When the Supreme Court hears the case for marriage equality Tuesday, people will be watching swing voter Justice Anthony Kennedy for clues to whether he wants to cap off his gay rights legacy by striking down same sex marriage bans. But there’s another justice on the bench who is worth watching: Justice Ruth Bader Ginsburg.
It's not for the suspense -- pretty much everyone expects Ginsburg will vote for the couples who are seeking recognition of their right to marry. But few people realize that while LGBT activists have built the case for same sex marriage, Ginsburg’s life’s work has quietly helped lay the groundwork for their claims.
“From a legal perspective, her work paves the way, as a litigator and as a justice,” said Cary Franklin, a law professor at the University of Texas at Austin who has written extensively on Ginsburg.
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Before she was on the bench, as an academic and co-founder of the ACLU Women’s Rights Project, Ginsburg brought seven sex discrimination cases to the Supreme Court -- and won six. Perplexing some feminists and the justices then on the bench, several of her cases had male plaintiffs, including a widower who wanted to be the primary caregiver for his son.
Ginsburg was fighting for something more unsettling than just letting women into the boys’ club. The cases sought to convince the court, says NYU law professor Kenji Yoshino, that “you can’t make biology destiny. The government cannot say that men and women have these innate attributes, or that women and men have complementary roles.”
"You can’t make biology destiny."'
But where could you find sex equality in the constitution? Even though the 14th amendment’s guarantee of equal protection under the law had long been assumed to only apply to race, over time Ginsburg convinced the justices it should apply to gender.
As a Supreme Court justice, Ginsburg was soon able to finish some of the work she started. She drew on her own ACLU cases for her 1996 majority opinion striking down the Virginia Military Institute’s males-only policy, saying the government could treat men and women differently only if there was a very good reason. “The justification must be genuine, not hypothesized or invented post hoc in response to litigation,” Ginsburg wrote of any law that classified by gender. “And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”
Which brings us back to the rights of gays and lesbians to marry. At a most basic level, the plaintiffs before the court Tuesday are trying to pick up where Ginsburg left off, extend the protections of the 14th amendment once again -- this time, to gays and lesbians who wish to marry. And some have argued that under the precedents Ginsburg set, discriminating against gays and lesbians is already illegal -- as sex discrimination.
Way back in 1994, law professor Andrew Koppelman wrote, “The effort to end discrimination against gays should be understood as a necessary part of the larger effort to end the inequality of the sexes.” He argued that “the prohibition of homosexuality preserves the polarities of gender on which rests the subordination of women.” In other words, homophobia came from the same place as misogyny: The desire to keep people in their constricted roles. The idea that discriminating against gay couples was sex discrimination fueled one of the first same sex marriage victories, at the Supreme Court of Hawaii in 1993.
This term at the Supreme Court, you can still find opponents of same sex marriage arguing a kinder, gentler version of the “polarities of gender.” One prominent same sex marriage opponent, Ryan Anderson, approvingly includes this quote from a sociologist in the amicus brief he submitted for this week's case: “The two sexes are different to the core, and each is necessary – culturally and biologically – for the optimal development of a human being.”
The intended message that two men or two women could never be “optimal” parents helpfully doubles as a pronouncement that men and women cannot escape their biological destiny. Ginsburg spent the bulk of her career fighting that notion -- including, for example, the law's assumption that that widowed father wasn’t entitled to the same parenting benefits as a mother. “I think that her entire jurisprudence comes down to the belief that there’s much more diversity internal to each gender than there is between the genders,” said Yoshino.
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Even more popular among same sex marriage opponents is the argument that if gay people can marry, thus officially separating marriage from having biological children, heterosexual men won’t feel the need to marry the mothers of their children. That sounds a lot like an “overbroad generalization” of the sort Ginsburg helped strike down. “If you peel some of the layers off,” Franklin said, the implication is that “men aren’t that connected to children, men won’t naturally take care of them, and we need marriage to bind men to the child.”
Opponents of marriage equality say that they are just trying to preserve traditional marriage. But in her opinion striking down bans in Nevada and Idaho, federal appeals court Judge Marsha Berzon pointed out that “traditional marriage” had already been chipped away, with good reason: “Within the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands.” You can thank the second wave feminist movement Ginsburg was part of for some of those changes, too. Meanwhile, the decline in heterosexual marriages that same sex marriage opponents have been warning about is already happening -- in part because of women’s greater freedoms, not the relatively small number of gay people getting married.
Kennedy himself is at least aware of these intersections in the law. He raised it himself in oral argument over California’s marriage ban in 2013.
"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."'
“Do you believe this can be treated as a gender-based classification?” Kennedy asked Chuck Cooper, the lawyer defending Proposition 8. “It's a difficult question that I've been trying to wrestle with it.” Cooper replied that he didn’t believe the law was a gender-based classification, which would automatically subject it to a higher constitutional bar. But, Cooper conceded, “I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term. And so in the same way that fatherhood is gendered or motherhood is gendered, it's gendered in that sense.”
Ultimately, Kennedy didn’t have to answer his own question, because the case was dismissed on technical issues, but he might choose to revisit it.
“It is reasonable," Cooper said then, "to be very concerned that redefining marriage to -- as a genderless institution could well lead over time to harms.” Ginsburg doesn't find that reasonable. She has long been a passionate believer that marriage itself can be transformed into a more equitable institution, if it were a little freer from rigid expectations -- maybe a little more “genderless.” Her own 56-year marriage to Marty Ginsburg, a tax lawyer who fiercely supported her career aspirations and was famously an excellent cook, defied gender stereotypes.
She's a believer in marriage, if not sentimental about it. What Ginsburg said about her decision to be the first justice to officiate at a same-sex wedding was tellingly nuanced and pragmatic: “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.”
But Ginsburg’s openness to the constitutional rights of same-sex couples come from an even deeper commitment: Her belief that the constitution is durable in its basic guarantees, but that those protections swell as society evolves.
“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. “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.”
Update: At oral argument Tuesday, Mary Bonauto, the attorney arguing for marriage equality, mentioned Ginsburg's 1970s sex discrimination cases as an example of how constitutional understanding evolves. Bonauto also made the sex discrimination argument against same sex marriage bans: "We agree that these restrictions are, in fact, linked to gender. There's official classification here, and they are sex linked in an additional way, and that is ideas about what is a proper relationship for a man to have, a real man or a real woman, and that is obviously not with a person of the same sex."
Chief Justice Roberts also picked up on it: "I mean, if Sue loves Joe and Tom 2 loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?"
Meanwhile, Ginsburg pointed out that "traditional marriage" is not such a fixed concept. "There was a change in the institution of marriage to make it egalitarian when it wasn't egalitarian," she said.