The Depressing Irony of Windsor

My most- and least-favorite part of the commentary on United States v. Windsor has been this strain of people who, perhaps sensing that their fun is ending, are taking any and every opportunity to call people who don’t share their enthusiasm “bigots.” Two prominent examples are PZ Myers and John Scalzi.


Sorry, Republicans, you don’t get to discriminate against gay couples legally anymore.


What the DOMA ruling does do, I think, it make it a lot less easy for those who work to deny same-sex marriage to say they do so out of anything other than bigotry.

Scalzi’s bit is doubly ridiculous because he’s well aware there are non-bigoted angles on the issue. The link goes to a post of mine that, in part, calls him out for this line:

Please note the Mallet of Loving Correction is in its warming chamber and will be applied to those who a) do not play well with others in the thread, b) I find rhetorically overheated, c) decide now is a fine time to play the “this is why the government should get out of marriage!” card from their Derailing Libertarian Arguments deck.

It’s fairly desperate when you define any position that isn’t (a) bigoted or (b) pro-gay marriage out of the issue as a “Derailing Argument” and then complain that your opponents are bigoted!

But if you’re out there trying to keep people of the same sex from getting hitched, then we have a word to describe what you’re doing.

Yeah, and if you’re deliberately ignoring reasoned arguments so you can cast the debate that way, then we also have several words to describe what you’re doing, including ‘childish’ and ‘ignorant.’

Now, we’ve long known that the most vocal proponents of gay marriage care neither about gays nor the legal definition of marriage so much as they care about telling anyone who will listen what great people they are. But I think that gaping chasm between their professed motivations (altruistic, civic-minded concern for society) and their actual motivations (vanity, as far as I can tell) has never been thrown into starker relief than it is now that it’s against the backdrop of Windsor – and that’s because the lawsuit that ended up as Windsor was a tax suit.

Stop to think about that, for a moment. A lesbian couple which had apparently been together since the 70s (leaving no doubt about their commitment to each other) got officially married in Ontario, a marriage which their home state of New York legally recognized as such. When one died, leaving her estate to the other, the surviving partner had to pay the full federal estate tax on the inheritance (apparently some $300k) because, while they may be married in New York, they’re not married for the purposes of federal law thanks to DOMA. So, there was real “injury” in the sense that DOMA imposed burdens on the surviving partner that wouldn’t have been there for a heterosexual couple. An open-and-shut case, amiright?

I’m right – it’s a clear injury stemming from discrimination on the basis of sexual orientation. But when we say the case is open-and-shut, I wonder if we’re not shutting the door too quickly. Because it isn’t just sexual orientation that’s the basis for discrimination here, it’s also marital status, and it really begs the question why a person needs to be married at all to inherit property?

This has always been the irony at the heart of this debate – that any attempt to claim that property rights prove that there is real injury that results from the legal restriction of marriage to straights just ends up exposing the fact that property rights are a separate issue. People like Scalzi claim that property rights are their concern, but actually they’re just a stalking horse for what they’re really interested in: telling everyone who will listen how tolerant they are.

Look, this couple lived form 197-something to 2005-6 before getting “married.” In all that time, they were just two people who were devoted to each other. The basis for one wanting to give her property to the other on death is clear, and it should be her right to do so whether or not she is married to the woman. It’s brazenly ridiculous to claim that anything about the basis for the one woman’s decision to leave her estate to the other changed when they got married, and it’s equally ludicrous to claim that she somehow has a natural right to leave her property to another woman she’s in love with, or another man she’s in love with, but not to, say, a sibling, or a devoted work colleague, or a devoted servant, or whoever else. More to the point, there’s no reason why the rest of us – the unmarried masses – should have to pay a tax that married people don’t. There is clearly some discrimination going on here, but it’s on the basis of marital status more than sexual orientation.

If the government can’t impose taxes on people that it wouldn’t if they were straight, then what is the basis for the government imposing taxes on people because they don’t happen to be married? And that’s the rub – you can come up with all kinds of reasons that the government might want to encourage marriage, but in doing so you just grant the government authority to discriminate against people in the name of social engineering. For example, you might say that the government has an interest in promoting marriage because marriage creates a stable environment for raising children, and you might further point out that gay couples can and do raise children too, so the government should include them in its plan to encourage child-rearing behavior, but then of course you’d have to explain why the inheritance tax were waived even for those married couples that had never produced children. That is, if your aim is to encourage child-rearing, then why beat about the bush? Why not just give people inheritance tax breaks for having raised children to the age of majority without major incident? And if your claim is that we want to give inheritance tax breaks to people who are married because marriage is a way of proving devotion, then you’ll have to explain why there isn’t a requirement on length of cohabitation for getting the tax break. I mean, we give it to newlyweds as easily as to people who have been married for 50 years, and, to put a fine point on it, it frequently happens that a wealthy man who has been with his wife for decades will decide to leave her for a hot young thing – and then the hot young thing has a greater claim to the wealth that he actually accumulated with the other woman. Etc. etc. The bottom line is that there is simply no way to honestly ignore that marriage is a cultural institution that evolved to meet a lot of now-archaic cultural needs, and that it evolved around heterosexual partnerships. The legal trappings that go along with it reflect that evolutionary history, and they are not all appropriate for today. So, rather than bolting something on to that cultural tradition that is actually a fairly uneasy fit for it, we should instead be talking about which legal consequences have come out of this and how we can go about providing them fairly to the class of people who deserve them. There are two conversations we could be having about things like the case that became Windsor v. United States, and we’re pretty clearly having the wrong one.

Scalzi’s take on all that is “la, la, la, la, I’m not listening to you, you’re ‘derailing’ the issue, I wanna call people bigots!”

It’s really fucking pathetic.

One thought on “The Depressing Irony of Windsor

  1. I completely agree with you about the whole inheritance tax thing. I would leave all my stuff to my brother or friends. I feel that that should count just as much as marraige, and they shouldn’t have to pay an inheritance tax.

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