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The Jewish Women in the DOMA Case

A dispatch from the Supreme Court

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Edie Windsor(Reuters)

Justice Ruth Bader Ginsburg got off the line of the morning at yesterday’s oral arguments before the Supreme Court on the constitutionality of the 1996 Defense of Marriage Act. “You’re saying, no, the state said two kinds of marriage,” Ginsburg told Paul Clement, the lawyer arguing in favor of upholding the law. “The full marriage, and then this sort of skim milk marriage.” Later, two hours into the hearing, she also had the final judicial word, on a subject she knows better than anyone else on the bench. “The history of this Court is, in the very first gender-discrimination case, Reed v. Reed” — a case Ginsburg briefed, and won — “the Court did something it had never done in the history of the country,” she reminded the packed courtroom. “The Court said, ‘This is rank discrimination.’”

It’s probably not an accident that the four Justices who were most critical of DOMA are all either women or Jews — and in the case of Ginsburg and her colleague Elena Kagan, both. It is, however, a total coincidence that the plaintiff in the case, Edith Windsor, and her lawyer, Roberta Kaplan, are also both Jewish women.

And it may make no substantive difference in the end: the vote that matters in the case belongs to Anthony Kennedy, a committed Catholic who nevertheless has written the Court’s opinions in the two major gay-rights decisions, 1996’s Romer v. Evans, which invalidated a Colorado ballot measure voiding gay-rights laws, and 2003’s Lawrence v. Texas, which struck down laws criminalizing sodomy in the 13 other states where they remained on the books. And it was Kennedy, as much as anyone else in the courtroom, who Ginsburg was addressing with her skim milk comment, after he indicated his discomfort with Clement’s argument that DOMA was somehow limited in scope and only about standardizing a single definition of marriage for administrative purposes. “It applies to over 1,100 federal laws,” Kennedy said. “Which in our society means that the federal government is intertwined with the citizens’ day-to-day life.”

The substance of the case is the $363,000 estate-tax bill Windsor received in 2009, after her wife, Thea Spyer, died following a decades-long fight with multiple sclerosis, but it could just as easily have been about a hospital refusing Windsor the right to visit Spyer, her partner for 40 years and, thanks to changes in Canadian and New York State laws, her wife for two years, or about Windsor’s access to Spyer’s Social Security benefits, or any of a myriad quotidian but incredibly important administrative rights that accrue to married couples. After the hearing, Windsor and Kaplan appeared on the steps of the Court building, across from the Capitol, in matching black suits, their caps of short blonde hair glinting in the spring sun. Kaplan’s outfit was set off by a properly juridical white silk blouse, while Windsor accessorized with a magenta scarf and the diamond brooch Spyer gave her for their engagement in 1967. The crowd outside, which had been listening to dance music and cheering as someone with a microphone announced people of interest — “Jerry Nadler!” — went wild at the sight of them. “We love you, Edie!” they shouted. Her smile, which stretched from ear to ear, said she loved them right back, and it doesn’t matter what the Court decides: being there was a victory in itself.

Earlier: Gay Marriage’s Legal Crusader [Tablet]
Transcript From Hearing on Defense of Marriage Act [NYT]
Five Justices Skeptical of Ban on Benefits to Gay Spouses [NYT]
Edith Windsor After DOMA Arguments [Politico]
Heavyweight [New Yorker]

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PhillipNagle says:

It seems that Jews should suppot DOMA. After all, on Yom Kippur, the holiest day of the year, we read that male homosexuality is an abomination. Just yeasterday on the second day of Passover we read from Kings II how the temple was cleansed, in part by burning the houses of the sodomites.

    mikerbiker says:

    Except that in America, there’s something called the 1st amendment and separation of church and state.

      PhillipNagle says:

      Actually the first amendment provides for the free exercise of one’s religion, and if that includes considering male homosexuality an abomination, we are free to express that. If we consider, whether for religious reasons or for any other reason, that homosexual marriage is wrong, we are free to express that.

        The reason that we — the Jews — tend not to support DOMA — well, those of us not affiliated with Jewish Orthodoxy in its most rigid and thus circumscribing strands — is that we are experts in discrimination and old pros at injustice.

        We acknowledge, above all, the temporal discrepancies between the time at which the Torah was scribed and the present, and, with the advent of modernity, we have increasingly dismissed the idea of odious homosexuality as not integral to the practice and internalization of sincere Judaism.

        Of the western religions, we are probably the most forward-thinking in terms of eschewing the Torah’s purported (by those who are most conservative) literality, and as a result we have enabled ourselves to strip the Torah of its superfluities — homosexuality as anathema being one of them — in order to reveal its core, its essence. We were the first major western religion to ordain women, and the emergence of the Reform and Masorti (Conservative) movements is a testament to Judaism’s reform-mindedness.

        It is a Jewish — though certainly not exclusively — sensibility not to marginalize. Jews are taught to question and even to contradict, a mode of inquiry canonized in the Torah Abraham, Isaac, Jacob, and Moses — among numerous other prominent figures.

        The art of Talmudic hermeneutics as a major form of exegesis incorporates individual moral foundation to a particularly great extent. We read things all the time that we disagree with, and so subsequent commentary and lively debate are commonplace. Despite the biblical injunction against man lying with man, we, doubtless products of our time, choose not to fall back on our sacred book and instead look inward to inveigh against wrongful discrimination.

        It’s simply the Jewish thing to do.

          PhillipNagle says:

          Typical gibberish from one avoiding a moral stand. Homosexuals are trying to impose their way of life as normal and moral and it is niether. By forcing this on people of faith ond others you are making a mockery of the first amendment.

          What’s moral about hating and restricting other human beings

          PhillipNagle says:

          What’s moral about giving approval to something the Torah refers to as an aboniation. Just because you call something a civil right that doesn’t make it one.

          Which Jews are you talking about? The Babylonian Talmud Jews from Khazaria or the Semite Torah Jews from the middle east and those of the Bible? I believe you are right about the first mentioned above, but then, they did write that up in their protocols of the elders of Zion about how to destroy the character of the goyims children through degrading them through sex and other nasties in order to make them into the same kind of adults and since they own most entertainment like MTV which is riddle with satanism, then its no surprise that they are the leaders of the movment to destabilizing healthy societies leading to the destruction of a civilization. .

          Sam Wolff says:


          The average homosexual man’s lifestyle is 45 years of age .
          70% of all the deaths from A.I.D.S. in CA were to homosexual
          men – mainly due to the fact that they had promiscuous
          unprotected sex with various men . There is a syphilis epidemic
          going on in the San Francisco gay community even now .

          Bullying and discrimination are not a good thing , but why
          should we accept something that is innately unhealthy ?

          What is innately unhealthy is to not solve our own personal issues and feed hate and discrimination on the fear of being, somehow, exposed.
          Homosexuality is the basis of sexuality. It’s important to understand that and accept our own sexuality at all levels.

        mikerbiker says:

        Yes it does provide for free exercise of one’s religion, and yes you are free to express your opinion on the subject.

        But it would be illegal to establish biblical law upon the land for the same reason that it would be illegal to establish Shariah law upon the land: Because the First Amendment states that “Congress shall make no law respecting an establishment of religion.”

        For this reason, one cannot use the bible as a reason to justify discriminating against two individuals who wish to be married in the US and to receive the benefits associated with marriage.

        As Sam Gold suggests, Christian literature has been used for centuries to justify discrimination against Jews. Therefore, the majority of Jews in America know the danger that can occur when one goes down the road of lobbying for biblical law.

          A little history here. The act of Marriage was a religious event only, until Government decided it wanted to make money off of it and began the licensing. So your point about make no law is correct. They cannot make a law forcing the church to accept a marriage that is based on something in direct opposition of their religious doctrine. Government inserted itself into the whole marriage question. It does not belong there. It needs to stay out of it.

          Sam Wolff says:

          Show us how the Jews have been discriminated against in
          the U.S. ? Have they not come to a stable , predominately
          moral Christian society full of many kind and generous people and been
          able to advance further than any other Jewish people in the World
          outside of Israel ? America is not Europe

      No, it says that the Government “shall make no law against the practice there of”. In other words it restricts governments from interfering in religious practices. It does not say that everyone must accept and like and keep quiet about the full flaunting of a perverted lifestyle shoved into the faces of our children.

silverbackV says:

As people, they have the right to conduct their live lives in a Godless deviant manner.

They don’t have the right to force other people to except it.


    What exactly are other people accepting? And what is deviant about it if is naturally occurring and in no way affects their attitudes/behaviors towards others aside from sexual orientation?

    Marriage defined as between a man and a woman has BIBLICAL roots, so, by virtue of our free society being extricated from any and all forms of religion, that definition does not fly and should be subject to alteration given its oppressive features.

    Don’t be such a fucking bigot. Their behavior affects neither you nor anyone else, so stop caring about it.

      silverbackV says:

      Wrongo Sambo – Nothing needs to be changed or reinterpreted in the Bible. Your “free society” is a plague on humanity. You and they can stay in the closet, but when you choose to come out and try to change the Biblical definition of marriage to suit your perverted life style, expect serious push back.

        The biblical definition of marriage has no foothold in secular society.

        Also, I hope you don’t have children. No one should grow up with a parent who’s so backward and hateful.

          silverbackV says:

          Only in your mind Sambo, only in your mind. I’m sure that you will understand that I outright reject your “secular society” claim. That is exactly what is wrong with society. You live by “do what thou wilt.” That is taking civilization backward.

          Sambo-and a racist to boot.

          Well, for sure you won’t have children and thus save them from the same distorted and perverted ways that are destroying our culture and nation. You must not be from here if you are totally unable to see it.

      Sam Wolff says:

      You just refuted your own sentence ” in no way affects their attitudes /
      behaviors towards other ‘ . You called anyone who disagrees with you
      ” a fucking bigot ” Typical intolerance from the left .

Nanart says:

Did Edie Windsor convert to Judaism after meeting Thea? Because in the
documentary about them (you can watch it on Netflix, it’s called Edie
and Thea: A Very Long Engagement) there are photos of Edie celebrating
Christmas with her family and she even says she would go home for
Christmas no matter what when she was in college.


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The Jewish Women in the DOMA Case

A dispatch from the Supreme Court

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