It probably sounds a lot like the argument that opponents made against women at the Virginia Military Institute in U.S. v. Virginia in 1996. Ginsburg, writing for the majority, rejected the state’s proposal to create a “separate program” for women cadets. She called it a “pale shadow” of the all-male academy and “unequal in tangible and intangible facilities.”
Although she is the oldest currently serving Supreme Court justice, Ginsburg is the feistiest when it comes to individual civil rights and probably the most progressive when it comes to LGBT people. During oral arguments in the Defense of Marriage Act case, Ginsburg said DOMA treats marriages of same-sex couples as “skim milk,” compared to the whole milk of male-female couples.
If there is one caveat about how Ginsburg might vote, it is her repeated public comments lamenting that the landmark abortion rights decision, Roe v. Wade, went “too far too fast.” An incremental step, she explained most recently at a forum at Columbia Law School, “would have put [the court's] imprimatur on the side of change and continued in the direction in which [the country was] heading” on the right to abortion.
This has made some wonder if she is feeling the same urge concerning marriage for same-sex couples.
Here’s what the odds look like, statistically speaking, for Ginsburg, as well as some other factors to weigh in when considering how she might vote:
Percent voted pro-gay: 80
Percent voted with liberal wing: 86
Odds for two pro-gay votes: 4 to 1
Appointed by: President Bill Clinton
Most notable case: Ginsburg wrote the 5 to 4 majority opinion in Christian Legal Society v. Martinez, upholding a school’s policy against sexual orientation discrimination, calling it “a reasonable, viewpoint-neutral condition on access” to school resources. Legal activists were particularly enamored a remark within that opinion in which Ginsburg said, “Our decisions have declined to distinguish between status and conduct” with regard to attempts to disadvantage gay people by saying being gay is all about sexual “conduct” with a same-sex partner.
Interesting factoids: The court’s tiniest, most frail justice is undeniably one of its toughest. She’s served while battling cancer twice and recovering (just last June) from two broken ribs. She loves opera and has made cameo appearances in local productions with colleague Antonin Scalia.
Notable remark during Prop 8 argument: She summarily rejected an argument by Yes on 8 attorney Charles Cooper that the Supreme Court’s dismissal of the 1971 Baker v. Nelson (Minnesota marriage) case were relevant today: “Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.
Notable remark during DOMA argument: When BLAG attorney Paul Clement tried to argue that “no state loses any benefits by recognizing same-sex marriage” under DOMA, Ginsburg jumped in to point out that DOMA’s effects “touch every aspect of life –your partner is sick, Social Security – I mean it’s pervasive. It’s not as though, well, there’s this little federal sphere and it’s only a tax question. It’s as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so you are really diminishing what the state has said is marriage. You’re saying, no, state did two kinds of marriage –the full marriage and then this sort of skim milk marriage.”
Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at KeenNewsService.com.