Marriage Equality Was Won by Widowers

Roberta Kaplan and Edie Windsor
Roberta Kaplan and Edie Windsor

For better or worse (pun intended), much of LGBT activism in the late 1990s and early 2000s on to well, 2015, was devoted to repealing the Defense of Marriage Act and “don’t ask, don’t tell.” The latter, a political battle that began with former presidents — Bill Clinton created the policy as a compromise; Barack Obama ended it by signing the Repeal Act in 2010 — made it so LGB folks could serve openly in the military. In 2016, trans people were added to that OK-to-serve list. The repeal had great economic impact in some parts of the country (and symbolic impact elsewhere) as the U.S. Department of Defense, according to the World Economic Forum, is the largest employer in the world (with 3.2 million employees). 

But as compelling as American military vets and future soldiers are, they had nothing on the same-sex couples and LGBT families who were pushing for marriage equality. The need for love is universal. And shiny, happy photos of even strangers getting married are a bit like catnip to an eager kitten: intoxicating, even if you don’t know why. For nearly two decades, photos of our families — many with kids — have been peppered in magazines, and social media has made them lovingly ubiquitous.

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Marriage offered the most tangible level of acceptance for a legion of people who felt a main difference between them and their straight members was who they loved. Perhaps more importantly, it affords parents, partners, and survivors the economic security straight people could take for granted. 

And it started decades ago. Before Michael McConnell agreed to move in with his boyfriend, he insisted Jack Baker (pictured below) make an honest man of him. Baker went to law school to figure out how. So in 1970, they became the first same-sex couple to apply for a marriage license and took their fight to the Supreme Court (clearly, they lost). The case factored, indirectly, into a landmark decision more than 40 years later.

The men, by the way, were not deterred. After a legal change to a gender neutral name and finding a clerk in a neighboring county, voila, matrimonial bliss. Forty-seven years later, they are still together.

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After McConnell and hubby, there were many, many litigants in a number of cities — too numerous to recount here — as well as lawyers, activists, and politicians who lodged hundreds of thousands of hours during these two decades to get to the final Supreme Court decisions that made marriage equality the law of the land for the whole nation.

At their heart, the landmark Supreme Court decisions that gave America marriage equality revolved around the great love stories of two same-sex couples. But the defendants weren’t love birds whose union was being thwarted by laws banning same-sex marriage. They were both already married and widowed by the time they filed their lawsuits.

There were two couples, two love stories, two tragic deaths, two widowers, in two different court cases that received the two different, groundbreaking decisions that allowed couples all over the country to say their vows and be equal under the eyes of the law.

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Lesbian couple Edie Windsor and Thea Spyer (pictured above) had been together for 40 years when a doctor told Spyer she only had a year to live. She had been living with progressive multiple sclerosis since 1977. The couple, who had been waiting for marriage equality to come to New York, decided they couldn’t wait any longer. They dashed up to Canada to wed in 2007. Spyer passed away two years later. Then the 80-year-old Windsor was hit with a $360,000 estate tax bill because the federal government didn’t recognize their marriage.

Windsor sued and her lesbian lawyer, Roberta Kaplan, took Windsor v. United States to the Supreme Court, challenging the constitutionality of the Defense of Marriage Act. On June 26, 2013, in a 5-4 decision written by Justice Anthony Kennedy, the court ruled that DOMA violated Fifth Amendment protection and did so with no justification other than “a bare congressional desire to harm a politically unpopular group” — the LGBT community. According to SCOTUSblog, the ruling established that any federal statute referring to “marriage” or a “spouse” must apply to all legally married couples, same-sex or otherwise.

Ohio residents Jim Obergefell and John Arthur had been together two decades when the Supreme Court struck down DOMA. Although Arthur was terminally ill at the time, the couple quickly flew to Maryland to get married. Their plane touched down just long enough for them to say “I do” on the Baltimore-Washington International Airport runway.

When Arthur died not long afterwards, Obergefell was denied the right to be listed as the surviving spouse on Arthur’s death certificate. Ohio hadn’t legalized or granted recognition of same-sex marriages, so the state didn’t consider Obergefell a spouse. He sued in Obergefell et al. v Hines. A federal district judge ruled Ohio must recognize the marriage, but the Sixth Circuit reversed that decision.

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Then June 25, 2015, in another 5-to-4 decision, the Supreme Court ruled in Obergefell’s favor, arguing the U.S. Constitution required states to not only recognize same-sex marriages from other states, but also allow same-sex marriages in their own state.

In the opinion, Justice Kennedy referenced the Fourteenth Amendment, which says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” and that states must recognize the legal records, and “judicial proceedings” of other states, like driver’s licenses and marriage licenses. 

The decision struck down the remaining same-sex marriage bans in 13 states. Thanks to two widows, marriage equality was now the law of the land. 

Additional research by Sunnivie Brydum and Dawn Ennis.

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