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Pivotal Supreme Court Order Used To Defend Gay Marriage Bans Losing Support

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A growing number of lower-court judges tasked with reviewing the Constitutionality of states’ bans on same sex marriage are reconsidering a pivotal order issued in Baker v. Nelson, a 1972 Supreme Court case. Baker, a case challenging a state’s ability to legally limit marriage to opposite sex couples, was initially heard by the Minnesota Supreme Court before being rejected and appealed to the United States Supreme Court. The Warren E. Burger-led Supreme Court dismissed the appeal, citing a “want of a substantial federal question,” effectively giving legal merit to Baker’s ruling.

Baker has been used widely by opponents of same sex marriage as a legal precedent reflecting the then-Court’s views on gay marriage. Speaking to the lawyers defending California’s gay marriage ban, Ruth Bader Ginsberg expressed her doubts about Baker, citing the ways in which society and the court have changed,

“The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny," she said at the time. “And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”

When taken in account, Baker automatically guides courts to decisions affirming bans because the Supreme Court’s refusal to hear Baker’s appeal acts as an affirmation of the original Minnesotan Supreme Court’s ruling. More and more, however, the Supreme Court’s move to strike down the Defense of Marriage Act is being read as a broad consensus that Baker is a chunk of legal history that needs to be dealt with.

“These cases demonstrate that, since Baker, the Court has meaningfully altered the way it views both sex and sexual orientation through the equal protection lens,” Circuit Judge Henry Ford wrote to the Washington Post. “The Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law.”


Ginsburg: SCOTUS Will Decide Gay Marriage Case By 2016 or Sooner

GinsburgIn an interview with The Associated Press, Justice Ruth Bader Ginsburg said she expects a same-sex marriage case to be heard and decided by the highest court in the land by June 2016, possibly even a year earlier.

Attitudes have changed swiftly in favor of same-sex marriage, which is now legal in 19 states and the District of Columbia, Ginsburg said in her wood-paneled office on the court's main floor.

She predicted that the justices would not delay ruling as they did on interracial marriage bans, which were not formally struck down until 1967.

"I think the court will not do what they did in the old days when thye continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."

Earlier this year, Ginsburg called Edie Windsor 'such a well-chosen plaintiff'


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...

Continue reading "The Most Dangerous Line in the Supreme Court's Hobby Lobby Ruling" »


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

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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...

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


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.


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