To properly do my job it is imperative that I stay somewhat detached so emotions don’t cloud my judgment. Having seen so much, it takes a pretty significant story to move me (such as the senseless shooting of a lesbian couple in Portland, Texas earlier this year). Yet, I found myself fighting back tears in a hotel lobby this morning reading the USA Today that I picked up at the check-in counter. The article that stirred me was about a widow, Edie Windsor, who sued the federal government after she received a $363,000 estate tax bill because her marriage wasn’t legally recognized.
This is one of two cases that the Supreme Court has decided to hear in the coming year. It will challenge the Defense of Marriage Act (DOMA) that defines marriage as between one man and one woman, making it impossible for same-sex couples to receive federal benefits, even if they live in a state with marriage equality.
Although this is ostensibly a legal case, it is really about competing narratives – and there is nothing same-sex marriage opponents offer that comes close to the touching tale of Edie Windsor and her deceased wife Thea Spyer. Their struggle not only tugs at the heartstrings, it transforms the heart into a marionette, dancing merrily to sappy love songs. This case screams out for fair resolution, and the court runs the risk of delegitimizing itself as draconian and doctrinaire if it denies this couple justice.
The case itself boldly refutes decades of false and irrational arguments against homosexuality in general, and marriage equality in particular. Social conservatives have claimed that gay couples don’t stay together. Windsor and Spyer were partners for 40 years, yet were only able to spend the last 20 months legally married.
Anti-gay activists assert that homosexuality is a lonely lifestyle that is centered on sex. Yet, after Spyer was diagnosed with multiple sclerosis in the 1970’s, Windsor quit her job to take care of her ailing partner. Over the years, the condition worsened and Spyer became a quadriplegic. After the discovery of a heart problem, doctors gave Spyer one year to live.
“She got up the next morning after the doctor said that and she said, ‘Do you still want to get married?’” Windsor told USA Today reporter Richard Wolf. “And I said ‘Yes!’ And she said, ‘I do, too. Let’s go…People asked, ‘What could be different? You’ve lived together for over 40 years – what could be different about marriage?’ And it turned out that marriage could be different. We can’t have it, and then suddenly when we can have it, it’s profound.”
After Spyer died, Windsor had a heart attack that doctors diagnosed as “broken heart syndrome.”
This is the type of marriage everyone – gay or straight – dreams of having. It is truly an inspiring example of the vow pledging loyalty in health and in sickness, till death to death do us part. All the biblical devotionals from anti-gay activists can’t diminish the incredible devotion this couple demonstrated. To be blunt, Justice Antonin Scalia’s arcane bigotry invoking the intent of our slave owning founding fathers simply can’t compete with this compelling narrative.
In a sense, the Supreme Court is as much on trial as gay marriage. A USA Today-Gallup Poll, taken in late November, showed 53% support marriage equality, up from 27% in 1996. On ABC’s This Week conservative George Will summed up why the Supreme Court, if they are wise with an eye towards their legacy, should rule in favor of gay couples: “Quite literally, the opposition to gay marriage is dying. It’s old people.”
Meanwhile, as the court cases move forward, gay couples will begin marrying in three new states – Maine, Maryland, and Washington – joining the six states where gay couples can already marry (Iowa, Vermont, New York, New Hampshire, Massachusetts and Connecticut) The nation will be treated to countless stories like that of Windsor and Spyer, which will only strengthen the emerging American consensus in favor of same-sex marriage.
In this legal skirmish, conservatism has much at stake. Will the creed be associated with compassion or kicking a loving and faithful widow when she is down? Will Anthony Kennedy, the swing vote, elect kindness over cruelty? Will Chief Justice John Roberts heighten or harm his legacy? By choosing a case where Windsor is the face of discrimination, the members of the Supreme Court face tough choices.
In the end, this is not a case of legality, but morality, of expanding joy, not cold-hearted jurisprudence. The Supreme Court can be remembered for protecting prejudice or for dismantling discrimination – the stark choice is theirs.
Wayne Besen is a columnist and author of the book “Anything But Straight: Unmasking the Scandals and Lies Behind the Ex-Gay Myth.”