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Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

BY PAUL GORDON

Paul Gordon is Senior Legislative Counsel, People For The American Way

One of the words being bandied about at this morning’s oral arguments in the marriage cases was “millennia.”  One of the anti-equality side’s main talking points is that equality proponents are asking the Justices to “redefine marriage,” as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

Ginsburg10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. “The word that keeps coming back to me is ‘millennia,’ ” he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. “I don’t even know how to count the decimals,” he said. “This definition has been with us for millennia.”

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation’s founding.  For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights.  In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband.  A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old.  Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment.  When a New York court in the 1980s struck down that state’s rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill’s 1869 essay The Subjection of Women:  "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate “redefinition” of marriage.  It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

This post originally appeared at People for the American Way.

You can listen to audio of the SCOTUS hearings and read the transcripts HERE.

Our legal editor Ari Ezra Waldman has posted his initial analysis of the arguments in four parts: Part 1, Part 2, Part 3, Part 4. We suggest starting with the first.


Ruth Bader Ginsburg Fires Off Notorious Zingers on Gay Marriage and More in SNL Weekend Update Visit: VIDEO

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Ruth Bader Ginsburg (Kate McKinnon) stopped by the Weekend Update desk on SNL this past Saturday to prove that she's still still as sharp and spry as ever - age be damned.

Ginsburg shared her morning work-out routine ("100 push ups, 100 laps in the bathtub, and then I do my P90X where I pee 90 times") before firing off some zingers on Justice Antonin Scalia, Alabama, gay marriage, Madonna, and more.

Notorious R.B.G. also revealed she has the hots for Bruno Mars saying, "I like my men like I like my decisions, 5-4!"

Watch RBG bring down the house, AFTER THE JUMP...

Continue reading "Ruth Bader Ginsburg Fires Off Notorious Zingers on Gay Marriage and More in SNL Weekend Update Visit: VIDEO" »


Ruth Bader Ginsburg Talks to 'The Rachel Maddow Show' About When She'll Step Down: VIDEO

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Supreme Court Justice Ruth Bader Ginsburg sat down with The Rachel Maddow Show for a rare interview in which she discussed her bouts with cancer, getting a stent in her heart, and when she might decide to retire.

"I will step down when I feel I can no longer do the job full steam."

Ginsburg also talks about what the nation's unfinished business is when it comes to gender equality, abortion, President Obama, Citizens United, Chief Justice Roberts, Hobby Lobby, the court's rulings on women's rights, segregation, the voting rights act, Congress, and what she'd like to be remembered for.

She also offers her opinion on people who are so obsessed with her that they are getting Ruth Bader Ginsburg tattoos.

Watch the full interview, AFTER THE JUMP...

Tattoo

Continue reading "Ruth Bader Ginsburg Talks to 'The Rachel Maddow Show' About When She'll Step Down: VIDEO " »


NOM: Ruth Bader Ginsburg Must Recuse Herself from Gay Marriage Case or Face Congressional Investigation

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Citing Ruth Bader Ginsburg's recent interview where she said the U.S. is more or less ready for nationwide marriage equality, National Organization for Marriage president Brian Brown is now demanding the Supreme Court justice recuse herself from the upcoming gay marriage cases or face a congressional investigation.

Via press release:

Federal law (28 US Code Sec. 455) requires federal judges to disqualify themselves "in any proceeding in which [her] impartiality might reasonably be questioned."

Brown1"Justice Ginsburg has made it crystal clear that she is going to rule in favor of redefining marriage when these cases come before her," Brown said. "We demand that she comply with federal law and disqualify herself as she is required to do. If she refuses, we will ask Congress to act."

Ginsburg's highly inappropriate media commentary is being used by advocates for same-sex marriage who also see it as a foreshadowing of her ruling. The Human Rights Campaign called her comments "taking a bold stand for progress and equality, stating that the country is ready for marriage equality." They are using her comments to recruit signers to a brief they plan to submit to the Court.

"The impartiality of judges is the very foundation of our legal system" said Brown. "When you have a situation where a judge has already decided how to rule on a pending case before it is even presented or argued, the integrity of the judicial system is called into question. This goes way beyond the issue of same-sex marriage and cuts to the heart of whether our federal judiciary can be trusted to fairly consider and adjudicate important issues. Ginsburg comments suggest they cannot."

Last month, the American Family Association called on both Ginsburg and fellow Justice Elena Kagan to recuse themselves from the gay marriage cases because both have officiated at same-sex weddings in the past. 


Ruth Bader Ginsburg Admits She 'Wasn't 100% Sober' At the State of the Union: VIDEO

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Supreme Court Justice Ruth Bader Ginsburg may have had one glass of wine too many before the President's State of the Union Address last month.

Hear what happened, AFTER THE JUMP...

Earlier this week, RBG said the U.S. is ready for nationwide marriage equality

Continue reading "Ruth Bader Ginsburg Admits She 'Wasn't 100% Sober' At the State of the Union: VIDEO" »


Ruth Bader Ginsburg: America Is Ready for Nationwide Marriage Equality - VIDEO

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In an interview Wednesday, Justice Ruth Bader Ginsburg said the U.S. is ready for nationwide marriage equality.

Bloomberg reports:

The 81-year-old justice discussed the public’s increasing acceptance of gays against the backdrop of resistance by Alabama officials to a federal court order that took effect Monday and made it the 37th gay-marriage state. With the high court set to rule on the issue by June, she said it “would not take a large adjustment” for Americans should the justices say that gay marriage is a constitutional right.

“The change in people’s attitudes on that issue has been enormous,” Ginsburg said. “In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor -- we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”

Is Ginsburg merely sharing her own viewpoint on the matter or is she perhaps tipping the Supreme Court's hand ahead of the big decision later this year?

Watch, AFTER THE JUMP...

Continue reading "Ruth Bader Ginsburg: America Is Ready for Nationwide Marriage Equality - VIDEO" »


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