September 12, 2017 5:05PM

Edith Windsor, R.I.P.

By Walter Olson

Edith Windsor, a heroine of property rights as well as constitutional protection for gay persons, has died at age 88. After the IRS levied a $363,053 estate tax bill following the death of her spouse, Thea Spyer, Windsor went to federal court to challenge the constitutionality of Section 3 of the 1996 Defense of Marriage Act, which prohibited the federal government from recognizing same‐​sex couples. She scored a notable 2012 victory at the U.S. Court of Appeals for the Second Circuit, in an opinion written by Chief Judge Dennis Jacobs, one of the most respected conservatives on the federal bench. The case then went up to the U.S. Supreme Court, with Cato supporting her cause in an amicus brief.


As the Cato amicus program page describes our role: 

In a case of interesting bedfellows, Cato joined the Constitutional Accountability Center (CAC) [a progressive outfit more usually opposed to our positions] on a brief arguing that DOMA violated the Fifth Amendment’s guarantee of equal protection.…


A five‐​justice majority agreed with Cato and CAC, holding Section 3 unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.” Justice Anthony Kennedy, writing for the majority, held that the federal government cannot intrude into a state’s traditional role in recognizing marriages to bring disfavor onto an unpopular minority.


After supporting marriage equality for longer than nearly any institution in Washington, it was gratifying to see the Court adopt Cato’s position. This was a trailblazing decision and an important step on the road to equal rights for the LGBT community.

Elizabeth Wydra of CAC looked back on the case and its results in the next (2013) Cato Supreme Court Review. 


Litigants whose names wind up on landmark cases can sometimes be a tiny bit disappointing to meet in person, but not Edith Windsor. She gave delicious interviews, like this with the NYT in 2013 (“I would trust no Clinton anywhere any time.”) Accomplished, outspoken, life‐​loving, and successful, she cut a comprehensively cool figure — and helped make American history.