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Did Ruth Bader Ginsburg offer a clue on marriage equality?

Updated

This article has been updated.

Over the weekend, less than a month after the Supreme Court heard arguments on the constitutionality of same-sex marriage bans, Supreme Court Justice Ruth Bader Ginsburg presided over the wedding of Shakespeare Theatre artistic director Michael Kahn and interior designer Charles Mitchem. According to New York Times columnist Maureen Dowd, a guest at the wedding, Ginsburg delivered her portion, including saying she was officiating by the power vested in her by the United States Constitution, “with a sly look and special emphasis on the word ‘Constitution.’“ 

Dowd wrote that guests applauded, though “no one was sure if she was emphasizing her own beliefs or giving a hint to the outcome of the case the Supreme Court is considering whether to decide if same-sex marriage is constitutional.” A decision in that case, which will determine whether same-sex marriage is recognized throughout the country, is expected at the end of the term, usually late June. 

Kahn told msnbc, “I would not in any way suggest she was hinting [the outcome of the case], because that’s the script she uses.” But, he said, “I think that she knew that everybody there was hoping that this would be a marriage valid everywhere in the country … I was very touched when she said it.”

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No one seriously believes that Ginsburg, a liberal stalwart on the court, will be the swing vote in the decision in the case, Obergefell v. Hodges – that would be Justice Anthony Kennedy. The justices generally meet a few days after a case is argued for a closed door conference to take an initial vote tally and assign opinions, so under normal circumstances, Ginsburg would already know the case’s outcome. But rather than giving a preview, it is more likely that the often-careful Ginsburg was emphasizing “constitution” at that moment to underscore her own vision of that document. She has long believed the constitution can expand to embrace people who were left out at the founding – including gays and lesbians. 

This is the third time Ginsburg has been known to preside over a same-sex wedding; two of the weddings have involved prominent people in the performing arts, unsurprising given how many evenings Ginsburg spends at the theater.  

It all started with a profile published in March 2013, when The New Yorker’s Jeffrey Toobin asked Ginsburg if she would preside over a same-sex wedding. She said she hadn’t been asked, which she assumed was because “no one in the gay-rights movement wants to risk having any member of the court be criticized or asked to recuse.” But if what if Ginsburg were asked? “Why not?” Ginsburg replied.

By the summer, the Supreme Court had struck down the Defense of Marriage Act, and Ginsburg became the first Supreme Court justice to marry a same-sex couple, with the wedding of Kennedy Center president Michael M. Kaiser.  She also agreed to preside over the wedding of two men she didn’t know, one of whom, food writer David Hagedorn, had written to her after reading The New Yorker profile. Hagedorn told The Washington Post that the letter agreeing to conduct the ceremony was dated on the same day the court struck down DOMA.  

“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 at the time. (Ginsburg, a widow, was by all accounts happily married for 56 years.) The calls for recusal from the right have scarcely stopped since. Ginsburg has ignored them.  

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In February, Ginsburg told Bloomberg News, “The change in people’s attitudes on [LGBT rights] has been enormous. 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.” One of Ginsburg’s many friends and associates who happens to be gay is her co-founder of the American Civil Liberties Union’s Women’s Rights Project, Brenda Feigen, who was Ginsburg’s guest at oral arguments for the 2013 marriage cases. 

Ginsburg’s mission at the ACLU throughout the 1970s was fighting to convince the justices that the constitution included women as “we the people,” too. Back then, she pointed out that the women’s movement first forced people to change their rigid views of gender roles. She likely brings the same perspective to LGBT people who have both changed the culture and gone to court demanding equality and recognition. 

“I think of how the Constitution begins – ‘We the people of the United States, in order to form a perfect union,’” Ginsburg said last year, describing her constitutional philosophy. “But we’re still striving for that more perfect union. And one of the perfections is for ‘we the people’ to include an ever-enlarged group.”

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As for the constitutional language, it’s part of Ginsburg’s standard wedding terminology, according to this reporter’s forthcoming biography of Ginsburg. In 2000, Ginsburg presided over the wedding of her former clerk, Paul Berman, to a former clerk for Justice Harry Blackmun. “I’ll never forget the end,” Berman, now a law professor at George Washington University, recalled. “Instead of ‘by the power invested in me, by whatever’ she said, ‘by the power vested in me by the United States Constitution.’ My wife always jokes that if we got divorced it would be unconstitutional.”

Marriage, Marriage Equality and Supreme Court

Did Ruth Bader Ginsburg offer a clue on marriage equality?

Updated