In defense of the sanctimonious women's studies set || First feminist blog on the internet

Putting the money where their hearts are

Jill

This story about an elderly widow who was hit with a major tax burden because she was married to a woman and not a man is a sad read. The women were together for decades and made a series of great real estate buys, amassing quite a bit of wealth. Ms. Windsor (the surviving wife) cared for her partner for years through an illness, to which her wife eventually succumbed. Then, because of the Defense of Marriage Act, she was forced to pay enormous sums on her wife’s share of their assets — sums she would not have had to pay if she had been married to a man. Yes, it’s Rich People Things, but it’s still a wildly unfair application of the estate tax. The end of the piece, though, particularly stood out to me:

The Justice Department under President Obama has refused to defend the law, but the Republican majority in the House of Representatives is paying for lawyers to argue that it should be upheld.

I know there’s a lot of (deserved) frustration with the Obama administration when it comes to LGBT rights. But part of the problems is that a lot of folks just don’t know all the huge steps that the administration has taken, especially in the courts. The Justice Department refusing to defend a federal law? That is HUGE. Enormous. That happens almost never. Obama can’t overturn DOMA on his own, but he can pretty much single-handedly make sure that it has actual impact.

What’s telling – although obviously not surprising – is that House Republicans are stepping up to make sure that gay people are discriminated against. They’re throwing money at it. They’re hiring lawyers. The same party that supposedly hates taxes and wants to repeal the estate tax is spending its own money to make sure that an 82-year-old widowed lesbian is treated differently than an 82-year-old widowed heterosexual.

That’s pretty real. It says a lot about each party’s priorities. And it points out that while the Democrats are not always the best on LGBT issues (DOMA was, after all, Clinton-era legislation, although more than 15 years ago in a very different political landscape), they are taking major steps to support LGBT rights. Whereas Republicans are intentionally and aggressively trying to do as much damage to LGBT people and gay rights as they reasonably can.

17 thoughts on Putting the money where their hearts are

  1. I’m interested in seeing whether the comments to this post reinforce my own adherence to Jonathan Chait’s “Liberals are always disappoint” when in power thesis.

    But the above points are utterly true and incredibly important to drum beat between now and November.

  2. “Not defending it” means that it is still in IRS rules that gay marriages don’t ‘count’. “Not defending it” means this woman still legally owes these taxes. “Not defending it” means any Federal agency rule implementing DOMA still holds. “Not defending it” is meaningless or worse – it could actually PREVENT action against DOMA by preventing any Court of Appeals case decision against it on equal protection grounds – without a Federal ‘defence’ there is nothing to appeal. “Not defending it” becomes “defending it” as soon as Mitt Romney takes office. Or, if not Mitt in 2012, whichever (likely even less gay-friendly) Republican takes over in 2016, 2020, or whenever the inevitable change of power happens.

    The only positive of “Not defending it” is that someone willing to take on the IRS MIGHT end up being able to appeal the IRS ruling against their marriage ‘counting’ and get a favorable ruling when the DOJ mounts no defense – if they can afford to work their way past the administrative process internal to the Treasury. (Not defending it is only the DOJ – other Federal agencies, and the courts, are still required by law and Constitution to uphold DOMA as law, until instructed otherwise by Congress (or the Constitution, if gays win Equal Protection rights).

    1. I’m not saying I support DOMA. I’m saying that not defending it is a big deal — because it means that people impacted by DOMA can bring legal cases and the federal government concedes that it’s not worth defending.

      Obama could try to overturn it — and I wish he would — but his chances of success are extremely slim. Not defending it means it has very little power once challenged.

  3. rvman — I’m not sure I understand your complaint. The law has been challenged, the lower court has ruled that Ms Windsor is being descriminated against by federal law, which means that an appeal would put it at the level that the DOJ is responsible for going against her in federal court. They have decided not to do that. Republicans are filling in, of course, but it’s extremely rare that the DOJ would refuse to defend a federal law.

  4. The same party that supposedly hates taxes and wants to repeal the estate tax is spending it’s own money to make sure that an 82-year-old widowed lesbian is treated differently than an 82-year-old widowed heterosexual.

    Wow. That really does show their true intentions, doesn’t it? Make life easier for a certain, narrow, privileged group of people and worse for everyone else.

    While this woman’s situation is clearly discrimination based on sexual orientation, it is also plain and simple sex discrimination. If she were male, and had been married to the same deceased person, she wouldn’t be having this problem. Stuff like this makes me so mad.

  5. @2: Agencies generally can’t decide not to follow the law. Until Congress repeals the law or the Supreme Court overturns it, the IRS and other federal agencies are bound by it. They can’t just unilaterally ignore it. DOJ is saying, however, that if someone brings a constitutional challenge to the law, they, as the attorneys for the executive branch, won’t defend it. (Regardless of what agency is involved, DOJ would appear in court on behalf of the US.) That is a big deal, and it’s pretty much all that the executive branch can do on its own. (I think there are some executive orders affecting certain employment benefits for executive branch employees in same-sex marriages, but those still have to comply with DOMA.)

  6. Obama could try to overturn it — and I wish he would — but his chances of success are extremely slim. Not defending it means it has very little power once challenged.

    I don’t get this legal stuff. If it has very little power once challenged then why would it be difficult for Obamma to challenge it and get rid of that shit.

    Also why does the responsibility always fall on the little guy to do the legal challenges. If I had to do a legal thing like bring a suit or something I wouldn’t even know where to start and I’m in the UK where everything is 100x simpler. Furthermore not all people have the money to get laywers and challenge pieces of law like that.

  7. DOJ is saying, however, that if someone brings a constitutional challenge to the law, they, as the attorneys for the executive branch, won’t defend it.

    Sorry for posting twice but what does this actually mean if the DOJ (which I guess means department of justice right?) won’t defend it?

    Does it mean that the DOJ will turn up in court but won’t make much of an effort and will just be chilling and that so the other team will win? Or does it mean that, like, as soon as some challenges it the DOJ just surrender and it gets removed?

  8. I don’t get this legal stuff. If it has very little power once challenged then why would it be difficult for Obamma to challenge it and get rid of that shit.

    Short answer is the executive branch doesn’t really have the power to eliminate laws. The Judiciary can determine that a law violates the Constitution and, therefore, is invalid. The Legislature can pas a new law ammending or repealing the old one. But all the executive branch can do is decline to fully enforce. That’s what they decided to do here. There are exceptions and complications sometimes, but that’s the general story.

  9. Also why does the responsibility always fall on the little guy to do the legal challenges.

    Chiara, I’m not a lawyer, so perhaps someone with better understanding of the law will correct me, but I think challenging a law in court requires standing. That doesn’t mean the money and the legal work can’t come from, say, an organization like LAMBDA Legal, but a plaintiff – in this case, Ms. Windsor – is still necessary.

  10. The problem goes far beyond discrimination based on sexual orientation.  There’s no rational basis to discriminate against ANY two people whose lives and finances have become inextricably intertwined.  An elderly brother and sister may live together; a mother and daughter; two cousins; a girlfriend and boyfriend; or two non-romantically involved individuals of either sex.  Stories as tragic as the subject of this post could happen in any of those couplings.   Making “marriage” the basis of such vast government benefits penalizes people who are as committed to each other every bit as much straights or gays.

  11. The same party that supposedly hates taxes and wants to repeal the estate tax is spending its own money to make sure that an 82-year-old widowed lesbian is treated differently than an 82-year-old widowed heterosexual.

    I thought I read that they actually came up with a way to pay to defend it using taxpayers’ dollars. If that’s the case, they are actually spending OUR money to defend this. If this isn’t the case, someone please correct me, because this offends me a lot.

  12. There is a really lovely documentary about these two women that can be found on Netflix: Edie & Thea: A Very Long Engagement.

  13. That article made me cry, to have lost the love of your life and then to have the strength to challenge DOMA, to carry on, to fight for what is right. I so hope she gets to the Supreme Court and wins, soon.

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  15. If DOJ decides not to defend a law, it means that when someone files a suit challenging its constitutionality, DOJ will not oppose it. It’s not that they’ll show up but do a poor job, it’s that they basically won’t show up and won’t make arguments defending the law. That’s a big deal because DOJ is basically the executive’s law firm, and it is charged with, among other things, defending the executive branch against lawsuits and defending the laws the executive branch is charged with enforcing. The court still makes the final decision, but it certainly makes it more likely that the law would be overturned. That’s why Republicans agreed to fund a defense.

    And the executive branch generally can’t challenge a law passed by Congress. You have to have a plaintiff with standing–someone who can show that they were harmed in some specific way by the law; in this case, by having to pay higher taxes than a heterosexual married person in the same situation. You can’t just challenge a law because you don’t like it.

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