The LGBT community sees U.S. Supreme Court Justice Ruth Bader Ginsburg as a likely vote for equal protection in the two pending major cases involving marriage for same-sex couples.
But various mainstream media outlets recently jostled that confidence by noting that she continues to express the view that the landmark abortion rights decision, Roe v. Wade, went "too far too fast." If the court's most veteran supporter of equal rights for women believes Roe moved "too far too fast," could she be urging an incremental approach to another controversial issue —marriage for same-sex couples?
Ginsburg first made her "too far too fast" remark concerning Roe in February of last year. At a forum of Columbia Law School, she said she thinks the Roe decision triggered the fierce public controversy that persists today over access to the abortion procedure.
"It's not that the judgment was wrong," said Ginsburg, "but it moved too far too fast."
Ginsburg wasn't on the Supreme Court in 1973, when the court issued the Roe decision. But, she noted, abortion law "was in flux across the country." Unfettered right to abortion was available only in four states, and all other states limited to various degrees. The Texas law, challenged in Roe, was "the most extreme in the nation," she noted. It said a woman could not have an abortion unless it was necessary to save her life.
In a 7 to 2 decision, the Roe decision said laws criminalizing abortion "violate the due process clause of the 14th Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy" in the first trimester
Ginsburg suggested she thinks the Supreme Court should have limited its decision to just the Texas law, rather than the broadly reaching decision.
"Then," she said, "it would have put its imprimatur on the side of change and continued in the direction in which [the country was] heading" on the right to abortion.
At the May 11 forum at the University of Chicago Law School, she said simply that the Roe decision was "too sweeping," and that it gave opponents of access to abortion "a target to aim at relentlessly."
"My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change," she said.
"The court can put its stamp of approval on the side of change and let that change develop in the political process."
That was enough to set off another round of speculation: Could she be signaling an incremental approach to the two marriage cases.
"She knows we're all going to immediately say, 'What does this tell us on the marriage equality cases —that she's going to rule in the narrowest way possible?" said Lawrence O'Donnell, host of MSNBC's The Last Word, a political talk show.
The court heard oral arguments in March in Hollingsworth v. Perry, involving California's Proposition 8 ban, and U.S. v. Windsor, regarding the federal Defense of Marriage Act (DOMA) to prohibit recognition of marriages of same-sex couples for the purpose of federal benefits. A decision on each case will almost certainly be issued before the court adjourns the last week in June.
O'Donnell wasn't the only one to wonder anew about Ginsburg's remarks. Geoffrey Stone, the University of Chicago law professor who conducted the "conversation" forum with Ginsburg May 11, wrote at HuffingtonPost.com that her remarks have "implications for the same-sex marriage cases currently pending before the Court."
"Of course, Justice Ginsburg did not herself draw any such parallel, and it would have been inappropriate for her to do so," wrote Stone. "But the connection could not have been lost on the audience. "
In the editor's blog of the New York Times May 13, Lincoln Kaplan wrote, "it's not the court's job to game out public response; it's the court's job to protect constitutional rights."
Not everyone agrees.
Gay law professor William Eskridge Jr. was one of several essayists in the scotusblog.com symposium in 2011 to argue that the conflict over marriage for same-sex couples "ought not be resolved one way or the other [by the Supreme Court] until public preferences become more settled."
"The Supreme Court ought to avoid a final judgment on the constitutionality of marriage law's discrimination against lesbian and gay couples until the nation is substantially at rest on the issue," wrote Eskridge. "Admittedly, that moment is coming more rapidly than anyone predicted, but that moment has not yet arrived."
In fact, since Eskridge wrote that essay, seven states have approved marriage equality laws.
But LGBT legal activists don't seem too troubled that Ginsburg's remarks are signaling a desire to cool the court's decisions in the marriage cases to match the public's temperature.
First, notes Nan Hunter, the likelihood the Supreme Court will rule on the merits of the Proposition 8 dispute "seem extremely small."
Many Supreme Court observers have speculated the court will rule that Yes on 8 proponents did not have standing to appeal a federal district court ruling that struck down Proposition 8.
Second, notes Freedom to Marry executive director Evan Wolfson, recent polls indicate "Americans are ready for the Supreme Court to do its job and uphold the freedom to marry and equal protection under the law."
A Gallup Poll conducted May 2-7 of 1,535 adults nationwide found 53 percent said marriage for same-sex couples should be recognized by the law as valid. Only 45 percent said "should not," and three percent were unsure. A similar poll by ABC at the top of the month found similar numbers.
Third, said Kate Kendell, head of the National Center for Lesbian Rights, Justice Ginsburg said "nothing" during oral arguments that "suggested that she has any intention of ruling against" same-sex couples "based on concerns about Roe or anything else."
And while Lambda Legal's legal director Jon Davidson expressed frustration at Ginsburg's remarks concerning Roe, he said the right to access to abortion and the right to a marriage license have significant differences.
"Roe dealt with certain restrictions on reproductive freedom, where the Court had to draw certain lines about precisely which abortion restrictions were constitutional and which were not and where there was little prior, on point Supreme Court precedent, said Davidson. "By contrast, the laws denying same-sex couples the right to marry do not involve such calibrated distinctions, and numerous cases have already ruled that the Constitution protects the fundamental right to marry and that discrimination based on sexual orientation cannot be based on moral grounds or a desire to treat gay people unequally."
Former New York Times Supreme Court reporter Linda Greenhouse, now a professor at Yale Law School, made another point to O'Donnell, on his MSNBC show The Last Word. She noted that, unlike the marriage equality movement today —which has considerable momentum—abortion law reform 40 years ago had come almost to a halt.
"It's really hard," she said, "to import what happened 40 years ago and subsequently to the fascinating social revolution that we're witnessing today."
Justice Ginsburg, said Greenhouse, "is a very wise woman and I think she's well aware that abortion 40 years ago [and] marriage equality in 2013 are different issues."
© 2013 Keen News Service. All rights reserved.
