taxed and by how much and for what reason. Who gets the exemption from a tax and why?

Instead of using tax to fund needed government services, we use the tax code to promote or penalize behavior. The tax code is very moralistic, we spend way more time talking who should pay then what our taxes should doing for the community/nation.

Titus said...

I was going to write AFTER but sometimes all caps aren't cool.

She was kept in check BEFORE the case though.

Paul Zrimsek said...

But when it comes to taxes it is about fairness, in who gets taxed and by how much and for what reason.

Oh, absolutely. I'm just pointing out that for purposes of this case it doesn't even matter whether we commoners would sympathize with a payer of the tax-- let alone whether we ought to sympathize.

Moose said...

It's amusing that it was good old fashioned greed motivating her. How very non-progressive and straight of her!

Lydia said...

At Slate -- The Dirtiest, Sexiest Profile The New Yorker Has Ever Run:

Early in the article we learn that attorney Roberta Kaplan took Windsor’s case only on the condition that her client decline to speak publicly about sex. “All I needed was Antonin Scalia reading about Edie and Thea [Spyer]’s butch-femme escapades,” Kaplan tells Levy. That was surely very smart strategy, but I’m very grateful that now that the Supremes have ruled, Windsor’s “exceptionally colorful and voluble” sex talk no longer needs to be stifled.

Wonder if the New Yorker has some kind of tie-in with their 2009 movie -- Edie & Thea: A Very Long Engagement. That CD cover shot I'm thinking probably didn't get much play before the case.

halojones-fan said...

It's funny how we've made a civil-rights cause celebre of a rich old white person trying to use a loophole to wriggle out of paying Her Fair Share.

jr565 said...

Marriage is between a man and a woman definitionally. Therefore why should she expect that she could marry a woman, being a woman.
it's putting a square peg into a round hole. It doesn't work.

The separate question is, should society set up a framework that will allow gays to be betrothed and get the benefits of marriage, even though they aren't in a marriage per se.

I would say, ok, if only to shut them up already. But that's what a civil union does. And that's what a gay marriage is.

jr565 said...

" Four years earlier, Windsor’s partner of more than forty years, Thea Spyer, died, leaving Windsor her sole heir. The two were legally married in Canada, in 2007, but, because of the Defense of Marriage Act, Windsor was not eligible for the exemption on estate tax that applies to husbands and wives. She had to pay $363,053 in taxes to the federal government, and $275,528 to New York State, and she did not think that was fair."
Lets pretend that this was a case involving polygamy. ANd lets pretend that the marriage is legal SOMEHWHERE and lets pretend that the husband dies and lets pretend that the wives aren't entitled to the estate taxes.
And lets stipulate that they find it unfair. My question - so what?

If a marriage is not legal then you don't get the benefit (or penalty) of marriage But the fact that you don't doesn't automatically mean that we must legalize the marriage, because it's otherwise unfair. That's the whole point of a marriage restriction.
If you aren't married legally, or if the state doesn't recognize your marriage you aren't eligible for the estate tax exemption.

And this is talkiing about the recognition of a marriage from another country! Suddenly those laws are binding for us?
Think of all the people married in harems in the ME who come to this country and are similarly denied the estate tax exemption exemption.

Yeah, so?

jr565 said...

Sweden allows half sibling (who have one birth parent in common) to marry. If two siblings marry, and hten move here and one of them dies are we going to make a tax argument about how the brother and sister are being repressed because of the unfairness of the tax code, and therefore should legalize incestual marriage?

cubanbob said...

I'm really baffled why a legal victory with respects to an equal application of tax laws should be controversial. Whatever ones view on SSM is if a marriage is legal in a jurisdiction that marriage should be treated the same as any other legal marriage in the jurisdiction. If there is a controversy it's the Obama Administration applying as federal law New York's marriage laws everywhere in the country even in states that do not recognize New York's law.

The Godfather said...

Do you remember the Supreme Court case that held that lawyers had a First/Fourteenth Amendment right to advertise? The Court's opinion described in detail the young lawyer plaintiffs, who had set up a small practice to provide legal services to people of low-to-moderate income, and couldn't generate enough clients to make this all work unless they advertised. After we read that, we really wanted those fine young men to win their case, and they did.

Turn on your TV today and look at the smarmy lawyer ads (the bankruptcy lawyers are my favorite, but the ones that have Robert Vaughn as the pitchman are also memorable) and ask yourself if that's what the Supreme Court had in mind. Well, the answer is, of course they knew what the consequences of their ruling would be; they weren't stupid. But they chose not to talk about that. Personally, if I'm going to be spun, I'd prefer to be spun by somebody I get to vote against next time.

Renee said...

@jr565

But unlike Goodridge in Massachusetts, my understanding is that they were childless.

In Massachusetts, the same-sex couple wanted the law presume to a child had no legal right to the father. As a rule, my stance is gay rights end at the rights of the child to know and have a relationship with both parents. Even parents who happen to never of been married/divorced do not deny their children the other parent. Even children adopted through foster care, have a right to visit and know birth family.

The problem is sperm/egg donation is widely accepted over the decades, just as our tax laws do more about moralizing relationships/behaviors then it does to properly fund government programs.

It's pretty clear a mother and father are equally important to an individual, how our parents cooperate and utilize their resources to parent is very important to our well being.

There is no way we can get around that, even if the law the states homosexual behavior must be treated the same way as heterosexual behavior.

As someone who will still defend the concept 'formally known as marriage', one way or another even if I can't call marriage we move forward. For instance I emailed Sen. Elizabeth Warren on the funding of fatherhood/marriage programs. I received a positive response. Now I could roll my eyes, and be frustrated. Which I did, but I'm also happy her office responded as well.

If liberals want to spend money, at least spend it on what I want.

It stinks that they won't leave the Church alone, stop annoying each Pope with the same questions over and over.

Ken Mitchell said...

Same-sex marriage is a very liberal concept.

Raising taxes on rich people is a VERY liberal concept.

So why does a liberal woman who claimed to be in a SSM want to avoid paying the taxes that all liberals agree should be assessed on "rich" people? And it seems that she is fairly well off....

jr565 said...

If the state does t recognize her marriage from another country, then she shouldn't be entitled to the money. Whether we like gay marriage or not.
The degree to which we are supposed to bend definitions, and laws and principles just to accomodate gay people is really annoying.