DOMA Case Analysis And Arguments: A Lesbian Love-In Small Screen Celluloid Moment

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It was lesbian heaven on the small screen celluloid world last night when Rachel Maddow kicked off her show with a loving treatise to Associate Justice Ruth Bader Ginsburg during a segment filled with and defined by  powerful women  who have changed our world for the better

Yesterday’s Defense of  Marriage Act (DOMA) arguments in United States v. Windsor were followed by a lovely lesbian evening which was kicked off by Rachel Maddow herself, at the top of her broadcast as she delivered an adoring ode to Ruth Bader Ginsburg, arguably the most incisive jurist at the Supreme Court during the Windsor arguments.

Indeed, Maddow was completely captivated by Ginsburg’s reference to same-sex marriages as “skim milk,” not “full,” or whole,  like heterosexual marriages, which benefit from approximately 1,100 different statutes, although effectively denied to gay couples by DOMA.  Her show plastered “Skim-Milk Marriage” at the bottom of the screen continuously throughout the DOMA segment.

I knew that Justice Ruth Bader Ginsburg would love Windsor, because of its intricacies of benefits and taxes and because of the blatant discrimination; and while a reverse would be hugely significant, it could be decided with a jurisdictional state’s rights argument, or maybe on the constitutional merits. We all hope for the latter.

But of course  Maddow played tape from the arguments, and who could have not been inspired by the arguments posed by the charismatic litigator Roberta Kaplan, who fought brilliantly for Edie Windsor’s claims (the ACLU filed the lawsuit against the government on behalf of Windsor).

Let me just admit to The New Civil Rights Movement readers that I am in love with Kaplan’s rigorous and brave defense of Windsor and her tete de tete with Chief Justice Roberts which ends the argument on behalf of Windsor:

Roberta A. Kaplan: The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have.

And only two of those referenda have ever lost.

One was in Arizona; it then passed a couple years later.

One was in Minnesota where they already have a statute on the books that prohibits marriages between gay people.

So I don’t think — and until 1990 gay people were not allowed to enter this country.

So I don’t think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous — I think gay people are far weaker than the women were at the time of Frontiero.

Chief Justice John G. Roberts: Well, but you just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted, and I’m just trying to see where that comes from, if not from the political effectiveness of — of groups on your side of the case.

Roberta A. Kaplan: To flip the language of the House Report, Mr. Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples’ relationships are not significantly different from the relationships of straight married couples.

I don’t think–

Chief Justice John G. Roberts: I understand that.

I am just trying to see how — where that that moral understanding came from, if not the political effectiveness of a particular group.

Roberta A. Kaplan: –I — I think it came — is, again is very similar to the, what you saw between Bowers and Lawrence.

I think it came to a societal understanding.

I don’t believe that societal understanding came strictly through political power; and I don’t think that gay people today have political power as that — this Court has used that term with — in connection with the heightened scrutiny analysis.

Chief Justice John G. Roberts: Thank you, Ms. Kaplan.

In straining to listen to Kaplan’s articulation and prevented from watching, I got in touch with my ‘inner lesbian’. I was wowed by her. Not able to watch her, I hung onto to every word, imagining her before the Chief Justice, hammering on the reality of our lives and the suffering as a result of this terrible law.

But the chief lesbian on this night is Maddow, who is not done with her examination of DOMA yet, before she interviews none other than Mary Bonauto, an attorney (and lesbian) and GLAD‘s director of the civil rights project  who made history in America when she successfully argued in the Massachusetts Supreme Judicial Court that civil unions were not constitutional, laying the legal groundwork for the DOMA challenge at the US Supreme Court.

So now we have two open lesbians talking to each other on the small celluloid screen of a major network, which I believe is unprecedented.  This just does not happen everyday, or on any day…and I was just loving it.  It was wonderful. I feel like I had died and arrived to  lesbian celluloid heaven for a women’s only party.

I freely admit that I am taken with all these powerful women.  And because it happens so infrequently, when we see just one lesbian on television, as in Rachel Maddow, we rightly celebrate.  And now there was two.  I just wanted to jump up and down and cheer on all these lesbians, who are powerful women in the ways that attracts all of us to one another!

 

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But the two lesbians that matter the most right now are Edith Windsor and Thea Spyer, who loved each other for 42 years and were married in Canada the last year before Thea died.  In Thea’s death, Edie was hit with a whopping $360,000 tax penalty on property inheritance because their marriage was not recognized by the IRS due to DOMA’s prohibitions. Edie chose to fight and it is because of her love for Thea and her compunction to fight back–that the oppressive walls of DOMA  may just come tumbling down in June.  All because of these two lovely lesbians. Who could not love and adore Edie Windsor?

So let me leave you with one more brilliant lesbian that people should follow, as we await the Prop 8 and DOMA decisions: Georgetown Law Professor Nan Hunter and the author of the engaging “Hunter of Justice blog  where she has analyzed the Prop 8 and DOMA cases (among many other issues).  Follow her regularly because of her trenchant legal analysis and know this about her as well:  Hunter has been a ground-breaking advocate for women and LGBT people throughout her storied and dedicated career of service to our community.

Tanya L. Domi is the Deputy Editor of the New Civil Rights Movement. She is also an Adjunct Assistant Professor of International and Public Affairs at Columbia University and teaches human rights in East Central Europe and former Yugoslavia. Prior to teaching at Columbia, Domi was a nationally recognized LGBT civil rights activist who worked for the National Gay and Lesbian Task Force during the campaign to lift the military ban in the early 1990s. Domi has also worked internationally in a dozen countries on issues related to democratic transitional development, including political and media development, human rights and gender issues. She is chair of the board of directors for GetEQUAL. Domi is currently writing a book about the emerging LGBT human rights movement in the Western Balkans.