Will the Supreme Court Recognize Edith Windsor?

Earlier this week, the Washington Post ran a story with the title “High Court Reflects the Diversity of Modern Marriage,” pointing out that among the nine Supreme Court Justices are two divorcées, a widow whose husband did the cooking, one who married late and another who didn’t at all, and one who is “a prolific procreator.” (Scalia.) The Post’s suggestion was that these Justices, in general, ought to know that marriage is complicated, and might be skeptical, when they hear two cases next week on marriage equality, of appeals to a supposed traditional ideal. The argument that the institution is inextricably tied to biological procreation might, for example, not do much for John Roberts, who married when he and his wife were in their forties and adopted two children. There may not be much hope for a marriage-equality vote from Clarence Thomas, but that his interracial (second) marriage would have been illegal in a number of states as recently as 1967 might cross his colleagues’ minds when lawyers start talking about the immutability of marriage.

How familiar, though, in a specific way, might the men and women who brought these cases seem to the Justices? How much do they resemble characters in the Justices’ own lives, or the Justices themselves? They don’t have to; although it is often said that the selections of plaintiffs is crucial in landmark cases, the goal can be someone who is simply sympathetic, like a little girl who just wants to go to school—someone whom judges or any stranger on the street would want to help, rather than someone just like them. (Even if, as Dahlia Lithwick notes, that means eliding certain details about the plaintiff’s life.) The four plaintiffs in the first case, who challenged Proposition 8, the California measure banning same-sex marriage, are appropriately earnest and striving, young or heading into middle age: a lesbian couple with jobs at a nonprofit and with the county health system, raising four sons; a gay couple, one a personal trainer and fitness expert, the other managing a theatre company. Three of the four have masters degrees, and all of them passed through public colleges or universities, whether Montclair State or U.C.L.A. They come across as good people who ought to be able to get married; it seems unjust that they can’t.

There is, though, something distinct about Edith Windsor, the plaintiff in the case challenging the Defense of Marriage Act, and not simply in the almost mesmerizingly romantic aspects of her story—how the night she first danced with Thea Spyer, the woman she would marry, she kept twirling until there were holes in her stockings, and how, forty-four years later, she nursed her as she was dying. Windsor’s biography, but for the same-sex variation, isn’t so different from those of the Justices, or of those in their social and cultural circles. She is eighty-three, three years older than Ginsburg, six years older than Scalia and Kennedy; like Stephen Breyer, who is seventy-four, she was married to a psychologist. She was born in Philadelphia, went to Temple, and then got a graduate degree (in mathematics) from New York University. (In Ginsburg’s case, it was Cornell then Harvard and Columbia; reading Jeffrey Toobin’s profile of Ginsburg in The New Yorker, one can imagine them in the same circles.) Windsor did very well at I.B.M., as an early systems engineer. Her wife died in 2009, the same year as did John O’Connor, whose wife, Sandra Day O’Connor, had, like Windsor, quit a job in which she was a pioneer to care for a spouse with a devastating, chronic illness. (Multiple sclerosis in Spyer’s case, Alzheimer’s in O’Connor’s.)

As I wrote in an earlier post, Windsor had standing to bring the case because she was financially damaged by DOMA. Spyer had left Windsor her shares in the country house and Greenwich Village apartment they’d bought in 1968 and 1975 (each worth much more now), and, because the federal government, unlike the state of New York, doesn’t recognize her marriage, Windsor has to pay three hundred and sixty-three thousand dollars in estate taxes. How many times in their legal careers have the Justices, including the younger ones, told a friend they saw at a dinner party or an older relative who’d been widowed not to worry—that spouses don’t get a tax bill like that? And will it be striking to them that if the widow had been Edith Windsor, they wouldn’t have been able to say so?

Windsor was not carefully selected; according to the Times, when she first went looking for a lawyer, “To her dismay, her case was turned down by a major gay rights organization.” Someone put her in touch with Roberta Kaplan, a lawyer at Paul, Weiss, Rifkind, Wharton & Garrison, who told the Times, “When I heard her story, it took me about five seconds, maybe less.” Next Wednesday, Kaplan will be arguing Windsor’s case in front of the Supreme Court.

Photograph: Bless Bless Productions.

[#image: /photos/5909519dc14b3c606c1038ea]Read our full coverage of gay marriage before the Supreme Court.