Then Comes Marriage (13 page)

During the last year of her life, Thea was suffering from aortic stenosis, which was getting worse, and at that time it could only be treated by open-heart surgery. Thea told Edie she did not want to have the procedure. “I won't recover,” she said. “Please, I don't want to do it.” But there were no other options. As Edie recalls:

That summer, she began to have more angina. She couldn't take nitroglycerine, so we had morphine. And we were in Southampton and she had a slightly worse episode, and she said, “Call the doctor and tell her I don't want to go to the hospital, but is there anything else they can give me?”

And the doctor said no, that the only thing we could do was bring her into the hospital in New York City. I said, “She doesn't want to come to the hospital. She wants to spend the summer in Southampton with friends.” And then Thea got on the phone with the doctor and verified that this was how she felt.

When we hung up—in the film, you can see this—she's sitting by the side of the pool, wrapped in a towel, and she said, “I had my summer, and I'm having it now.” From there on in, her symptoms were worse, but she was still—there's a picture of us dancing that summer, and she was here at home.

One afternoon, Thea asked Edie, “Am I dying?”

“Probably so,” Edie told her. “We're both two old ladies and we're both dying. But extremely slowly.”

“Okay,” Thea said. “That's all I need to know.”

And so their life went on, day by day, through the end of that summer.

As the leaves started to turn to the brilliant colors of a New York fall, Edie and Thea went back to Manhattan. Thea continued to see her patients throughout the winter, even as her heart condition grew worse. Every morning when she woke up, she had terrible pain from angina, which would usually last for about ten minutes. Then, one February morning, the pain did not stop.

“Edie,” Thea said, “I'm having trouble breathing.” Thea had hospice care at that point, so Edie started to call the hospice. But the card with emergency phone numbers, which was usually posted on the wall, was not there for some reason. Edie shouted, “Where is the hospice phone number?” But before their medical aide could answer, “I know it,” Thea said. She had always been able to remember numbers, often telling Edie that her head was so full of everybody's phone numbers that it was a wonder her brain could absorb anything else. She dictated the digits to Edie, who hurried to punch them into the phone. Thea's hospice nurse rushed over, arriving within minutes, but by the time he got there, Thea was gone. On February 5, 2009, at the age of seventy-seven, Thea Spyer died peacefully at her home from aortic stenosis.

Edie made three calls right after Thea died. One was to a friend of theirs, who started a phone tree to let their other friends know. People started showing up at the apartment, and before long the living room was full of friends, everyone reminiscing about Thea. The other two calls, however, were to patients of Thea's; she had two appointments scheduled for that afternoon, so Edie had to call to let them know that Thea had died.

At around five p.m., at Edie's request, everybody cleared out. “I really want to be alone,” she told them. For nearly forty-four years, she had been kissing Thea good night. Now she was facing her first night alone without her. She had long known this day would come. She did not fall apart. But Edie was not a young woman either, and the toll of Thea's death would become apparent very soon.

ONE MONTH AFTER
Thea died, Edie had a heart attack.

It started mildly, as a bout of stress cardiomyopathy, or broken heart syndrome, a common occurrence in people who have lost longtime spouses. But later her condition worsened considerably, and as a result of complications in the hospital, Edie had “a full-on, total heart stoppage, where there was no connection between the atrium and the ventricle.” Edie has described her thoughts and feelings after Thea's death while she was lying there in her hospital bed:

My state of mind, once I understood what had happened to me, I thought,
I don't have that long to live and I'm going to be pretty sick
. I told my cardiologist, “Send me home. I don't care if you're sending me home to die. It's okay, because I had a great life, and I can't imagine a life now.” And that was true. I was not being sad or dramatic. That was just how I felt.

Edie really did not see the point of going on by herself. Friends came to visit her at the hospital, including Susan, one of the filmmakers. Then, on the day Edie was scheduled to go home, Susan came running into her hospital room waving a letter. It was from the San Francisco International LGBT Film Festival, asking if they could be ready by June, just three months away. Would the film be finished? Susan asked, “Can we be ready, Edie?”

“Up and at 'em,” Edie told Susan. “Let's do it.”

One day, she told Greta and Susan that she needed to see the whole documentary before the screening in San Francisco. The filmmakers balked, insisting that they wanted her to see it for the first time in a movie theater, but Edie was adamant and would not be swayed. “If you had seen me collapse after seeing just the film of us taking our vows, you wouldn't be saying this,” she told them. “You do not want me to collapse publicly. I have to see the film first.”

Greta and Susan arranged for a private screening, and as Edie watched the sixty-seven minutes of the film, she cried most of the way through, but she loved it anyway. “The film has a number of things that are miraculous for me,” she says now. “One is, I can put it on, and there's Thea saying, ‘Edie has never changed. She looks exactly like she looked then.' I can't tell you what that makes me feel like today. And the other is Thea saying, ‘I had my summer, and I'm having it still.' I could cry right now thinking of that.”

Edie & Thea
had its world premiere in San Francisco on the day after Edie's eightieth birthday. At the big showing in the Castro, the audience gave Edie a six-minute standing ovation at the end, reporters began calling for interviews, and just like that, Edie was transformed: before the film, she was a sick, grieving spouse with little reason to live; now, suddenly, she and Thea were a source of inspiration to LGBT people everywhere. As the documentary started getting booked for more film festivals and Edie received more requests to speak, she felt all her old energy coming back. And she felt something else—anguish.

Despite the fact that Edie and Thea were legally married, the U.S. government did not see it that way, thanks to section 3 of the Defense of Marriage Act. Had Thea been a man, Edie would not have had to pay estate taxes on anything she had inherited upon Thea's death. But in the eyes of the government, the two women were legal strangers. Adding insult to injury, Edie was hit by a federal estate tax bill of more than $363,000 and a state estate tax bill of more than $275,000. At first, awash in her grief, she had not thought much about it. Now she wanted to fight back.

Over the years, Edie had been careful and methodical in their financial planning. Naturally gifted in math, Edie was able to create sophisticated strategies for investing, even teaching herself the Black-Scholes pricing model for options, typically used only by Wall Street derivatives traders or professional investors. And because she was Edie, she added a touch of whimsy to their financial planning, writing a short book for Thea called (in Dutch)
What Willy Should Know About His Money
.

Yes, this was the same Willy who, depending upon whom you asked, was Thea's brother, Edie's fiancé, or Thea's childhood doll. Edie wrote the book when Thea received the balance of her father's trust from her family and the couple needed to invest it wisely, minimizing tax implications. They set up a system where, from time to time, Thea would give Edie a sizable cash gift, calculated to distribute their finances more evenly while sidestepping tax burdens.

As brilliant as Edie was, she unfortunately had received some bad advice regarding those gifts. As with the estate tax, a husband can always gift funds to his wife without there being any tax liability at all. But because of DOMA, the amounts that Thea had given to Edie over the years were fully taxable, and combined with the current value of their apartment due to the dramatic appreciation in Manhattan real estate, this ended up pushing Thea's estate over the legal limit, which in turn triggered the enormous tax liability that Edie now faced upon Thea's death. Edie was able to pay the six-figure estate tax bills, but only by liquidating investments, mostly municipal bonds that had been earning a high rate of return. As Edie explained, paying that estate tax bill “meant selling a lot of stuff to do it. . . . I live on a fixed income and it wasn't easy.”

Edie was angry at having to pay out that money, but more than that, she was, in her own words, “indignant” that the government refused to recognize the relationship that had meant so much to her, and that Thea, ill, weak, and fragile as she was, had gone to such great lengths to formalize legally. “I felt sick that we were being treated the way we were,” she said later. So she decided to sue the government in the hope of getting her money back.

Now she needed a lawyer.

THERE WAS AN
obvious place for Edie to turn: Lambda Legal, the nonprofit that had been fighting for the legal rights of lesbians and gay men since the early 1970s. Edie and Thea had been donating money to Lambda for years, so she expected to be received warmly. She picked up the phone one day not long after the documentary's premiere and dialed the organization's number.

The first time she called, nobody answered. Edie recalled, “I left a message saying, ‘I have a documented marriage, and I'm looking for someone to support my case.' ” By “documented marriage,” Edie meant the documentary film, not her marriage certificate from Toronto. In Edie's mind, it was the film that proved that she and Thea had a long, committed relationship, which she felt was necessary for filing a lawsuit. This, in itself, was evidence of how far gay people still had to go—what straight couple would feel that they needed a documentary film to prove that they were married? But if it hadn't been for the film, Edie would say later, she never would have had the courage to sue the government in the first place.

Edie was eager to tell the Lambda attorneys about the documentary, but she could not get anyone to call her back. Frustrated by the lack of response, she asked a friend who had once volunteered at Lambda to contact them on her behalf. He did, and finally she got a response. “They had a junior guy who was an attorney,” she recalls, “and he said to me, ‘I'm sorry, Edie. It's the wrong time for the movement.' ”

Edie was crushed. She did not care about timing; she just wanted to get the money back that was rightfully hers. But as with any legal challenge in the LGBT rights movement, timing is everything. In March 2009, just a couple of months before Edie called Lambda, Mary Bonauto and GLAD had filed a lawsuit in Massachusetts challenging DOMA on behalf of eight couples and three widowers. Mary's strategy of attacking DOMA so soon was not exactly greeted with enthusiasm by others in the LGBT movement. Both Lambda and the ACLU took the position that Mary was moving too fast and could create bad legal precedents that would be damaging going forward.

Unfortunately for Edie, that was probably not the only reason Lambda was reluctant to take her case. She was just one person, as opposed to the usual diverse coalition of plaintiffs, so that worked against her as well. And her case was about hundreds of thousands of dollars in estate taxes—money that she had actually been able to pay. Wasn't Edie just a bit too wealthy and privileged to be the face of gay rights in the fight against DOMA?

Now Edie was stuck. Lambda had turned her down. GLAD had its own case and was not an option in any event since they focused on cases in New England. Edie knew better than to try to reach someone at the Human Rights Campaign (HRC) for help, because of an exchange she had had with them a couple of years earlier, while Thea was still alive. The couple had gone to a town meeting where HRC executives were discussing LGBT movement priorities. When one of them dismissed marriage as an issue that should be put off for “years down the pike,” Edie stood up and declared, “I'm seventy-seven years old, and I can't wait!” Her outrage had been so casually dismissed that Edie assumed her case against DOMA still would not coincide with HRC's timetable, so she did not bother to make the call.

However, one afternoon not long after Lambda had turned her down, Edie spoke to Brendan Fay, the activist who had helped her and Thea get married in Toronto. Ever energetic and creative, Brendan got in touch with his longtime friend Eddie DeBonis. Eddie worked as a headhunter for law firms, and Brendan explained Edie's situation to him. Could Eddie help find a lawyer to take her case? Eddie told Brendan he'd make calls to a few attorneys and call him back. I knew Eddie through Rachel—he had been active for years in local LGBT politics. When Eddie was married, he and his spouse invited us to attend their wedding, and we in turn invited them to our ceremony in Rhode Island. As a result, Eddie knew all about my work on the New York marriage case, and the first call he made was to me. “Would you talk with her?” he asked.

“Absolutely,” I said.

I knew right away who Edith Windsor was, the very same woman Thea had told me about at length in our therapy sessions all those years ago, when both I and the world around me were very different. As I walked the four blocks to Edie's apartment the next morning, on April 30, 2009, I could not wait to meet this octogenarian math genius whom I had heard about from Thea.

Once I got over the shock of being back in the room where I had had those therapy sessions with Thea, it took me about thirty seconds to decide that I would take Edie's case. She was charming, articulate, intelligent, and had an absolutely straightforward complaint: if Thea had been “Theo,” Edie would never have had to pay a penny of estate tax. Unlike the LGBT rights organizations that had turned Edie down, I had no constituencies to please or funds to raise; all I had to worry about was the case and the client. To me, this case and this client were perfect.