Goodbye to Edith Windsor.

"Edith Windsor, the gay-rights activist whose landmark Supreme Court case struck down the Defense of Marriage Act in 2013 and granted same-sex married couples federal recognition for the first time and rights to myriad federal benefits, died on Tuesday in Manhattan. She was 88.... Four decades after the Stonewall Inn uprising fueled the fight for lesbian, gay, bisexual and transgender rights in America, Ms. Windsor, the widow of a woman with whom she had lived much of her life, became the lead plaintiff in what is widely regarded as the second most important Supreme Court ruling in the national battle over same-sex marriage rights."

From the NYT obituary.

ADDED: In 2013, I blogged about the great New Yorker article, "How Edith Windsor fell in love, got married, and won a landmark case for gay marriage."

It begins:

"Fuck the Supreme Court!” Edith Windsor said, one hideously hot morning in June, when she’d had just about enough. Then she sighed and mumbled, “Oh, I don’t mean that.” What she really meant was that she was hot, she was tired of waiting, and, most of all, she was tired of being told what to do. “I’m feeling very manhandled!” she said.

It was Windsor’s eighty-fourth birthday, and she was spending it staring at a laptop screen as information from scotusblog.com flashed by in a typeface too small for her to read comfortably. Four years earlier, Windsor’s partner of more than forty years, Thea Spyer, died, leaving Windsor her sole heir. The two were legally married in Canada, in 2007, but, because of the Defense of Marriage Act, Windsor was not eligible for the exemption on estate tax that applies to husbands and wives. She had to pay $363,053 in taxes to the federal government, and $275,528 to New York State, and she did not think that was fair.

There's some excellent material about lawyering, including getting the right plaintiff as the face of the issue. One "experienced movement attorney" explains that "Women are better than men" and "post-sexual is better than young." Windsor was not just female and presumably "aged out of carnality," but, we're told, didn't "look gay."

Her pink lipstick and pearls would make it easier, [her lawyer Roberta] Kaplan knew, for people across the country to feel that they understood her, that she embodied values they could relate to.

Some movement lawyer types thought Windsor was the wrong plaintiff because she was too rich, and her legal problem was a problem of a rich person. Who owes $600,000 in taxes? What kind of civil rights movement forefronts suffering of that kind?

"There were these calls," Kaplan said. "These people from Lambda were like, 'We really think that bankruptcy is the perfect venue to challenge DOMA,' because they had a bankruptcy case they wanted to bring. Finally, I couldn't stand it. I said, 'Really?  I don't want to be disrespectful or classist, but do you really think that people who couldn't pay their personal debts are the best people to bring the claim?"...

Kaplan was convinced that Americans dislike taxes even more than they dislike the rich...

I was too lazy to blog my prediction, but — believe me! — I knew the Supreme Court was going to deny cert. in the same-sex marriage cases.

"This morning the Court... denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage. This means that the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly...."

My prediction was based on 2 data points:

1. In mid-September, at a forum at the University of Minnesota Law School, Justice Ruth Bader Ginsburg was asked when the Supreme Court will decide the same-sex marriage question, and she "noted that all three appellate courts to address the issue so far... have struck down state laws limiting marriage to opposite-sex couples... [G]iven that there is no disagreement so far, she concluded, there is 'no urgency' for the Court to take it right now."

2. Last Wednesday, at a forum for high school students in Colorado, Justice Scalia was asked the same question, and he said: "I know when, but I’m not going to tell you." After a laugh from the audience, he added: "Soon! Soon!"

I had the feeling that Scalia's "I know when" referred not a specific date, but to the specific condition, and that condition was the one Ginsburg had cited: When there is a split in the circuits. The Court has reason to believe that condition will never occur, and it can preserve its political capital by never weighing in on the subject.

I have thought ever since Windsor that any careful analysis of the Supreme Court precedent would lead any federal circuit to strike down the same-sex marriage bans. The uniformity we tend to think of as coming from the Supreme Court can come from unanimity among the circuits (after the nudge in Windsor).

Some people might want to get the answer nailed down for the whole country as soon as possible, but I'm guessing that the view on the Supreme Court is that things are already happening quickly and giving people a little more time to adjust — to evolve, as many like to say — is really more effective than a top-down dictate from the Court — which would give marriage equality opponents much more to cry out about.

And really, rejecting these cases is almost a clearer announcement that issue is over. Unless some circuit court decides to resist the compulsion of Windsor, at some point we will all look back and see that it was really already decided last year.

When will the Supreme Court decide the same-sex marriage question? The answer is probably: Never. Or: It already did.

ADDED: Look, Rand Paul is evolving.

"Pope Francis, The People’s Pope" is Time's Person of the Year.

"He took the name of a humble saint and then called for a church of healing. The first non-European pope in 1,200 years is poised to transform a place that measures change by the century."

Here's the post where I analyzed Time's 10 finalist and concluded that the person would be Edith Windsor. My runner-up was Edward Snowden.

But my rejection of the Pope had an "unless" clause: "Popes have won, but I think it's a bit early to go with another Pope yet, unless the Time folk are itching to play Obama's recently attempted income inequality theme. I think that would be shabby, so I say no."

A number of commenters here thought the Pope would win, and I want to single out Pat:

I think it goes to the Pope and not because he's said some "leftist" things. In a very short term, he has sparked new life into a very large religion. I am a crotchety grumpy conservative, and I love everything about the guy.

I haven't read the whole article yet and probably never will. Here's a key passage that connects to American political themes:

[B]ehind his self-effacing facade, he is a very canny operator. He makes masterly use of 21st century tools to perform his 1st century office. He is photographed washing the feet of female convicts, posing for selfies with young visitors to the Vatican, embracing a man with a deformed face. He is quoted saying of women who consider abortion because of poverty or rape, “Who can remain unmoved before such painful situations?” Of gay people: “If a homosexual person is of good will and is in search of God, I am no one to judge.” To divorced and remarried Catholics who are, by rule, forbidden from taking Communion, he says that this crucial rite “is not a prize for the perfect but a powerful medicine and nourishment for the weak.”

And:

He can barely contain his outrage when he writes, “How can it be that it is not a news item when an elderly homeless person dies of exposure, but it is news when the stock market loses two points?” Elsewhere in his exhortation, he goes directly after capitalism and globalization: “Some people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This ­opinion … has never been confirmed by the facts.” He says the church must work “to eliminate the structural causes of poverty” and adds that while “the Pope loves everyone, rich and poor alike … he is obliged in the name of Christ to remind all that the rich must help, respect and promote the poor.”

ADDED: Is that last sentence miswritten or does the Pope talk about himself in the third person like that? I looked it up. The answer is the latter, or really neither. It's more of an opinion about the role of whoever occupies the position of Pope.

The 10 finalists for Time's Person of the Year.

I know. I hate getting suckered into this annual nonsense, but the list presents some interesting options"

Bashar Assad, President of Syria
Jeff Bezos, Amazon Founder
Ted Cruz, Texas Senator
Miley Cyrus, Singer
Pope Francis, Leader of the Catholic Church
Barack Obama, President of the United States
Hassan Rouhani, President of Iran
Kathleen Sebelius, Secretary of Health and Human Services
Edward Snowden, N.S.A. Leaker
Edith Windsor, Gay rights activist

It's not going to be Assad. If we were going to do Bad Guy persons of the year, somebody more dramatically bad would have won recently, like Osama bin Laden or Saddam Hussein. It would be pathetic to reward Assad with that kind of attention. What about Vladimir Putin? He's not even on the list of finalists, probably because he's already won, back in 2007.

Scratch Hassan Rouhani. He hassan done enough yet.

"How Edith Windsor fell in love, got married, and won a landmark case for gay marriage."

A great article by Ariel Levy. Worth subscribing to The New Yorker to get access. I had The New Yorker in audio podcast form, and this article inspired me to subscribe to the print edition. It begins:

"Fuck the Supreme Court!” Edith Windsor said, one hideously hot morning in June, when she’d had just about enough. Then she sighed and mumbled, “Oh, I don’t mean that.” What she really meant was that she was hot, she was tired of waiting, and, most of all, she was tired of being told what to do. “I’m feeling very manhandled!” she said.

It was Windsor’s eighty-fourth birthday, and she was spending it staring at a laptop screen as information from scotusblog.com flashed by in a typeface too small for her to read comfortably. Four years earlier, Windsor’s partner of more than forty years, Thea Spyer, died, leaving Windsor her sole heir. The two were legally married in Canada, in 2007, but, because of the Defense of Marriage Act, Windsor was not eligible for the exemption on estate tax that applies to husbands and wives. She had to pay $363,053 in taxes to the federal government, and $275,528 to New York State, and she did not think that was fair.

There's some excellent material about lawyering, including getting the right plaintiff as the face of the issue. One "experienced movement attorney" explains that "Women are better than men" and "post-sexual is better than young." Windsor was not just female and presumably "aged out of carnality," but, we're told, didn't "look gay."

Her pink lipstick and pearls would make it easier, [her lawyer Roberta] Kaplan knew, for people across the country to feel that they understood her, that she embodied values they could relate to.

Some movement lawyer types thought Windsor was the wrong plaintiff because she was too rich, and her legal problem was a problem of a rich person. Who owes $600,000 in taxes? What kind of civil rights movement forefronts suffering of that kind?

"There were these calls," Kaplan said. "These people from Lambda were like, 'We really think that bankruptcy is the perfect venue to challenge DOMA,' because they had a bankruptcy case they wanted to bring. Finally, I couldn't stand it. I said, 'Really?  I don't want to be disrespectful or classist, but do you really think that people who couldn't pay their personal debts are the best people to bring the claim?"...

Kaplan was convinced that Americans dislike taxes even more than they dislike the rich...

Today in the Supreme Court: the Defense of Marriage Act.

Adam Liptak explains the statute and the arguments against it.

This law was passed in 1996 — almost 20 years ago. Why has it taken so long to get to an answer about its constitutionality? I did a final exam in my Constitutional Law class based on DOMA in, approximately, 1996.

One thing about the current case: It has a crisply defined embodiment of the asserted constitutional right — an 83-year old woman (Edith Windsor) whose spouse died and left her property that would be tax free if the IRS recognized her marriage and who is stuck instead with a $360,000 tax bill.

Her opponent is "United States," a formidable party, usually, but in this case, bizarrely vague:

[I]n February [2011], Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that [DOMA] was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.

That's unpleasant. They're lying back waiting for the Court to do the difficult work.

[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts.

Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal.

The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question.

Does anyone want that argument to succeed? But I await Professor Jackson's arguments. It might be that the Court shouldn't rescue the administration from its politically uncomfortable position. But I feel sorry for the Edith Windsors whose cases are not governed by the 2d Circuit opinion.