Op-ed: In the Wake of Windsor
BY James Esseks
June 26 2014 4:00 AM ET
A year ago today Edie Windsor won her landmark case in the Supreme Court and took down the core of the federal Defense of Marriage Act. The American Civil Liberties Union and I were proud to be among her lawyers.
After United States v. Windsor, if you’re a same-sex couple married under state law, you’re married for federal program purposes too. That opened over 1,000 federal protections to married gay couples, including everything from health care benefits to tax breaks to green cards for a spouse.
But with a year’s hindsight, it’s clear that Windsor signaled more than just the end of DOMA, it also propelled us on an accelerated journey toward the freedom to marry nationwide.
In just the last year, Windsor has helped create incredible momentum for the freedom to marry:
- We’ve won six new marriage states since June 2013, bringing us to 19 states plus Washington, D.C., where gay couples can marry.
- Now 44 percent of the country lives in a freedom-to-marry state, up from 18 percent just a year ago.
- Polls show a clear majority nationwide supports marriage for same-sex couples.
- We’ve won 21 court rulings for marriage since Windsor, including two just yesterday (one from a federal appeals court covering Utah and another from a federal trial court in Indiana), which is an incredible record on a “culture war” issue in the courts.
- There are now over 80 marriage equality cases pending in state and federal courts across the country, including in every state that doesn’t allow same-sex couples to marry and in seven federal appeals courts.
These victories came in phases over the past year. The Windsor decision first helped us win marriage through more state legislatures by changing the politics around marriage. Back when DOMA was still the law, civil union states didn’t have a federal incentive to pass a freedom-to-marry law, since federal protections wouldn’t apply to married same-sex couples. After all, that was what DOMA was designed to prevent. But once DOMA was gone, a state’s evolution from civil unions to marriage would trigger all of those federal protections, something that civil unions couldn’t do.
So Windsor rendered civil unions even “less equal,” and that political reality helped the ACLU and our partners pass freedom-to-marry laws in Hawaii and Illinois last fall.
Edie’s victory last year has also led to incredible momentum in the courts.
We started out by winning in state courts in New Mexico (in an ACLU–National Center for Lesbian Rights case) and in New Jersey (in a Lambda Legal case), both of which added new marriage states to the national map. And then in December, the floodgates opened. We got the first of a series of federal court rulings for marriage equality in Utah, then in Oklahoma, Kentucky, Virginia, Idaho, and other places where we weren’t supposed to win but did. All of these decisions rely on Windsor.
In May we won cases in Oregon and Pennsylvania (both ACLU cases, I’m proud to say), but this time there was a difference — the governors decided not to appeal, so both are marriage equality states now.
And in a sign of just how much the politics around marriage have changed, the Pennsylvania governor is a Republican running for reelection. An issue that Republicans ran on in 2004 has become, 10 years later, one they are running from.
While our victories can be summed up with numbers, there’s also the intangible sense that we’ve crossed a tipping point and there’s no going back. The country is ready for the freedom to marry.
Part of what’s gotten us to this exciting moment in American culture is not just Edie’s lawsuit but the story of her life. Her 44-year love affair with Thea Spyer, her caring for Thea through her decades-long struggle with progressive multiple sclerosis, the two of them getting married after a 40-year engagement, and then Thea dying and Edie having to face a $363,000 estate tax that would have been $0 if she had been a straight widow. The love at the core of that story, as well as the injustice at its end, is part of what has moved America on this issue so profoundly.
From all of us — thank you, Edie and Thea. It’s been quite a year!
JAMES ESSEKS is the director of the ACLU's Lesbian Gay Bisexual Transgender & AIDS Project.