Edith Windsor, Heiress v. Edith Windsor, Civil Servant

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?

My initial response is:  no, not really.  For one, it’s far from clear that the aggrieved party here would be Edith Windsor, rather than the U.S. government, whose decisions and actions were arguably the real target of the criminal activity perpetrated against (a hypothetical) Thea Spyer.  More fundamentally, however, there is the false premise that all/most queer people have faith in the fairness of the American criminal-prosecution system and, moreover, where that underlying fairness is lacking, this system’s desire to prosecute any harm in exponential (and increasingly unfair) ways.  Such queer concerns have, in fact, motivated the latest edited collection by the group Against Equality.

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 $he has bestowed u$.

Comments

[PPD]

Do you claim any deductions (evade taxes)??

[David]

Jeff, I don't follow this post at all. Indeed, it seems glib to me. I just don't understand how you can say that Edith Windsor is an "entirely problematic actual plaintiff"? She seems pretty ideal to me, given that she was treated in a flagrantly equal manner and given the way that such unequal treatment offends one's dignity interests.

You seem to suggest that there is no equality or dignity problem in depriving same-sex couples of the same estate tax arrangements that are available to opposite-sex couples, calling it a "hand-waiving notion of equality." How can that be? Your complaint seems to be with the tax laws that currently permit spouses to inherit from a spouse without incurring estate tax liability. But whether the tax system is justified in this choice is entirely beside the point; the point is that DOMA treats people unequally on the basis of whether they are married to a person of the same, as opposed to opposite sex. The same goes for the civil servant example. Sure, it may be problematic to enhance the penalties for attacks on the immediate family members of civil servants. But that's a wholly independent debate. The issue at hand is whether treating gay spouses differently than straight spouses under identical circumstances violates principles of fairness and equality. How could it not? How could it not be an affront to one's dignity to say that you aren't entitled to the same protections of the law as a straight person in your shoes?

You seem to be saying that our entire system is so unjust, so fundamentally absurd, that the harm visited on folks such as Edith Windsor are trivial when put into perspective. That smacks of little more than nihilism.

[Jake Stevens]

Or the kind of posturing which seems to be consistent with law professors who don't have to represent actual clients.

[Papa Beyondi, S.J.]

Another mindless pomo-babble blast post from someone with terrible aim. Is this really the best facultylounge can do? Maybe the blog masters can ask Maggie Gallagher to be a guest blogger next month? JR's latest posts are at the same depth and quality of critical analysis.

Attacking Edith Windsor, in a bizarre, histrionic way, because she (and presumably others like her) wants the benefit of whatever advantages the federal tax code provides persons in committed relationships is akin to attacking someone at McDonalds who objects that her hamburger doesn't have a patty because the government permits McDonalds to sell animal products in the first place. I.e., it's a complete non-sequitur.

If you think that the tax code, or law in general, should not privilege marriage, fine, great, make that argument (hopefully in a half-way cogent way). But attacking someone who chooses to get married, whether gay, straight, poly, whatever, because the law sanctions this behavior is just dumb. The central premise of JR's argument, as the other commentators to this post have suggested, is incoherent.

Finally, perhaps JR will post his 2012 Form 1040? I am sure we are all curious to see if he is guilty of the same behavior that he attacks Edith Windsor over -- namely, taking deductions he's lawfully entitled to claim. Like the standard deduction (which overstates the underlying deductions to income for many taxpayers, as PPD might be suggesting), or deductions for gifts to charities (many tax systems don't provide a charitable deduction and view such donations as just another form of consumption activity), or deductions for payment of state/local income or sales tax. Before throwing stones at others, for some bizarro notion of tax evasion, one wonders whether JR is paying his "fair share," under the definition of "fair share" that he would have us apply to Windsor. So Jeff, please fess up: are you "paying your fair share" using your own definition? Or are you just throwing rocks from inside the pomo bubble that you inhabit?

[Jeff Redding]

David, thanks for your comment, and sorry for the delay in replying. I think you sell yourself short when you write "I don't follow this post at all"—at least it seems to me that you do get the gist of it and, rather than a moment of incomprehension here, we have a moment of disagreement!

I don't think it's 'nihilistic' to critique the choice of plaintiffs that mainstream LGB organizations bring forward to 'represent the community.' These are not random people, obviously, and they represent not only different legal issues, but also the particular people & faces that mainstream LGB organizations want to invest in. One suggestion here then (and by far not a unique or unprecedented argument) is that the faces of 'marriage equality' be representative of more-average queer people and their life situations. The estate tax and its administration is not an issue for most queer people or, alternatively, for those queer people most in need.

Your comment has anticipated another future post of mine on United States v. Windsor, which I will write in the near future, but there are other queer people, affected negatively by DOMA, who could have not only been more sympathetic 'victims' (more sympathetic for both people within the community and critics outside of the community), but whose challenging of DOMA would likely have generated a majority opinion that is less about money and more about justice generally. (I don't think money and justice are unrelated, but I don't think justice is all about money.)

I take it that the LGB rights movement is ultimately about justice—Edith Windsor's own interviews situate her concerns as ones about 'injustice'—so I don't know how one detaches this case or other cases from larger social justice issues, whether those concern the tax system, the criminal-prosecution system, etc. Perhaps the money-driven nature of 'the real Edith Windsor' precludes us from seeing those links; this indeed is my fear of how plaintiffs like her, with her particular issues, shape discourse of what 'equality' means in everyday life. In a world saturated in inequality, we rarely see equality, and it matters how it emerges.

Justice Kennedy would have written a different opinion with a different kind of plaintiff in front of him; alternatively, a different kind of plaintiff would have motivated Justice Sotomayor to take the lead in writing the majority opinion. Either way, we would have a different articulation of 'equality' if that indeed still remained the focus (rather than, say, 'fairness' or 'justice'—these are not all the same).

[Jeff Redding]

Papa Beyondi, nice to finally meet you; we've never met in person, but I've heard a lot about you!

Hopefully some of my response to David made sense to you.

Warmest regards, from the bubble beyond...