Ruth Bader Ginsburg Hub




The Most Dangerous Line in the Supreme Court's Hobby Lobby Ruling

AlitoBY ARI EZRA WALDMAN

The most dangerous line in the Supreme Court’s recent decision in Burwell v. Hobby Lobby doesn’t come until page 46. It reads as follows:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

That doesn’t sound too bad; indeed, it is probably one of the few statements in Justice Alito’s opinion that many of us would endorse.

Its danger, particularly to the LGBT community, rests in what is not said.

As we have discussed at length, Hobby Lobby allowed a family-run, for-profit arts and crafts company to deny its female employees access to certain contraception simply because that contraception violates the religious beliefs of the company owners.

GinsburgJustice Ruth Bader Ginsburg’s dissent cautioned that the Court was opening a door to allow anyone to use the pretext of religion to opt out of antidiscrimination or public accommodations laws. Justice Alito’s response was to deny the charge, arguing that where the government has a compelling interest in preventing discrimination, as it does in preventing discrimination on the basis of race, the Hobby Lobby exemption would not succeed.

But what happens when the government does not have that “compelling interest”?

Justice Alito chose a convenient example to respond to Justice Ginsburg’s concern. Most people agree that discrimination on the basis of race is not just bad, but absolutely anathematic to our constitutional tradition. But no one in the Court’s five-justice conservative majority has ever said that the state has a compelling interest to prevent discrimination on the basis of sexual orientation or gender identity. Even Justice Kennedy, the author of the Supreme Court’s three gay rights decisions, has carefully declined to declare that antigay discrimination merits heightened scrutiny or that the government has a compelling interest to permit gays to marry. We might believe that the same compelling interest that gives the state the power to prevent discrimination on the basis of race gives the state the same power to prevent discrimination on another status that has nothing to do with an individual’s ability to contribute to society—namely, sexual orientation or gender identity. But there are many judges out there who are not yet there. Congress isn’t even there yet.

CONTINUED, AFTER THE JUMP...

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Handsome Guitar Player Sing-Splains Ruth Bader Ginsburg's Hobby Lobby Dissent: VIDEO

Screenshot 2014-07-01 12.44.40

In 2009, YouTuber Jonathan Mann made a name for himself with his “Song A Day” challenge. Over the years, Mann has mined the minutiae of his everyday life and current events for song ideas, but his 2007th song is perhaps his most clever, collaborative effort.  “Ginsberg’s Hobby Lobby Dissent,” is exactly what you think it is, and it’s amazing. Rather than putting a heavy spin on Justice Ginsberg’s scathing 35-page dissent to yesterday’s 5-4 decision in Hobby Lobby’s favor, Mann decided to just sing it more or less outright.

Watch Jonathan Mann belt out RBG’s dissent, AFTER THE JUMP...

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Justice Ginsburg Calls Edie Windsor ‘Such A Well-Chosen Plaintiff’

GinsburgSupreme Court Justice Ruth Bader Ginsburg is a badass. I know because last March, I had the privilege of witnessing the oral arguments in United States v. Windsor and will forever remember her quip that with DOMA in place, the U.S. effectively had two kinds of marriage in place: "there’s full marriage and then there’s sort of skim milk marriage”

In a recent interview with the Wall Street Journal, Ginsburg was asked to give her thoughts on the public’s reaction to that landmark case and the cultural shift towards greater public support for marriage equality. 

Said Ginsburg:

The reaction to Windsor I think has been positive from the public. She was such a well-chosen plaintiff. People could understand the injustice of the way she was treated. I haven’t seen a social change that rapid in – ever. It’s just great that people who for years have been disguising what they were are now free to be what they are. 

When asked why the court ruled narrowly in the case and didn’t address the bigger question of whether state laws could deny marriage to same-sex couples, Ginsburg responded:

You saw the way the court disposed of the California case. The court generally moves in small steps rather than in one giant step. I think Thurgood Marshall’s litigation is a good example of that. For years he was not arguing that ‘separate but equal’ had to go [but rather attacking segregation incrementally]. Then, then when he had all the building blocks in place, he could bring the Brown litigation.

Ginsburg also said the numerous court cases working their way through the system that have used the Windsor ruling to strike down restrictions on gay marriage are an “inevitable next step on the part of people who [are] trying to promote a greater understanding.”

You can check out her full interview HERE, in which she goes on to give her thoughts on President Obama, congressional gridlock, the Affordable Care Act, and officiating gay marriages.  


Supreme Court Justice Ruth Bader Ginsburg: Marriage Equality Demonstrates 'Genius' of the Constitution

Ruth Bader Ginsburg said that the recent same-sex marriage rulings demonstrate the "genius" of the U.S. Constitution, in a talk in Philadelphia last night, the AP reports:

Wedding_ginsburgGinsburg said equality has always been central to the Constitution, even if society has only applied it to minorities — be they women, blacks or gays — over time.

"So I see the genius of our Constitution, and of our society, is how much more embracive we have become than we were at the beginning," Ginsburg said in a far-ranging discussion of her work at the National Constitution Center, steps from the nation's founding at Independence Hall.

And as far as judicial activism goes, Ginsburg had more to say:

Ginsburg criticized her majority colleagues for what she called "activist" decisions that overturned laws better understood by Congress, such as the Voting Rights Act, which had been extended by a series of bipartisan presidents, most recently George W. Bush.

"That's an example of striking down legislation on a subject that the people in the political arena are better informed about than the court is," she said.

Ginsburg became the first Supreme Court Justice to officiate at a same-sex marriage last week.


Supreme Court Justice Ruth Bader Ginsburg Officiates at Gay Marriage

Wedding_ginsburg

UPDATE: Here's the photo (above).

Ruth Bader Ginsburg today will be the first Supreme Court Justice to officiate at a same-sex wedding ceremony, the WaPo reports:

Ginsburg...she officiates at the Washington wedding of Kennedy Center President Michael M. Kaiser.

The gala wedding of Kaiser and economist John Roberts at the performing arts center brings together the nation’s highest court and the capital’s high society and will mark a new milepost in the recognition of same-sex unions....

...During a recent interview, Ginsburg seemed excited about being the first member of the court to conduct such a ceremony and said it was only a logical next step.

“I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship,” Ginsburg said.

She added: “It won’t be long before there will be another” performed by a justice. Indeed, she has another planned for September.


Seven Takeaways from Marriage Week at the Supreme Court

BY ARI EZRA WALDMAN

SupremesFor three hours over two days, the Supreme Court discussed the freedom to marry. The justices asked questions about the law of the love after recent polling showed that 58 % of Americans, and a slew of moderate-to-conservative politicians, supported equality. This trend caught the attention of an unusually ascerbic Chief Justice, who said that leaders were "falling over themselves" to support gay rights. His convenient ignorance of the litany of burdens and discriminations we face every day, his insensitivity and willful ignorance of the plight of sexual minorities, and Roberta Kaplan's inadequate response to his flippancy should not damper the euphoric feeling that what happened this week was historic. The freedom to marry had a hearing at the Supreme Court, where the shallowness of discrimination was laid bare for the world to see. As we await favorable decisions in June, the world is a different place today than it was on Monday.

Many media are making conclusions about the end of DOMA, a narrow standing decision in the Prop 8 case, and the end of the culture wars with a victory for gay rights. Some of these predictions may turn out to be right, but we can't know that and it misses the true legal and political lessons from the last two days.

Having already offered detailed summaries and initial analysis of the Prop 8 (Part 1 and Part 2) and DOMA hearings (Part 1 and Part 2), I would like to take a step back and think more broadly. Here are the seven takeaways from Marriage Week at the Supreme Court.

1. The bench was "hot," asking lots of questions, but don't read too much into those questions.

Just because a justice asks a question critiquing one side's argument does not necessarily point to his or her ultimate decision. Judges play the devil's advocate for many reasons other than preening. If these cases were so open and shut, there would be no need for briefs, reply briefs, and oral argument; neither side ever has a perfect case. Therefore, the justices need to probe the logical, legal, and policy problems, not only to help them decide the case but also to determine the best way to decide the ultimate question. Oral argument questions are also just as much about persuading colleagues as challenging attorneys. Justice Ginsburg may have thought of something that the Chief Justice missed, or vice versa; Justice Sotomayor's demand that Paul Clement give her a single reason for discriminating against gay couples, and his inability to do so, may have worried the Chief and Justices Kennedy and Alito about siding with an impossibly weak argument.

SIX ADDITIONAL TAKEAWAYS, AFTER THE JUMP...

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