Justice Kennedy’s majority opinion in United States v. Windsor ultimately relied on the U.S. Constitution’s Fifth Amendment, and its protection of liberty, to invalidate Section 3 of DOMA. Yet Justice Kennedy’s understanding of liberty is an odd bird, relying heavily on peculiar notions of dignity, which DOMA purportedly demeaned. Indeed, many of the examples of this DOMA-demeaning that Justice Kennedy provides sound more like cut-and-paste clichés rather than soundly reasoned or evidenced examples of how queer dignity is demeaned by this contentious federal statute. Here, I am somewhat in concurrence with David Cohen’s lament about the lack of liberal Supreme Court voices in the past Term speaking directly to same-sex marriage, but I would caution that these voices wouldn’t really have added much if they also were to rely on thinly-reasoned assertions about the liberal kitchen-sink of (American) liberty, equality, and dignity.
That Edith Windsor had to pay substantial (for the U.S.) taxes on the estate she inherited doesn’t sound much like a dignity issue, though I imagine that some readers may fault me for failing to see the connection between asking ‘unmarried’ gay people to pay their fair share—while letting married straight people evade reasonable taxes—and a hand-waving notion of equality (or is it dignity?). Yet, moving beyond the entirely problematic actual plaintiff in United States v. Windsor, and her estate tax issues, it’s worth exploring other plaintiffs—other Edith Windsors, if you will—who might have better served as poster-children for DOMA’s alleged indignities.
Here, I am going to rely on one such alleged indignity that Justice Kennedy highlighted, thinking about the kind of plaintiff/Edith Windsor who might have been born from such ‘indignity.’ On p. 23 of the slip opinion, Kennedy notes how “[f]or certain unmarried couples, DOMA’s unequal effects are even more serious,” going on to note how same-sex spouses, because of DOMA, are not comprehended by 18 U.S.C. § 115(a)(1)—the part of the federal code making it a crime to “assaul[t], kidna[p], or murde[r] . . . a member of the immediate family of a United States official . . . with intent to impede, intimidate, or interfere with such official . . . while engaged in the performance of official duties.” (emphasis added)
So, imagine that Edith Windsor had not been a mathematician heiress in her lifetime but, rather, had served as a United States civil servant. Imagine as well that Edith Windsor’s spouse, Thea Spyer, had been criminally targeted in an attempt to influence U.S. Officer Windsor’s official actions yet, because of DOMA, Thea Spyer’s attacker had not been prosecuted under 18 U.S.C. § 115(a)(1). Would Edith Windsor have been a sympathetic plaintiff in this instance?
In other words, even assuming that our hypothetical Thea Spyer has an interest in criminally prosecuting her victimization—I assume that, in several instances, she would—it’s far from clear that either she or Edith has an independent ‘dignity’ interest in seeing Thea’s victimization prosecuted at the federal level under 18 U.S.C. § 115(a)(1). Indeed, Thea may view the prospect of sending any person found guilty of her attack to spend their life in a federal penitentiary a grievous assault itself on human dignity. As to our hypothetical Edith, she would not be Thea’s owner and, even if she were, our hypothetical Edith may also find the prospect of activating the federal criminal-prosecution system horrifying. Yet, this, of course, is only a hypothetical world of potential desires, not the real Edith Windsor that we know with the world of right$ that $he has bestowed u$.