Justice Ruth Bader Ginsburg, the leader of the Supreme Court has become a liberal champion for her support of gay marriage and and left little doubt where she stands on the upcoming gay marriage case.
The 82-year-old justice had the perfect response to every argument against gay marriage put forward at the Supreme Court on Tuesday (28 April).
First, Ginsburg promptly shut down the argument that the court does not have legal right to change a ‘millennia’ of tradition.
Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982, when Louisiana’s Head and Master Rule was struck down.
Would that be a choice that state [still] should be allowed to have? To cling to marriage the way it once was?’
‘No’ was the reply from John Bursch, the lawyer representing the four states seeking to preserve their bans on gay marriage.
Then Ginsburg destroyed the argument that marriage is for procreation.
Suppose a couple, 70-year-old couple, comes in and they want to get married? You don’t have to ask them any questions. You know they are not going to have any children.”
Next, Ginsburg dismissed the argument that gay marriage ‘impinges on the state’ and takes benefits away from straight couples.
How could that be, because all of the incentives, all of the benefits of marriage affords would still be available.So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.’
Ginsburg, a former civil rights lawyer, has been uncharacteristically outspoken in advance of one of the most significant civil rights decisions in decades. In August, shebecame the first Supreme Court justice to officiate at a same-sex wedding. Since then, she’s highlighted the big shift in public opinion on gay marriage in interviews and public speeches, breaking from her usual reticence when it comes to talking about upcoming cases. In February, Ginsburg told Bloomberg that it “would not take a large adjustment” for Americans to accept nationwide marriage equality, given the “enormous” change in people’s attitudes about same-sex marriage.
Two anti-gay-marriage groups, the National Organization for Marriage and the American Family Association, have since called on Ginsburg to recuse herself, arguing that she can no longer be impartial. They’ve also targeted Justice Elena Kagan for officiating at a same-sex marriage, asking her to step down from the case, too.
Legal experts say the calls for recusal are unwarranted, given the 2012 ruling that the federal government must recognize same-sex marriages in states that allow them. The constitutional issue at stake in the current case is whether states can ban same-sex marriage at all. Officiating at a same-sex marriage in a jurisdiction that already allows it does not call into question the justices’ impartiality on that question, according to Columbia Law School professor Jamal Greene.