The Court’s ruling found the Internal Revenue Service’s interpretation of “marriage” and “spouse” in section 3 of DOMA in violation of the due process clause of the Fifth Amendment. The Court’s opinions held that DOMA placed same-sex couples in the “unstable position of being a second-tier marriage,” adding that such “differentiation demeans the couple, whose moral and sexual choices the Constitution protects.”
The Court’s decision in Windsor was also used as support in its reasoning for another landmark gay marriage case, Obergefell v. Hodges (2015), the decision for which was released on the second anniversary of the court’s Windsor ruling. With Windsor and its legacy, an important aspect of full equality for people of all sexual orientations was achieved.
We Love You, Edie Windsor!
ANDREW SEAN GREER
I remember when the Windsor decision came out; I was overseas, in a country where gay marriage is not legal, and I awoke to the news with a sense of amazement and relief. I saw all my friends had taken to the streets in celebration; I was envious and felt far from home. I almost wished my middle-aged self could transport one message back to the nineteen-year-old Andy Greer marching across from the White House and tell him, “It’s worth it; we won!” We all think of Windsor as the “gay marriage” case, but as with most other Supreme Court cases, it was supremely technical and unsentimental: in a truly American decision, it came down to taxes. The facts of the case hinged on Edie Windsor having to pay $363,053 in estate taxes after the death of her wife, Thea Clara Spyer, taxes a surviving spouse does not pay in the United States. Windsor and Spyer were legally married in Canada, but their marriage was not treated as a marriage by the federal government because of the 1996 Defense of Marriage Act (DOMA).
Despite the dry and technical elements of the case, I was not under the illusion that the core of this case had to do with taxes. Nobody was; Justice Antonin Scalia, in his dissenting opinion, wrote, “No one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” Scalia was right: we were not fooled. We all knew what it meant: DOMA had just been ruled unconstitutional. It would be another two years before same-sex couples could legally marry in the United States, but by declaring DOMA unconstitutional, it was only a matter of time. A long, dark history of second-class citizenship was on the road to being abolished. I, reading the astonishing news from my room across the Atlantic, assumed, like many others, that full rights to all LGBT people would proceed from there. There was a sense, even among the most cynical, that the long, hard battle had been won. Forever.
Four years later, the Trump administration’s Justice Department filed court papers in Altitude Express v. Zarda Inc. (2018), a case in which Don Zarda was fired from his job as a skydiving instructor because he was gay. “The sole question here is whether, as a matter of law, [federal civil rights law] reaches sexual orientation discrimination,” the department wrote. “It does not, as has been settled for decades.” The same day, Trump announced a ban on transgender people serving in the military. Less than a year later, the administration announced a “deploy or get out” policy in the US military; since service members living with HIV are nondeployable by current US military policy, that meant immediate discharge for those who were HIV positive. The Justice Department also argued to the Supreme Court that the Masterpiece Cakeshop should have a constitutional right to deny wedding cakes to gay couples. And so on.
I have written these paragraphs in as cool a legal manner as I can muster, and it’s a handy thing that I am writing on a computer because if I had a pen in my hand it would be shaking with rage. Not at the Trump administration—it is no surprise they would wade in uninvited and urinate in the pool of freedom—but at myself. Not just myself a mere four years ago, when I breathed a sigh of relief, thinking I would no longer have to keep asking Amazon to delete one-star reviews that found my books “disgusting,” or talk about my “wife” in small town diners, or butch it up in bars while waiting for a friend, just to keep from being beaten to a pulp. No, I’m enraged at myself right now—for still believing, despite all evidence, that the fairy-dust magic of marriage somehow dispels the smaller, pernicious evils of our country, when in fact, those evils are the only ones that count.
If we could tunnel back in time into a meeting of the LGBT Alliance at Brown University in 1990 and announce to the young people there (including my dear friends Angela, Kelli, and Ryan, and that nineteen-year-old Andy Greer, hair dyed blond) that gay marriage would be legal in twenty-five years, we would be met with laughing disdain. And why? Because of myriad battles we were fighting—for AIDS research, for women’s rights, for bisexual rights, for transgender rights—not a single one of us was interested in marriage. Was it just because we were young? I don’t think so. It’s because we considered our lives to be in danger. Remember, we were watching our friends and fellow students die of AIDS in an unfeeling country, and lesbians harassed by police for dressing in masculine clothes, and women everywhere afraid to walk alone at night. We really were in it together: Angela, Kelli, Ryan, me, and all the others. We were, in a way, holdovers from the seventies’ gay rights movement, transformed in the eighties into one of rage and humor, but still with a single goal in mind: the sexual freedom of all people. Our slogan was, “We’re here, we’re queer, get used to it!” We did not want marriage and picket fences. We wanted to be something new and wild and queer. And we wanted equality with other citizens. Without having to dress or act like them. And more than that—we wanted to free heterosexuals as well, to break them out of their patterns, to open themselves to possibilities. If you had asked us then, I’m sure we would have said: “Marriage? Nobody should be married. But certainly not queers like us.”
But even remembering the passionate disdain my friends and I felt for the idea of marriage, I don’t blame us for celebrating Windsor two and a half decades later. Maybe we got older, and had partners and children of our own, and enjoyed a little normalcy. Maybe, like so many generations before us, we started out as rebels and mellowed into good neighbors. But really, I think we were so tired of fighting. It felt good, at last, to win and in some way hand over the fight to the next generation.
But the last few years have proven that we can’t stop fighting. Windsor was a great moment in civil rights, but it wasn’t ultimately what we were ever fighting for—and I know, from social media, that none of my old LGBTA friends have forgotten this. Because it is daily life that matters, and it is in daily life that the administration is waging its attack by telling us we are not protected by the law in anything except the abstraction of marriage; nothing flows from that single right. We are not fit to serve in the military (we’ve seen this one before). We are not fit to order the same cake or flowers as “normal” people. We are not fit to mention our lives in our workplace. We are being reminded that our lives depend not on federal protection but on the whims of our fellow citizens, whose hearts were not changed by the fact that the Supreme Court said we can now marry one another. And in this America, we are not human.
It was a beautiful day, the day that United States v. Windsor was decided. But I can think of days more beautiful still: the “kiss-in” we held in 1990 in the main quad of our campus, an act whose bravery seems hard to believe in these times, since it was just same-sex couples kissing (and since most of us were single and new to dating, as thrilling as a junior high dance). The 1991 antiwar march on Washington, protesting the Gulf War with ACT UP, in which a crowd of us crashed in my mom’s living room and together took the Metro into the city with our outrageous signs for everyone to see. And the morning, years later in Montana, when a male friend came over to buff out the word FAG that had been keyed into the hood of my car, and I realized I had allies outside the gay community. And a reunion last year in Angela’s house with Kelli and Ryan, all grown up
and laughing at dinner because we had survived it all, were still totally queer, making queer art in the world. Those were beautiful days. And they were ordinary days when I did not feel afraid because I knew the people around me would protect me. And oh, because: love. You don’t need to get married to join a fight for more days like that, for everyone.
ACLU V. UNITED STATES DEPARTMENT OF DEFENSE, ET AL. (2018)
Protests of the Dakota Access Pipeline (DAPL) at Standing Rock have come to symbolize the fight for climate justice. In May 2017, the watchdog group Intercept published leaked information indicating undue government scrutiny and surveillance of the Standing Rock environmental activists. Anticipating similar scrutiny by the government in response to planned protests of the Keystone XL Pipeline, the ACLU submitted a Freedom of Information request to the federal government to assess the character of the government’s planned response to future pipeline protests. After many of the federal agencies withheld documents related to the government’s activities, the ACLU brought a civil suit rooted in the agencies’ refusal to release documents. The outcome of the litigation is pending at the time of writing.
Surveillance Capitalism Versus Indigenous-Led Protest
LOUISE ERDRICH
Cattle now graze the floodplain of the Cannonball and Missouri Rivers at Standing Rock, where the anti–Dakota Access Pipeline protest encampment once existed, but what happened there in 2016 reverberates. There is a powerful sense of unity and purpose among Indigenous people and environmental activists, but also an intensified collaboration between government law enforcement agencies and the private security firms hired by the corporate entities behind the large-scale fossil fuel pipelines. These groups are exchanging information about what worked to quell protest at Standing Rock. There, Indigenous-led peaceful prayer protesters faced water cannons used in freezing temperatures, attack dogs, beanbag cannons, tear gas grenades, tasers, rubber bullets, and long-range acoustic devices that beam concentrated sound intense enough to burst eardrums. If the Keystone XL pipeline, “game over for the planet” in the words of climate scientist James Hansen, wins court cases and crosses the Canadian border in Montana, these tactics and others will be the basis of a strategy of violent intimidation against protesters seeking not only to protect the water supply of Fort Peck reservation and surrounding communities, but to prevent the very worst effects of climate change.
In September 2018, the national American Civil Liberties Union and the ACLU of Montana sued federal agencies, including the Departments of Defense, Homeland Security, Interior, and Justice, over their refusal to release documents that detail antiprotest coordination between federal agencies and corporations. In advance of the civil action, the ACLU obtained, through right-to-know requests, the following information: The Montana Highway Department and US Department of Justice presented social networking and cyber awareness training in Circle, Montana. The Department of Justice hosted an “antiterrorism” training in Fort Harrison, Montana. The Bureau of Land Management hosted a “large incident planning meeting” in Miles City, Montana. The Federal Emergency Management Agency (FEMA) hosted “field force operations” training in Sidney and Glendive, Montana. And there are more. In addition to these sessions, the ACLU has documented government and corporate spying on and surveillance of Indigenous and environmental activists through social media and other venues.
“The First Amendment protects political speech from undue government scrutiny, and the extent of such scrutiny is currently unknown,” wrote Jacob Hutt in an ACLU blog post. “If the government is planning to prevent or monitor Indigenous and environmental protests, the activists involved have a right to know about it.”
Interior emails obtained by Intercept detail how the security firm TigerSwan operated without a license in North Dakota to monitor and infiltrate anti-DAPL protesters, as well as attempt to control public narrative. By labeling peaceful protesters “jihadists” and “terrorists,” by calling the protest an “insurgency,” the camp a “battlefield,” and planting disinformation, TigerSwan fostered a good-versus-evil stand-off that helped spread fear of protesters and justify the violent tactics that law enforcement used. There is no profit in depicting protesters as human, ordinary, or speaking for the public good. When government agencies get their information from profiteers of violence, it is tainted by business incentives that exploit paranoia and, increasingly, by extralegal information gathered via aerial surveillance and radio eavesdropping.
In addition, using the language of terrorism to describe citizen dissent makes it sound as though there is some form of national security at stake. In fact, quite the opposite is true. Climate change is already politically destabilizing the world as droughts cause mass migration and war. And what TransCanada and Energy Transfer Partners is doing has intensified climate change and will continue to do so. New pipelines will not make gas cheaper, and they do not have anything to do with ensuring a strategic supply of fuels for the United States. Since 9/11, our country has become energy self-sufficient. If we put our money in the right place, we could be clean energy self-sufficient. The Keystone XL pipeline is being built to ship the world’s filthiest fuel, tar sands oil, which is obtained from stripping the boreal forest from Alberta, Canada. This heavy bituminous sludge would be pushed down to the Gulf of Mexico, and from there, refined and mostly exported.
In effect, the United States would pay an incalculable ecological cost in order to add billions to the Canadian economy. All along the way, this project has faced determined local and state opposition for good reason. All pipelines inevitably leak, and climate change is progressing more quickly and dangerously than anyone anticipated.
The Keystone XL tar sands pipeline would cross the Missouri River a quarter mile upriver from Fort Peck’s southwestern border. The intake plant for the Assiniboine and Sioux rural water supply system lies seventy miles downstream. The tribe has treaty rights to the waters of the Missouri River, but years of tribal requests, courtroom testimony, public comments, letter after letter of protest, newspaper reports, and even personal letters to Justin Trudeau, Canada’s prime minister, have gone unanswered. TransCanada’s risk assessment study for the pipeline makes no mention of the water supply for the Assiniboine and Sioux, or for the surrounding non-Indian communities that depend on that water. Sandra White Eagle, program director of the water supply system, says that when a pipeline spill occurs, it would reach their water treatment plant in a couple of hours, and then “we’re dead in the water.” Fort Peck has already suffered the carcinogenic contamination of its northern aquifer by fracking. They know exactly what can happen.
“The government has a history of punishing those that fight for what is right,” said Angeline Cheek, a Hunkpapa and Lakota activist, community organizer, and teacher from the Fort Peck reservation. “Now as people of different nations fight to defend their rights, land, water, identity and people, history is repeating itself. But the strength of our ancestors will remain within us.… We are the dream and vision of our ancestors. In prayers we are united—all my relations (mitakuye oyasin).”
Here in Minnesota, where I live, the ACLU is entering the fight for environmental justice. Another pipeline company, Enbridge, is pushing to build a thousand-mile tar sands pipeline, Line 3, which would cross tribal lands in northern Minnesota, endangering pristine lakes, wild rice beds, and the Great Lakes, which holds one-fifth of the world’s freshwater. ACLU Minnesota’s official comment to the Public Utilities Commission stated that the environmental impact statement regarding this pipeline was inadequate and that the pipeline was a form of environment racism. And again, this pipeline is not needed. The dirty oil is mainly for export. The Indigenous organization Honor the Earth has stated that Enbridge should clean up its old disintegrating pipeline and absolutely should not build a newer, larger, longer one, which would have disastrous consequences.
Law enforcement is already tracking Line 3 dissent, online and on the ground. The city of Duluth, over strenuous local objection, a
pproved a proposal for $84,000 worth of riot gear to stop their neighbors from saving their water. And TigerSwan has reportedly initiated a nine-state dragnet to collect antipipeline activist information.
Antipipeline protesters are not using their First Amendment rights as a riotous social exercise, but are trying to save our place on this rapidly warming earth. Indigenous people know how quickly a world can end. It has happened to our cultures and our relatives many times. If fossil fuel interests are not checked, the resulting climate, blisteringly hot and with oceanic surges of water, will eliminate most of humanity. The so-called extremists opposing pipelines are acting on scientific fact. Energy Transfer Partners, TransCanada, and other giant pipeline corporations are operating out of an irrational and willful blindness that amounts to corporate terrorism. These companies seek to lock in fossil fuel infrastructure so that there is no clean energy alternative. In the face of such world-destroying greed, Standing Rock was an instance of collective sanity. Protest in Fort Peck, against Line 3 in Minnesota, or at other pipeline protests all over the world, is the triumph of hope over nihilism.
By defending the right to free assembly, the right to dissent, the right to know what the government is planning to quash Indigenous dissent and environmental activism, the ACLU is working toward a future place for us on this wildly beautiful, generous, living earth.
Acknowledgments
This book owes everything to Stacy Sullivan of the ACLU, who not only instigated it but shepherded it with such competence, confidence, and grace. James Esseks also was integral to its inception.
Thanks to Anthony Romero and David Cole for allowing us to celebrate the ACLU in this way.
Fight of the Century Page 29