Tuesday, February 26, 2013

Edith Windsor Files Sup Ct Brief In Her DOMA Case

Edith Windsor, the named plaintiff in the historic federal lawsuit against the so-called Defense of Marriage Act, United States v. Windsor has filed her official brief to the Supreme Court urging that it affirm her win in the 2nd U.S. Circuit Court of Appeals.

Lyle Denniston over at SCOTUSblog analyzes the brief:

Chronicling her own life of living in the shadows because she is a lesbian, an eighty-three-year-old woman urged the Supreme Court on Tuesday to recognize her as a constitutional equal in eligibility for federal benefits that go to married couples.   She had to pay an estate tax of $363,053 when her same-sex spouse died four years ago and left her an estate — a tax that she said would never have been due if she had married a man.

Ms. Edith Schlain Windsor filed her brief challenging the constitutionality of the federal Defense of Marriage Act of 1996, arguing that the measure was hastily passed by Congress in a mood of deep hostility to gays and lesbians and, in the process, denied homosexuals who have been allowed to marry each other of all of the benefits and programs that federal law has created for married couples.


Although the bulk of her sixty-two pages of history and legal argument is meant to be an answer to all of the arguments against same-sex marriage that have been put before the Court by the Republican leaders of the House, as defenders of DOMA, the opening of the Windsor brief is designed to show how she experienced years of living with a fear of revealing her sexual identity.

Those pages are part of the legal argument that homosexuals have long been, and remain, victims of widespread intolerance and are now entitled to have such bias judged by a tough standard.   But those pages also are intended to give a human face to the case and to the claim that it is time for the Court to recognize gays and lesbians as part of the American community.
It is an interesting tactic that Windsor's attorneys are using the brief as an exercise to try to educate the Justices about the true nature of the historical and ongoing nature of the myriad ways heteronormativity and homophobia negatively impact the lives and potential of LGBT citizens.

In order for the Court to issue a ruling which grants equal civil rights to LGBT Americans some kind of reckoning and acknowledgment of the past, current and future discrimination faced by LGBT people has to be understood and internalized before a decision can be made to ameliorate and eliminate it.

Oral arguments in the Windsor case are in exactly 4 weeks, on Wednesday March 27th.

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