David Adler: 2013 was the year of Windsor and Snowden

January 2, 2014 

Our nation’s history is rife with stories about citizens’ actions that have changed the face of American law. Neither the nature of the journey nor its outcome is clear at the start, when challenges to governmental policies are mounted as a result of lawsuits or other actions. Spurred by the strength of their convictions, those men and women whom Thomas Paine characterized as “winter soldiers,” have borne the burden of righting wrongs, fighting for justice and battling for liberty.

For some soldiers, whose causes were shrouded in controversy, victories came quickly. Linda Brown fought the outrage of segregation in public schools. Clarence Earl Gideon championed the cause of the 6th Amendment right to counsel. Daniel Ellsberg’s disclosure of the Pentagon Papers brought security to freedom of the press.

The efforts of others were initially rejected by the legal system but ultimately vindicated in courts of law and crowned by the court of public opinion. Myra Bradwell’s persistence overcame the prejudice that denied women the right to practice law in parts of America. Fred Korematsu and Gordon Hirabayashi, victims of the internment of Japanese-American citizens, paved the way for redress of one of the U.S. government’s gravest injustices against its own citizenry.

It’s rarely clear, in the introduction of a legal cause, whether its actors will suffer denunciation or enjoy celebration and fame. June 2013 will be remembered for the birth of the notoriety of two citizens — Edith Windsor and Edward Snowden — whose names are likely to resound across the decades for their challenges to legal practices regarded by many as oppressive.

Edith Windsor, of Windsor v. United States fame, was the woman who succeeded in the U.S. Supreme Court in her challenge to the federal government’s denial of benefits to same-sex couples, as directed by the Defense of Marriage Act. The implications of the language and reasoning of Justice Anthony Kennedy’s opinion for the Court in Windsor and, before that, a decade earlier in Lawrence v. Texas, as Justice Antonin Scalia pointed out in bitter dissents in both cases, carved out a path to challenge state bans on marriage equality.

The name of Windsor has been, and will continue to be, prominently mentioned by every federal court that rules on same-sex marriage. In all likelihood, her name, like Linda Brown’s, which became synonymous with the great civil rights battles against segregation, will be among the first featured in accounts of the establishment of same-sex marriage.

Edward Snowden’s disclosure of the massive surveillance program conducted by the U.S. government has made his a household name. Americans remain divided on the question of whether he is a patriot or a traitor. But this much is clear: Snowden’s revelations about the nature and extent of governmental surveillance, including the citizenry’s phone calls, have generated lawsuits (some successful) that have questioned the constitutionality of the program and serious legislative inquiry that will result in restrictions on the ability of the executive branch to conduct surveillance.

The jury is still out on the question of whether Snowden will be regarded as another Daniel Ellsberg. In his time, Ellsberg was both reviled and celebrated. The passage of time, however, has been kind to Ellsberg, whose disclosures about the Vietnam War have been praised for opening Americans’ eyes to misleading governmental accounts of that war.

Before June 2013, few had heard of the names of Windsor and Snowden. Which names, stripped of anonymity, will become household names in 2014?

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

Idaho Statesman is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service