Howard Simon: The court confronts the gay-rights revolution


Published: Friday, March 22, 2013 at 2:59 p.m.
Last Modified: Friday, March 22, 2013 at 2:59 p.m.

It should be obvious to everyone that America is in the midst of a fast-moving revolution in the way that lesbian, gay, bisexual and transgender individuals are perceived and treated by the law.

Only 27 years ago, the U.S. Supreme Court issued its ugly decision in Bowers v. Hardwick upholding Georgia's law criminalizing consensual sex between gay people. It took 10 years after that before the legal environment started to change -- and the pace of change has been increasing ever since.

A big victory came in 1996 in the American Civil Liberties Union case of Romer v. Evans in which the Supreme Court struck down a Colorado constitutional amendment banning local governments from enacting human rights ordinances that recognize gays and lesbians as a protected class. Imagine, the U.S. Supreme Court struck down a voter-approved state constitutional amendment that was designed to deny gays and lesbians civil rights. Animus and hostility to any minority group cannot be a basis for any law or public policy, the court ruled.

Unfortunately, that year Congress passed and President Clinton signed the Defense of Marriage Act (DOMA) that prohibits the federal government from recognizing same-sex marriages. (The former president now says that the law should be overturned by the Supreme Court.)

It wasn't until 2003 (just 10 years ago) that the Bowers decision was finally overturned in Lawrence v. Texas –- and suddenly, dramatically, it was no longer a crime to be gay in America.

In 2010, the ACLU of Florida finally won a court ruling striking down Florida's ban on adoption by gay men and lesbians. And just last year, voters in three states enacted marriage equality by popular vote, and the voters in a fourth state defeated an anti-gay constitutional amendment.

All of this occurred in a context of unrelenting advocacy from many groups resulting in changing public opinion.

Just a few decades ago, being gay was considered a mental illness. Fast forward to last year when a sitting U.S. President running for re-election endorsed marriage equality. And now a sitting Republican U.S. senator announced that he too has “evolved” on this issue.

It's in this context of rapid change that this week the Supreme Court takes up the case of Edie Windsor. Every civil rights movement has a face -– Rosa Parks for racial equality, Lilly Ledbetter for gender equity in the workplace, Mildred and Richard Loving for inter-racial marriage, Martin Gill for the right to be a parent, and now Edie Windsor for the right to marry.

Edie is 83 years old. She moved to New York 60 years ago to, in her words, “let myself by gay.” In 1963, she met the love of her life, Thea Spyer.

Edie was a rising star at IBM, working as a computer programmer in a field dominated by men. Thea was a psychologist and accomplished violinist. Two years after their first meeting, they began what Edie called “a very long engagement.”

When Thea developed multiple sclerosis in 1977, Edie quit her job to care for Thea full time. In May 2007, 30 years after Thea's diagnosis, they decided they were running out of time, so the couple went to Canada and got married. Thea died in 2009.

Following Thea's death, Edie received a federal estate tax bill of $363,000 because the federal government, enforcing DOMA, did not consider Edie to be Thea's spouse. The tax bite hurt, but what Edie has said hurt more was that the bill was a statement that in the eyes of the government their devoted 46 year relationship meant nothing –- they were nothing more than legal strangers.

The ACLU and the law firm Paul Weiss intervened on Edie's behalf, and the rest is history. The federal appeals court in New York ruled in Edie's favor, and now the Supreme Court will hear oral arguments on the case.

It might not be smart to make predictions about what the Supreme Court will do with this momentous case -– in a ruling that will probably come at the end of June.

But it would be na´ve to think that the court could stop the movement for full equality that is happening all around us, and worldwide. At worst, the court can delay the change in attitudes and the law. They cannot prevent it.

Howard Simon is executive director of the American Civil Liberties Union of Florida.

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