Edie Windsor, Elderly Lesbian Widow, Makes Case in Federal Appeals Court

“I look forward to the day when the federal government recognizes all marriages as legal, and I’m very hopeful that day will come while I’m still alive,” said the 83-year-old outside the courthouse in New York City.

BY Julie Bolcer

September 27 2012 10:30 PM ET

Acting Assistant Attorney General Stuart Delery delivered arguments for the Department of Justice, as he did for the Gill case in the First Circuit. Judge Droney asked him whether the federal government viewed DOMA through the lens of strict scrutiny or intermediate scrutiny. Delery said the federal government believed that something more than the least stringent standard of rational basis review applied, but he said the government did not take a position on whether that was intermediate or strict scrutiny.

“However you parse the origins, it is a deeply ingrained aspect of one’s identity,” he said of sexual orientation.

Chief Judge Jacobs questioned how Delery could argue that gay men and lesbians are politically powerless when the Department of Justice’s very appearance in court to challenge DOMA would seem to contradict that declaration. He said, “Your presence here would be an argument against the argument,” to which the attorney responded that gay and lesbian people still regularly lose when their rights are subject to popular vote, for instance.

Earlier, Chief Judge Jacobs had highlighted the awkward position of Delery, tasked with arguing for the underlying rationale that finds DOMA unconstitutional while the administration continues to enforce the law. The judge asked him, “So, basically your role is to stimulate decision-making in the courts?” prompting light laughter to break in the crowded courtroom. Judge Straub pointed out that the Department of Justice had defended DOMA until two years ago, asking, “What is it that changed your view?” Delery responded that a new analysis of the proper level of scrutiny had promoted President and the Attorney General to change course.

Windsor has already appealed her case to the Supreme Court, citing the need to expedite her appeal in part because of her fragile health. She said outside the courthouse following the proceedings that she suffers from “a number of major illnesses” and “a lousy heart.” Despite her condition, however, she said she recently managed to take a lesbian-themed boat cruise, where she said she was greeted like a “hero.” Asked what she thought of being the public face of the marriage equality battle, she smiled and said, “I love it. It feels great.”

“Not only is it illegal as my lawyers argued today, but it challenges the basic princples on which this country was founded from the first, fairness and equality,” she said. “I look forward to the day when the federal government recognizes all marriages as legal, and I’m very hopeful that day will come while I’m still alive.”

Plaintiffs from the Pedersen case in Connecticut, which makes similar arguments as the Windsor challenge, joined her in Manhattan. Their case is being appealed to the Second Circuit while attorneys for Gay & Lesbian Advocates & Defenders have also asked the Supreme Court to review the challenge. Should the high court decide to hear Windsor’s case, it would bypass a ruling from the Second Circuit, her attorneys said. If the court takes one or more of the other cases, then the Second Circuit can still rule in Windsor.

The Supreme Court returns to session this Monday, but the nine justices have not yet indicated which of several DOMA cases, if any, they plan to hear. Legal experts widely believe the court will hear at least one of the challenges, a sentiment expressed by Justice Ruth Bader Ginsburg in remarks at the University of Colorado at Boulder last week. That means a ruling on DOMA would be delivered by June 2013.

Windsor, meanwhile, said she remained “optimistic” after a day of oral arguments that brought nothing unexpected, a feeling that her attorney Kaplan shared. She said that she believed her late spouse Thea would be “happy” with her efforts, and that a victory over DOMA would be “momentous” in terms of improving the coming out experience for gay teenagers, smoothing life for the children of same-sex couples, and helping to reduce suicides among young and old gay people.

“I think it will begin to be the end of internalized homophobia,” she said. “We don’t have to lie about who we are anymore.”

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