Category Archives: New York

The $363,000 Tax Bill That Got Obama

Pat Gozemba

The story of Edith Windsor and Thea Spyer has intrigued me since I came across their marriage announcement in the New York Times. On Nov. 12, 2010 on this blog I posted a short video of them. Check it out in the Nov. 12, 2010 blog below.

A $363,000 Tax Bill to Widow Led to Obama Shift in Defense of Marriage Act

from Bloomberg News

Widow’s Tax Bill Led to Shift on Marriage Act

Same-sex marriage is lawful in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and the District of Columbia. Photographer: David McNew/Getty Images

Edith Windsor and Thea Spyer had a 40-year engagement and a two-year marriage, starting with a wedding in Canada recognized under the laws of New York, where they lived, and ending when Spyer died two years ago.

Her death triggered a $363,053 federal tax bill from which her widow would have been exempt had she been married to a man, because the federal Defense of Marriage Act bars the U.S. government from recognizing same-sex unions.

Windsor’s lawsuit challenging the constitutionality of the act was one of two cited by the Obama administration to justify its decision to stop defending the law. The decision may be a turning point in the fight over putting same-sex marriages on the same footing as heterosexual unions.

“I couldn’t believe that our government would charge me $350,000 because I was married to a woman and not a man,” Windsor, 81, said in a video statement from the American Civil Liberties Union, which is helping to represent her.

Signed into law by President Bill Clinton, the act by 2003 affected 1,138 federal programs in which marital status was a factor in eligibility for benefits, according to the government.

Windsor’s suit to reclaim Spyer’s money from the U.S. is one of two cited by Attorney General Eric Holder in a Feb. 23 announcement that President Barack Obama’s administration would not defend the law in court.

The U.S. won’t argue the act is constitutional in Windsor’s case in federal court in New York and in a Connecticut case involving seven plaintiffs, Holder said in a press statement and letter to House Speaker John Boehner, an Ohio Republican. Notices went to the judges Feb. 25.
Connecticut Case

In the Connecticut case, the seven people — each a survivor or partner of a state-recognized gay spouse — say the act deprived them of the same federal benefits afforded heterosexual couples.

Holder said the department will provide Congress “a full and fair opportunity to participate in the litigation.”

A Boehner spokesman, Kevin Smith, declined in a phone interview to say if, when or how Congress might enter the fray.

Both women in the New York case were professionals, with homes in Manhattan and Long Island. The Amsterdam-born Spyer was a clinical psychologist. Windsor, born in Philadelphia, earned a master’s degree in mathematics from New York University and built a career as a manager for International Business Machines Corp., according to a complaint filed in her case.

Their relationship began in a Greenwich Village restaurant in 1963 while both women were in their 30s. They “danced together all night,” according to the document.

Two years later, they met again on Long Island and were together from then until Spyer died.
Plan for Life

“I’d like to date for a year,” the document quotes Windsor as telling Spyer. “And if that goes the way it is now, I think I’d like to be engaged, say for a year. And if it still feels this goofy joyous, I’d like us to spend the rest of our lives together.”

An engagement that started in 1967, symbolized by a diamond pin instead of a ring that would attract notice at IBM, lasted 40 years. In 2007, with same-sex marriage then legal in Canada, they married in Toronto at ages 77 and 75.

New York, where a bill extending the right to marry to same-sex couples was defeated in 2009, recognizes such marriages that are legal in other jurisdictions, according to Windsor’s complaint.

Most recently, a New York appeals court ruled last week that the surviving husband of a same-sex couple married in Canada can inherit from the deceased man’s estate as any other spouse would.
Long Fight

Spyer, at age 45, started a three-decade battle with multiple sclerosis. Her last dances with Windsor were in an electric wheelchair. Later she developed a narrowing of a heart valve, according to the court document. She died in 2009.

Windsor paid the federal estate tax, giving her the right to ask for a refund and sue when it was denied, which she did in November.

She argues through her lawyers at Paul, Weiss, Rifkind, Wharton & Garrison and the ACLU that the government lacks both a rational basis for the marriage act “much less a compelling interest” — the legal tests for treating members of one particular group differently from others.

Four other challenges to the law are pending in federal courts in San Francisco and in Boston, where the government has already appealed Judge Joseph L. Tauro’s July 8 decision that federal regulation of marriage was an unconstitutional breach of states’ rights. Same-sex marriage is lawful in Massachusetts.

The marriage act, Tauro ruled, forced the state to “engage in invidious discrimination against its own citizens in order to receive and retain federal funds.”
Six Challenges

Only six challenges to the 15-year-old law are in federal courts because nobody had standing to sue until same-sex marriage became legal in some places, said Jennifer Pizer, an attorney for the gay-rights group Lambda Legal.

Same-sex marriage is lawful in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and the District of Columbia.

Holder, in his letter to Boehner and in his press statement, said he will tell the U.S. Court of Appeals in Boston and the judges in two San Francisco cases who are also considering the Defense of Marriage Act’s constitutionality that the more rigorous standard of constitutional review is required.

The current standard under case law in those federal circuits is that there merely be a rational basis for the law. There is no Supreme Court ruling on the marriage act that would resolve the difference.
Precedent Lacking

The appeals court that would hear the Windsor and Connecticut cases has no such precedent to follow, Holder said.

The higher standard, whether the law is substantially related to an important government objective, is used to assess the constitutionality of laws targeting minority groups that have historically suffered discrimination, the attorney general wrote.

The Obama Administration’s abdication drew fire from the marriage act’s supporters.

Michael Steel, a spokesman for Boehner, said in an e-mail he questions why President Barack Obama “thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation” when “most Americans want Washington to focus on creating jobs and cutting spending.”

Texas Attorney General Greg Abbott said the law is “undoubtedly constitutional.” He accused Obama of politicizing the Justice Department, trying to empower judges to ignore democratically enacted legislation that conflicts with his ideological preference.

Supreme Court Silence

No challenge to the law has gone to the Supreme Court, and it has never said sexual orientation is cause for a heightened standard of statutory review, said Harvard Law School Professor Charles Fried, a U.S. solicitor general under Republican President Ronald Reagan.

Fried said he thinks the law is unconstitutional because marriage is an issue for states, not the federal government.

“If the states want to say this is a marriage, I don’t think the feds should be interfering with it,” he said in a Feb. 25 interview, referring to same-sex unions.

At the same time, he criticized the Obama administration for abandoning the defense of the statute.

“They should have held their noses and defended it,” Fried said. “That’s their job.”

The absence of administration support for the marriage act doesn’t mean its challengers have won.

The Justice Department will continue to enforce the law, Holder said, meaning that the administration’s abandonment of the statute’s defense shouldn’t be construed as granting same- sex couples the same federal benefits as heterosexuals.
Enforcement Requirement

The federal government is bound to enforce the law as it applies to federal rules unless it is repealed by Congress or “the judicial branch renders a definitive verdict against the law’s constitutionality,” Holder said in the letter to Boehner.

“Much of the legal landscape has changed in the 15 years since Congress passed DOMA,” Holder said.

“The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional.”

Besides the states where gay marriage is legal, seven others recognize civil unions, under which some of the same protections afforded heterosexual couples are extended to same- sex couples.

Hawaii Governor Neil Abercrombie signed a civil-union bill into law on Feb. 23. A similar Illinois law takes effect June 1.
State Constitutions

Twenty-nine states including Florida, Texas, Missouri, Virginia and Utah have constitutional amendments barring same- sex marriage, according to Lambda Legal, a proponent of equal rights for gay, lesbian and transgender people.

The Supreme Court backed gay rights in 1996 when it overturned a Colorado constitutional amendment that banned anti- discrimination protection for homosexuals, and again in 2003, when it struck down state laws criminalizing sodomy.

In both cases, Justice Anthony Kennedy’s majority opinion suggested the government needed to show more than just a rational basis for enacting the challenged law. Kennedy looms as the potential swing vote should the court take up a gay marriage case, according to Paul Smith, a Jenner & Block LLP lawyer who argued on behalf of opponents of the sodomy laws and represents some of the challengers to the federal marriage law.

“One could certainly predict that he’d be likely to apply some form of heightened scrutiny even if he might still call it rational basis,” Smith said.
Motions Due

Motions to dismiss in Windsor’s case and the Connecticut matter are due March 11.

Congress could join the case by getting permission from the court, Fried said. He said it’s unclear whether the houses of Congress could act independently of each other.

Lambda’s Pizer said the appeals court in the Boston case probably would give Congress permission to intervene so there would be a complete set of arguments for Supreme Court review.

“There will be defenders,” James Esseks, an ACLU attorney, predicted. “It just won’t be the Department of Justice.”

Joan Rivers Supports Marriage Equality

Contrary to the belief that only young people support marriage equality, Joan Rivers does us proud:

60 Million and 63 Percent

Pretty big numbers. Pretty huge victories. We are becoming part of “We the people.” 

As Massachusetts celebrates four years of marriage equality, 60 million Americans now live in three states where gay marriages are recognized. California’s high court and New York’s governor made it possible for millions more Americans to opt for marriage–and have their marriages recognized and respected.

On the heels of these hard-fought for victories, the USA Today/Gallup Poll announced on June 3 that 63 percent of Americans from every area of the country believe that same-sex marriage is “strictly a private decision” between two people. The approval ratings are a tribute to the fair-mindedness and love for equality that are inherently American. Here’s the regional breakdown of the statistics: East (71 percent), West (64 percent), Midwest (63 percent) and South (56 percent). More

Our trailblazing in Massachusetts broke barriers and proved to the country that marriage equality for all is good.

 Prof. Mark Rozell of George Mason University pointed to the fatuousness of the “overheated rhetoric, about the consequences of gay marriage in Massachusetts.” He says that the poll results show that people didn’t see our marriages “affect their own lives.” He adds, “Now, most people have let loose a collective yawn about the issue.” 

While the “collective yawn” might be viewed as a good thing, it is in sharp contrast to the excitement that millions of gay men and lesbians feel at having attained another civil right that allows us to protect ourselves and our families.

The “yawn” is also in sharp contrast to the reaction of the far-right group Save California that is encouraging people to call their county clerks and tell them not to issue same-sex marriage licences. Dan Savage reports that they suggest the following on their website:

Ask your county clerk if they were a Nazi officer during WWII and had been ordered to gas the Jews, would they? At the Nuremberg trials, they would have been convicted of murder for following this immoral order.

So in the wild stretch that is called right-wing spinning, county clerks who swear to uphold the California Constitution are being likened to Nazis.

The Massachusetts Family Institute tried the same ploy. They encouraged clerks to resign rather than uphold their oath of office and issue same-sex marriage licenses. In the end, one or two clerks did resign, but the big story was about the courageous clerks who went one step further and refused to deny licenses to out-of-state couples and took the governor and the attorney general to court over forcing them to act in this unconscionable manner.

They lost only because the racist inspired 1913 law directed at inter-racial couples is still on the books in Massachusetts. The law prohibits couples from marrying in Massachusetts if their home states will not recognize their marriages. But now same-sex couples from New York and California can come to Massachusetts and marry. The 1913 law must be wiped off the books. It’s a disgrace to Massachusetts that has led the way in achieving equality for so many.

With the clear vision of 63 per cent of the people in this country there is no more room for bigotry. Soon 60 million will be yawning at the ordinary, yet somehow extraordinary, nature of marriage equality.


Marriage Equality at Lesbian Herstory Archives

I never cease to be inspired by the work of the dedicated volunteers at Lesbian Herstory Archives (LHA) in Brooklyn, NY. Their commitment has continued to keep this important institution that is independently preserving our history, alive and lively. The vision of Joan Nestle and Deb Edel in founding LHA stands as one of the great accomplishments of the contemporary lesbian movement.

Maxine Wolfe, a seasoned lesbian political activist in many realms but notably in the women and HIV/AIDS movement, hosted the full house at the “At Home at the Archives” event featuring Courting Equality on November 25th. Maxine’s volunteer labor is typical of the energy that keeps the archives vital.

Maxine shared with the assembled group how LHA’s files on “marriage” have changed. “Marriage” used to be mostly about lesbians once married to men. Then the topic exploded as countries around the world and various US states became the sites of struggle for same-sex marriage. In the past three years, the files have begun to expand exponentially. The great part of the story is that once again LHA is preserving our herstory.

When Karen Kahn and I presented at LHA, what was distinctive about the event was the spirit of inquiry and the commitment to thoughtful exchange in the dialogue. In a sense, bringing to LHA our presentation about Courting Equality and the civil rights struggle that it details was like returning to our roots of lesbian feminism.

Even after Karen and I had committed to writing Courting Equality in the spring of 2005, we still had not decided that we would marry. We had engaged in the political lobbying for marriage equality as a civil rights struggle but not seen it as a personal goal for ourselves. We believed that marriage was a right that one should be able to exercise, not necessarily a life goal. Our critique of the institution of marriage had deep roots in our lesbian feminism of the 1970s. That same critique of marriage as an institution was held by many who came to LHA on November 25th.

The conversation probed the roots of marriage as it had been critiqued in particular by lesbian feminists in the 1970s. Karen and I were among that lively group of critics in the 1970s and have remained so. One of the thoughts that we came away from LHA with is the possibility that same-sex marriage may just provide the testing ground for new visions and versions of marriage to emerge. The gender stereotyping that feminists critiqued so meaningfully from the 1960s on went a long way towards liberating women and creating new options in our lives.

Lesbian feminist critiques of same-sex marriage may well liberate marriage. What’s critical is keeping the conversation going. What do you think about the possibility of liberating marriage?

Soulforce Q–Youth Shows the Way in NY!

Published July 28, 2007 11:00 pmMembers of national interfaith organization bring their message to Plattsburgh during their summer campaign across the state in support of Equality of Marriage Act.

Young adults campaign for same-sex marriage in New York
Staff Writer

PLATTSBURGH “” Brian Murphy recently left a pair of shoes with Sen. Joseph Bruno’s staff, asking the New York representative to walk a mile in his shoes.

The California man was one of 32 young adults who fanned out across New York to meet with residents and legislators in support of the New York State Equality of Marriage Act and the right for gay, lesbian, bisexual and transgender New Yorkers to marry.

“There’s such a need for this,” Murphy said when eight members of Soulforce Q, a national interfaith organization, stopped in Plattsburgh during their two-week Right to Marry Campaign across the state. More

       Once again youth are showing the way. The demographics of polls in favor of same-sex marriage promise us that when the younger generation dominates the voting public–there will be scant opposition to same-sex couples tying the knot.

       In New York this week, Brian Murphy led an attention getting demo by dropping off his shoes at Sen. President Joe Bruno’s office. The young man asked the anti-gay marriage Bruno to “walk a mile in his shoes.”  Bruno has been particularly snide in his comments about how he can block gay marriage for as long as he wants to. Now Soulforce Q, a dedicated group of young people who are pointing out the anti-democratic nature of religious opposition to gay marriage, wants to get other New Yorkers to think about the infringement of religion on politics.

       Soulforce Q enlivens democracy wherever they stop. They remind us that this country is founded on the separation of church and state. Centuries ago our forbearers realized how having church and state intertwined dimished people’s freedoms–particularly religious freedoms. Thus, when this country was founded a cardinal tenet in shaping our democracy was separation of church and state.

       The only opposition to gay marriage is religious opposition. There’s no problem with that. Everyone who is religious is free to hold that view but the problem emerges when folks with anti-gay marriage views start trying to impose their religious beliefs on others through legislative and constitutional laws.

       Maybe we need some more re-enactments of pilgrims leaving Europe to come to these shores to practice religious freedom. I vote for Soulforce Q to teach us those religious lessons and remind us of what democracy is all about. Let’s hear it for democracy and keep our ears to the ground for rumblings of a retro-theocracy.

O’Donnell: Civil Unions Not Working in N.J.

While it seems politically incorrect in some circles to not pay homage to the gradual step to equality represented by civil unions, Daniel O’Donnell braved the backlash of LGBT moderates in The New York Times on July 13th (“This O’Donnell Picks His Fights . . .). “Civil unions aren’t really working in New Jersey. Marriage is an understood concept, and the reality is, until I’m able to say, ‘This is my spouse,’ it just doesn’t carry the same weight.” It’s an “emperor has no clothes” reality check.

New York Assembly votes yes on equal marriage

With the leadership of Democratic Governor Eliot Sptizer and Assemblyman Daniel O’Donnell (Rosie’s brother), the New York Assembly approved legislation guaranteeing marriage equality for gay and lesbian couples on June 19. Though not expected to pass the Senate, the historic 85-61 vote, makes it clear that New York is following in the steps of other Northeast states in finally legally recognizing gay relationships. More.