Is Ruth Bader Ginsburg Right?

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Ruth Bader Ginsburg is undoubtedly a national treasure, for her sharp legal mind, reasoned, thoughtful decisions, and stalwart defense of feminism, equal rights, and most things progressive. 

That's why many pundits were caught off-guard by her 2013 comments about Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion nationwide. 

"My concern [was that] that the court had given opponents of access to abortion a target to aim at relentlessly," she told students at the University of Chicago Law School, as reported by the Associated Press. "My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change."

Swap out the phrase "marriage equality" for "abortion" in the above quote, and it's not hard to see how the argument could apply to the question of our fundamental right to marry. 

Essentially, Ginsburg argued, the Supreme Court arrived at the right decision in Roe, but too broadly and at the wrong time. Could the same be true of a sweeping ruling that protects the freedom to marry nationwide?

In that same 2013 discussion at the University of Chicago's School of Law, Ginsburg did say she prefers the court to "put its stamp of approval on the side of change and let that change develop in the political process."

And that's basically the approach the court has taken regarding marriage equality, note a pair of prominent lawyers who have built careers arguing for the freedom to marry. They hope the justices will agree that the high court has delayed long enough and the danger Ginsburg had once worried about has largely now passed.

"We have worked hard and shown the country and the court that America is ready for the freedom to marry — building a critical mass of states and support that creates the climate for the Supreme Court to finish the job," says Evan Wolfson, founder and president of nationwide advocacy group Freedom to Marry, and an attorney on one of the country's first marriage equality cases, out of Hawaii in the 1990s. "I believe the justices will see that now is the time to end marriage discrimination nationwide without delay and have confidence that they can do the right thing knowing that not only history but the public will vindicate them."

Heading into this month's hearing on marriage equality, the justices have used every opportunity to move ahead only incrementally on marriage equality. It issued rulings in 2013 that saw a key segment of the Defense of Marriage Act struck down (U.S. v. Windsor) and the unconstitutionality of California's Proposition 8 affirmed (Hollingsworth v. Perry). 

Some court-watchers had hoped those landmark cases would result in a sweeping ruling that sent marriage equality nationwide. But Wolfson says the decision in Windsor, particularly, was "exactly what we asked for."

"Windsor was a very strong and unequivocal ruling that gave us exactly what we asked for," Wolfson tells The Advocate. "In Windsor, we asked the court, as part of our movement strategy, to strike down the core of the federal antimarriage discrimination. And the court did that in unstinting, clear, powerful terms."

"That was part of our strategy for building a critical mass of states and a critical mass of support and gutting federal marriage discrimination to set the stage for the full national win that we now are back before the court seeking," Wolfson adds emphatically. 

Afterward, the court repeatedly refused to consider appeals from states that had seen their marriage bans struck down, letting those pro-equality rulings stand. And it rejected pleas from several states for a stay, which would have placed a hold on pro-marriage rulings while the appeals process played out. While those denials were generally only one or two sentences long, equality advocates and court-watchers reading between the lines suggested the court was unwilling to stand in the way of the freedom to marry.

"The Supreme Court had over a dozen separate stay applications filed with it over the last nine months seeking to stop marriages from happening, all of which the court denied," explains Roberta Kaplan, the attorney who argued before the Supreme Court and ultimately won the landmark ruling striking down DOMA in Windsor. "As a result, marriages between gay couples are now an everyday reality in 37 states, covering 70 percent of the U.S. population. While Supreme Court decisions are certainly not 'popularity contests,' it is inconceivable that the justices didn't have these practical consequences in mind when they denied the stays."

In her most recent public comments on the subject, Justice Ginsburg herself indicated that she was well aware of the shift that had taken place in the hearts and minds of Americans regarding marriage equality. Perhaps even she would agree that, with time, the Roe comparison on same-sex marriage has lost its punch.

"The change in people’s attitudes on that issue has been enormous," Ginsburg told Bloomberg Business in February. "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."

That everyday reality may prove to be a key difference in the shifting national perspective on marriage equality, compared to the still-contentious debate on abortion. While LGBT people have had the opportunity to come out and show their neighbors, family, and elected officials that they are not the terrifying boogeyman antigay activists often paint them to be, those willing to "come out" about having had an abortion are much fewer. As a result, many Americans may well know someone who has had an abortion — but they don't know that they know that. 

Meanwhile, thousands of activists, attorneys, and everyday Americans hope their decades of hard work has helped prime the court to affirm the freedom to marry. The latest polling on national support for same-sex marriage tracks almost identically with the support for legal abortion in the year leading up to Roe. In February, the Human Rights Campaign released polling data that suggested support for marriage equality nationwide reached an all-time high of 60 percent. In states where same-sex couples could already legally marry, support went as high as 74 percent. 

Indeed, The New York Times notes that when the Roe decision came down in 1973, it was not particularly radical. A majority of Americans supported legal access to safe abortion — in fact, a Gallup poll in 1972 found 62 percent of Americans believed "the decision to have an abortion should be made solely by a woman and her physician," according to author Linda Greenhouse, a prominent critic of Ginsburg's assessment of the impact Roe had on the national conversation about abortion.

Before the court issued its decision in Roe, just 17 states had legalized abortion, according to reproductive health think tank the Guttmacher Institute. By contrast, 37 states (plus the District of Columbia) now embrace marriage equality — meaning more than 70 percent of the country currently lives in a state where same-sex couples can legally wed, according to HRC.  

Given the overwhelming statistical, public opinion, and legal backing marriage equality currently enjoys, it's hard to imagine that a pro-equality ruling from the Supreme Court could realistically now be considered "too much, too fast," as Ginsburg once described the Roe decision.

While predicting the outcome of Supreme Court cases is a fool's errand, experts in the movement say the signs are all pointing toward a ruling that finally establishes the freedom to marry nationwide. Even the court's framing of the issue gives equality advocates hope that it will end the incremental approach. When the court announced that it would hear the consolidated cases out of Michigan, Ohio, Tennessee, and Kentucky, the justices instructed the attorneys on all sides to tailor their arguments to answer two specific questions: 

(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The phrasing of those questions suggests nothing "less than a full, strong affirmation of the freedom to marry," says Wolfson. "And the court surely knows that anything less than a full, clear ruling will only invite more litigation and debate, while unfairly leaving some families and states burdened by discrimination, inflicting real injury, indignity and injustice on too many Americans."

Still, marriage equality is a much different issue than abortion, note both Wolfson and Kaplan. "I don't think any of the justices on the court have any appetite to 'un-marry' potentially thousands of couples who are now married and who have had their equal dignity respected by their friends, families and neighbors," Kaplan says.

In fact, Wolfson argues, the "right historical parallel" with the marriage cases currently pending before the Supreme Court isn't Roe but rather Loving v. Virginia, the 1967 decision in which the high court struck down bans on interracial marriage. 

"When the Supreme Court ruled for the freedom to marry in Loving, there was no bad response," Wolfson tells The Advocate. "There was no resistance. There was no sustained, organized, let alone growing opposition. In fact, the country moved to embrace it."

What's more, public and political support for marriage equality is markedly greater now than was support for interracial marriage when the Supreme Court handed down its decision in Loving. But regardless, Wolfson says there's a simple reason that landmark decisions regarding the freedom to marry rarely produce sustained backlash: "Ultimately, when two people are able to marry, it takes nothing away from anyone else."

 

Necessary But Dangerous: If the Supreme Court rules in our favor, not all of the effects will be positive. This is the second entry in The Advocate's special series that explores those possibilities. (Read part 1)

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