· CHAPTER 21 ·
The Right Thing to Do
Two months after her dissents in Fisher and Shelby, Ginsburg stood at the Kennedy Center amid a glittering array of Washington’s most influential arts patrons and philanthropists. The elegantly clad justice had not come to attend a musical event. Rather, she had come to perform a wedding—something that justices often do for close friends, relatives, and former clerks. Joining hands were her good friend the Kennedy Center’s president, Michael M. Kaiser, and the economist John Roberts. With this simple ceremony, Ginsburg would become the first justice ever to perform a same-sex wedding. At a time when many states still stipulated that only a man and a woman could marry, her position on the Court conferred a powerful endorsement of the couple’s equal standing in the law.
That the institution of marriage had become an explosive civil rights issue for lesbians and gays seemed almost unthinkable. Only sixty years earlier, homosexuals had been denounced as “degenerates,” “sex perverts,” and “child molesters.” Subjected to official witch hunts as well as unofficial violence, most had been forced into the “apartheid of the closet.” Years of slow, painful struggle followed as a discriminated-against minority sought to acquire the basic rights of citizenship.
Leading the drumbeat against gay rights since the 1970s, the religious Right had aggressively increased the level, intensity, and political sophistication of the opposition, wielding major influence in the Republican Party. For those convinced that homosexuals are essentially different from heterosexuals and that marriage constitutes a legal union only between a woman and a man, same-sex marriage evoked a level of repulsion and fear of contamination that is visceral.
To persuade a majority of the Court to include civil marriage for same-sex couples within the framework of equal protection would thus require a total sea change in culture, politics, and the law. A story of inclusion, it demonstrates once again how social movements in dialogue with public opinion forge new understandings of the Constitution’s meaning even as contestation continues. An apt coda to the story came in 2015, when two young gays posed for a celebratory photograph with a large cutout of Ginsburg. Her long legal effort to promote gender-neutral spousal roles had laid the base for the argument that same-sex couples were “perfectly capable of filling the purposes of marriage.” When the high court heard its first oral argument on same-sex marriage, Ginsburg left no doubt where she stood on the issue.
Marriage equality was a relatively new priority for the gay liberation movement that emerged in the wake of the Stonewall riots in 1969. Lesbian feminists considered the institution oppressive. Gay men who relished sexual adventuring had little use for lifelong partnering. Those in committed relationships congratulated themselves on the greater gender-role flexibility characteristic of alternative unions. Political radicals found challenge enough in trying to dismantle entrenched privilege based on gender, race, class, and heterosexuality.
Resistance would soften during the 1980s as AIDS ravaged the gay community. Killing 150,000 gay men, the disease exposed countless more to the heartbreak of loss. Indignities compounded grief as state agencies, hospitals, funeral homes, insurance companies, and even probate courts refused to recognize the wishes of same-sex life partners—and often their financial contributions. Understandably, some in the gay community began to reconsider the legal benefits conferred by the state upon married couples.
A gay baby boom in the late 1980s and 1990s further inspired reassessment. Gay adoptions increased as new data became available indicating that children of gay and lesbian parents fared as well as did children of straight couples. Simultaneously, a greater use of donor insemination, sperm banks, and surrogacy allowed one and sometimes both members of same-sex couples to plan families cemented by blood ties as well as an emotional commitment. Parental responsibilities, in turn, generated additional demands for the greater legal protection afforded by marriage.
Marriage as a legal and social practice had also changed over two centuries. Courts and state legislators had reassessed criteria, ending coverture, permitting and then liberalizing divorce, and finally voiding bans on interracial marriage. By the late 1990s, only 56 percent of all adults in the United States were currently married, down from three-quarters in the early 1970s. The meaning of marriage throughout the industrialized world had clearly become less about procreation and more about long-term happiness and commitment. These developments, characteristic of all Western democracies where church-state relations were not deeply entrenched, meant that homosexuality and marriage—once thought to be antithetical—were converging.
Yet in a social revolution that encompassed organizations and individuals with competing strategies and ideologies, making same-sex marriage a top priority for lesbians and gays proved a hard sell. Some feared that “mainstreaming” the movement would blunt its radical edge. Others worried that the shift of focus might divert critical efforts to prohibit discrimination in employment and housing. The movement’s legal arm argued that the courts were not yet ready to act favorably on litigation seeking marriage equality. The justices had waited to overturn homosexual state sodomy statutes in Lawrence v. Texas until 2003—long after the decriminalization of consensual sodomy had occurred in virtually all industrialized countries and in many states.
Yet Lawrence v. Texas had marked a watershed. For the first time the decision drew explicitly homosexual acts between consenting adults in private into the framework of constitutional rights. Justice Kennedy in his stirring majority opinion had written, “Liberty presumes an autonomy of self.” It “gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Friends and foes alike jumped to the conclusion that Lawrence would now usher in marriage equality.
But when a judge in Hawaii concluded in 1993 that the law restricting marriage to a man and a woman constituted an unconstitutional sex classification, alarm bells went off in conservative organizations across the mainland. “A dream issue” for religious and social conservatives, the same Congress responsible for the Partial-Birth Abortion Ban Act passed the Defense of Marriage Act (DOMA) in 1996, making marriage a matter for federal regulation for the first time in the nation’s history.
The act provided that no state was required to give full faith and credit to any law or judicial decision of another state recognizing same-sex marriage. DOMA further stipulated that marriage could only take place between a man and a woman. Referring to the traditional definition of marriage as the “bedrock of civilization,” congressional testimony spoke of “hedonism, narcissism, depravity…and sin.”
President Bill Clinton, who arguably had done the most for gay rights of any president in history up to that time, privately opposed the legislation. But he had been badly burned by his unsuccessful effort to lift the ban on gays in the military. Having vetoed the Partial-Birth Abortion Ban Act, he felt he had exhausted his supply of vetoes with a Republican Congress. If he failed to sign DOMA, he told his top adviser on gay rights, he would be “politically clobbered” in a year in which he faced reelection—a sentiment widely shared by Democrats voting for the bill.
Then, in 2003, the New England lesbian and gay legal advocate Mary Bonauto achieved a critical first victory for marriage equality in the Massachusetts Supreme Judicial Court, with a moving opinion in Goodridge v. Department of Health by Chief Justice Margaret H. Marshall. On November 18, 2003, the court ordered the commonwealth to begin issuing marriage licenses to same-sex couples within 180 days.
Opponents of marriage equality rushed to place measures on the ballot in 2004. Their aim was to put the issue beyond the reach of courts and legislatures by amending state constitutions to define marriage as a union between a man and a woman. It would be almost another decade before President Obama could issue a ringing call for marriage equality, linking Stonewall with Selma and Seneca Falls. “Our journey is not complete until our gay brothers and sisters are treated like everyone else under the law,” he proclaimed in his second inaugural address, “for if we are truly created equal, then surely the love we commit to one another must be equal as well.”
The president’s delay was no surprise to his inner circle. As an Illinois state senator, Obama had signed a questionnaire in 1996 saying that he favored same-sex marriage. But as the Democratic candidate for the Oval Office in 2008, he could not afford to get out ahead of public opinion. Confining his support to other issues important to LGBT votes resulted in agonizing frustration for grassroots activists of marriage equality. But Obama genuinely believed that “We, the People”—movement activists, legal strategists, and an energized public—all have a major role to play in bringing about the social change necessary for historically marginalized groups to enjoy “equal citizenship stature.”
Fortuitously, the president’s hand was soon freed by the tsunami-like momentum that the gay rights movement was rapidly acquiring in popular culture, Democratic politics, and corporate circles. By 2012, Log Cabin Republicans, who had been lobbying for gay rights since the late 1970s, were joined in their push for marriage equality by a few prominent GOP figures such as Laura Bush and Dick Cheney. Thirty states now had antidiscrimination laws on the books, and nine provided same-sex marriage rights. National polls consistently showed that a majority of Americans, especially younger ones, supported marriage equality. Other nations led the way, and the U.S. Supreme Court might follow. Five months before his reelection, when Obama made his carefully nuanced endorsement, two cases had made their way to the Court’s docket.
Hollingsworth v. Perry had already achieved fame as the gay rights trial of the twenty-first century. A month after the passage of California’s Prop 8 four years earlier, the Washington legal heavyweights Theodore Olson and David Boies, who had battled each other in Bush v. Gore, joined forces to challenge California’s ban on same-sex marriage on federal constitutional grounds. Their bold move alarmed some gay rights legal advocates, who preferred a state-by-state strategy. An adverse decision by the Court could halt progress in all fifty states for the foreseeable future. Others objected to what they saw as “showboating” on the part of lawyers who had no prior connection to the movement. But Olson, who had won forty-four of the forty-five cases he had argued before the high court, had “neither the time nor the temperament” for qualms that might allow other federal lawsuits to reach the high court first.
Once Olson convinced progressive Hollywood backers who were funding the suit that the highly credentialed liberal litigator David Boies would act as co-counsel, events moved quickly. Having secured as plaintiffs two gay couples in committed relationships who claimed that Prop 8 violated their right to equal protection and due process, the high-powered legal duo filed an injunction in the U.S. District Court for the Northern District of California. Because neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown chose to defend Prop 8, supporters recruited the prominent trial and appellate lawyer Charles Cooper, who counter-filed.
Lawyers for both sides had hoped to expedite matters by moving directly to the Supreme Court, avoiding the expense and delays associated with a trial. But Governor Schwarzenegger objected. He remembered the chaos that had erupted in 2004 when San Francisco’s mayor, Gavin Newsom, unilaterally issued marriage licenses to same-sex couples, only to have the California Supreme Court void those unions as contrary to state law. Then, in May 2008, when the California Supreme Court declared the law unconstitutional, some four thousand euphoric same-sex couples had again rushed to the courthouse for marriage licenses, only to have their dreams shattered five months later when marriage was redefined in the state constitution by Prop 8.
Perry v. Schwarzenegger landed in 2009 on the docket of Chief Judge Vaughn R. Walker of the U.S. District Court for the Northern District of California. Walker, a smart, independent, and tough-minded jurist with libertarian leanings nominated by President George H. W. Bush, was determined to base his ruling on hard evidence achieved through rigorous cross-examination of allegations of fact by both sides. Quashing the injunction, he instructed both sides to prepare for trial. Lawyers were asked to present evidence on the purported justification for Prop 8, the effects of the initiative for same-sex couples and their families, and the effects for married heterosexual couples and their families. Judge Walker had also requested evidence on the nature of the “right to marry”—a fundamental constitutional right recognized in various Supreme Court decisions, such as Loving. In addition, he asked both sides to address the level of scrutiny that sexual orientation should receive under the equal protection clause.
After three weeks of testimony and summary arguments, the trial ended on June 16—a brilliant twelve-day exercise in separating fact from belief. The Washington duo basked in the knowledge that their academic experts had proven far less vulnerable thanks to superb choices and to Boies’s skill at cross-examining those assembled by opposing counsel. Over the course of the trial, they also relied on a telling sentence from Ginsburg in an earlier decision on a Christian student group in a state-funded institution that refused to admit homosexuals. It said, “Our decisions have declined to distinguish between status and conduct in this context.” As Adam Liptak had pointed out at the time, context mattered. Ginsburg was talking about laws affecting lesbians and gays. Like Justice Brennan, she had inserted what Brennan’s colleagues referred to as “time bombs”—seemingly innocuous casual statements that could be carried to their logical end in future cases. Calling sexual orientation a “status” suggests that homosexuality is not a choice, Liptak explained, noting that courts are better able to protect groups under equal protection whose characteristics are immutable.
On August 4, 2010, Judge Walker issued his decision. Finding for the plaintiffs, the district court struck down Prop 8 as a violation of their right to due process and equal protection based on sexual preference and gender. Paying due deference to the role of the initiative and the views of voters, Walker pointed out that, when challenged, voters’ determinations—especially when they involved the classification of persons—cannot rest on “conjecture, speculation, or fears. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval.” As such, he concluded, “Proposition 8 is beyond the constitutional reach of the voters or their representatives.” Equally impressive was the density of Walker’s long decision, in which fifty-two pages were devoted exclusively to findings of fact.
Galvanized by the outcome, lesbians, gays, and their allies reveled throughout the state. Prop 8 supporters, reacting with equal intensity, denounced the ruling as a negation of the will of the people. Cooper appealed.
After two more years, in 2012, a panel of the liberal Ninth Circuit handed Prop 8 supporters yet another defeat. The narrow ruling, written by Judge Stephen R. Reinhardt, relied not on Walker’s decision, as Olson and Boies had hoped, but on Kennedy’s majority opinion in Romer v. Evans, which struck down a Colorado constitutional amendment banning laws passed to protect homosexuals. Compounding the legal duo’s disappointment, Judge Reinhardt’s ruling applied only to California and not to other states covered by the Ninth Circuit. It also skirted the question of whether Prop 8 targeted a suspect class or denied a fundamental right. Worse still, opposing counsel appealed for a rehearing before the entire Ninth Circuit. When the rehearing was denied, Cooper appealed to the Supreme Court in July 2012 just as two cases in the Second Circuit challenging DOMA were also being appealed. One of the two Second Circuit cases, United States v. Windsor, would earn equal billing with Perry.
In February 2009, Edith “Edie” Windsor had just returned from the hospital where she had been treated for a heart attack following the death of her partner, Thea Spyer. The two had been in a committed relationship, living together in a Greenwich Village apartment since the 1960s. In 1993, when New York City offered legal recognition of domestic partnerships, the two had registered and then purchased a beach house on Long Island. When Spyer’s health further deteriorated, they had flown to Toronto for medical help, where they were legally married in 2007. But under DOMA, Windsor, as the sole heir, was not eligible for the unlimited marital deduction afforded a surviving spouse. Instead, she was obliged to pay estate tax bills—$363,053 to the federal government and $275,528 to the State of New York.
After exhausting much of her savings to pay the estate taxes, Windsor had turned to Lambda Legal and other gay rights organizations to explore the possibility of a suit against the U.S. government that would enable her to get her money back. Unable to find lawyers willing to take the case, she turned to Roberta Kaplan, a “powerhouse corporate litigator” who had served as co-counsel in an unsuccessful case for marriage equality in New York State.
Kaplan, aware that in 2008 New York courts had begun recognizing same-sex marriages that were legally conducted out of state, agreed to represent Windsor pro bono, convinced that her client indeed had a compelling story. She then forged a close working relationship with Mary Bonauto, who had devised the winning strategy for DOMA cases in Massachusetts and Vermont, and persuaded James Esseks, the director of the ACLU’s LGBT and AIDS Project, to serve as co-counsel.
The brief would make clear that the judges did not have to decide the larger constitutional question about marriage equality. Nor did her client challenge the provision of DOMA that gave states the power to decline recognition of same-sex marriages performed elsewhere. Rather, Windsor would demand on equal protection grounds that the government refund the estate taxes that she had paid. It was clear that DOMA treated same-sex married couples differently from their heterosexual counterparts. Kaplan would also ask for the application of either strict or intermediate scrutiny, but like Ginsburg in the Reed brief she would take what she could get.
Kaplan filed suit on November 9, 2010, knowing that it was the job of the Department of Justice to defend laws passed by Congress, even though the administration had recommended DOMA’s repeal. Yet neither Attorney General Eric Holder nor his deputy Tony West relished continuing to defend DOMA. As African Americans, they saw too many similarities between their own race’s historic struggle for equal rights and that of homosexuals. Holder had already established a working group within the DOJ to take a new look at DOMA without considering precedent. The group finally concluded that if heightened scrutiny applied—and gays and lesbians certainly met the legal criteria for equal protection—then DOMA could not be found constitutional. But could the DOJ refuse to defend Section 3 of DOMA, which specified that marriage be defined as an opposite-sex union, without jeopardizing institutional credibility? “No,” argued some of its top lawyers, including Neal Kumar Katyal, the acting solicitor general. With DOMA challenges from Connecticut and New York looming in the Second Circuit, Holder knew that a decision could not be delayed for long.
It was Super Bowl Sunday, February 6, 2011. The Obamas had invited friends, including the Holders, to watch the game at the White House. Holder, who had figured out a way to proceed, needed to clear his strategy with the president. Glimpsing Obama standing alone in the hallway near a portrait of John F. Kennedy, he approached. Obama started talking first. He began by saying that he did not think the government’s position on Section 3 was what it should be and that he had concluded that DOMA ought to be subject to heightened scrutiny. It was “the right thing to do,” the two men agreed, returning to the game.
Kaplan got a call from the Justice Department on February 23, 2011, informing her that while the administration would continue to enforce DOMA, it would no longer defend a federal law that treated gay married couples differently. If Kaplan and her client won in the district court (which they did four months later), she would eventually have to argue her case in the Second Circuit against a lawyer representing the Bipartisan Legal Advisory Group of the U.S. House of Representatives who would argue for the constitutionality of Section 3. With oral argument now scheduled before a three-judge panel on September 27, 2012, Windsor had only a short wait before Kaplan called with good news. Applying intermediate scrutiny, the Second Circuit had ruled 2–1 that Section 3 of DOMA violated equal protection. Windsor was jubilant. But she knew it would take a favorable decision by the high court to get her money back.
On December 7, 2012, the justices met to vote whether to hear Perry (the Prop 8 case) and Windsor. The four liberals and Kennedy apparently suggested that both marriage-equality cases be dismissed. The nation was still much too deeply divided on the issue. Only eight states, plus the District of Columbia, allowed, or were about to allow, same-sex partners to marry. More states needed to do so before the Court could act. But as Scalia later revealed, the four conservatives sensed that time was not on their side. Obama’s reelection and the recent decision of five of those eight states, plus the District of Columbia, to allow gay marriage suggested that their best chance to put an end to the momentum behind marriage equality was now. Thomas, Alito, and either Roberts or possibly Kennedy voted to hear both cases.
Their votes sparked hope and anxiety on both sides of the issue. When granting review, the justices had clearly left themselves plenty of exit strategies. Lawyers were told to address whether the Prop 8 opponents had legal standing to defend the measure after California officials failed to appeal the Ninth Circuit ruling. The same question applied to House Republicans in their defense of DOMA. Both cases could conceivably be dismissed on procedural grounds.
Even if procedural hurdles were overcome, the majority could affirm the Ninth Circuit’s ruling in Perry, leaving bans on same-sex marriage intact in states other than California. Indeed, given Ginsburg’s much-publicized criticism of the Court’s broad sweep in Roe v. Wade, a strong argument could be made that the case should be decided narrowly, giving states more time to act.
Windsor’s outcome was considered by legal experts to be less problematic. Marriage had traditionally been defined by states, not the federal government. Kennedy’s interest in states’ rights might align with that of liberal justices who viewed DOMA as a violation of equal protection. No one doubted that the view of the justice who had drafted the majority opinions in Romer and Lawrence would be pivotal.
Reflecting the intense interest in the two cases, the sidewalk in front of the Court filled up four days in advance of oral arguments with people eager to gain a ticket guaranteeing entry. Willing to brave the cold, wet weather, they had slept in soggy sleeping bags or on plastic lounge chairs under tarps.
When the justices assembled on March 26, 2013, to hear Perry, five of them made it quite clear to Cooper that they doubted whether Prop 8 supporters had standing. Turning to the merits of the case, Kennedy seemed perturbed by a point that Cooper had hammered throughout: the future consequences of allowing same-sex marriage. But then he reflected on the plight of “some 40,000 children in California who live with same-sex parents, and…want their parents to have full recognition and full status. The voice of those children is important in this case.”
When Cooper, returning to the merits of the case, argued that the key to marriage is procreation, Breyer pointed out the obvious: many married couples do not have children. Kagan asked how extending marriage benefits to gay couples could possibly hurt heterosexual couples. Cooper parried, responding that she had not asked the correct question. Kennedy replied that he thought Kagan deserved an answer. “It is impossible for anyone to foresee the future accurately enough to know what those real-world consequences would be,” Cooper admitted.
Attorneys for plaintiffs, David Boies, far left, and Theodore Olson, far right, walk out of the U.S. Supreme Court with plaintiffs, from left, Sandy Stier, Kris Perry, Jeff Zarrillo, and Paul Katami, after California’s Proposition 8 was argued before the Court in Washington, D.C., Tuesday, March 26, 2013.
When Olson rose to present his equal protection argument in Perry, the more conservative justices zeroed in. As Olson tried to convey what marriage meant to these couples, Roberts likened the situation to telling a child that somebody has to be their friend. “You can force the child, to say, ‘This is my friend.’ But it changes the definition of what it means to be a friend.”
Donald Verrilli used his ten minutes to argue that waiting to expand marriage imposed “real costs” on same-sex parents and their children. Roberts responded that the administration’s position would carry more force if it were prepared to argue that same-sex marriage must be allowed nationwide. But neither the solicitor general nor the Court seemed prepared to go that far.
The following day began with extensive questions on standing in Windsor—this time directed at Paul Clement, George W. Bush’s former solicitor general, who defended the interests of House Republicans. Addressing the merits of DOMA, Clement stated that Congress had been responding to Hawaii’s initial judicial decision by trying to reverse the changing definition of marriage. Engaging in revisionist history, he claimed that assuring uniformity in matters of taxation was also an objective.
Kennedy promptly observed, “You are at a real risk with running in conflict with what has always thought to be the essence” of state power, which was to regulate marriage, divorce, and custody. All four liberals immediately jumped in, pressing Clement not on federalism but on equal protection principles. It was the states that treated same-sex married couples differently, Clement insisted. The federal government was just “helping” the states by taking the term “marriage” when it appeared in federal law and enforcing DOMA. Alert to the inconsistency of Clement’s statement for those states where same-sex marriage was permitted, Kennedy and Ginsburg followed up.
“It’s not as though there’s this little Federal sphere and it’s only a tax question,” Ginsburg interjected. “It’s as Justice Kennedy said, 1,100 statutes [that] affect every area of life.” DOMA, she charged, effectively creates “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.” Kagan, indicating that there was something else at work in 1996 when DOMA was passed, read aloud the following excerpt from a House report: “Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.” There was an audible response from the audience.
Seeking to repair the damage, Clement replied, “Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive.” The question is, “Is there any rational basis for the statute?” That indeed is the question, Kennedy agreed, reminding Clement that the power to regulate marriage belongs to the states, not the federal government. Breyer poked further at Clement’s argument about uniformity. But it was time for Solicitor General Verrilli to present his compromise proposal—one that elicited little interest from the justices.
The following day Edie Windsor’s lawyer, Roberta Kaplan, began her argument. Roberts, Scalia, and Alito peppered her with questions. Breyer and Sotomayor briefly intervened, giving Kaplan a chance to return to her argument as to why DOMA was unconstitutional. But neither Roberts nor Scalia let up. Roberts asked Kaplan if she thought all eighty-four senators who voted for DOMA based their vote on moral disapproval. Some clearly did, Kaplan replied. Much of the explanation she attributed to the prevailing presumption in 1996 that gay couples and straight couples were fundamentally different. Over the next decade and a half, society’s understanding had changed.
Scalia promptly asked how she reconciled this alleged “sea change” in public understanding with the fact that only eight states permitted gay marriage. When Kaplan held her ground, Roberts pointed to a different explanation—the power of gay lobbyists. “[P]olitical figures are falling all over themselves to endorse your side of the case,” he stated. Kaplan countered, “The fact of the matter, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or to exclude those rights, the way gay people have.”
Having confirmed her reputation as a powerhouse litigator, Kaplan escorted her client out of the Court where they were surrounded by reporters. Windsor, now a frail eighty-three, had difficulty hearing and walking, although her spirits were as irrepressible as ever. Barely visible over the microphones, she discarded remarks prepared for her and proudly announced, “I’m Edie Windsor….I am today an out lesbian…who just sued the United States of America, which is kind of overwhelming for me.” Explaining her case, she added that although she and Spyer had been married only two of their forty years together, something “intangible but unmistakable changed” after they married. “For anybody who doesn’t understand why we want it or why we need it, it is magic.”
“Justices Cast Doubt on U.S. Law Defining Marriage” read the bold headline on the front page of The New York Times. Next to Ginsburg’s photograph was her remark likening domestic partnerships to “skim milk marriage.” The Los Angeles reporter for The New York Times marveled at the seismic shift in public opinion occurring in California and elsewhere. Yet veteran advocates cautioned against too much optimism prior to the ruling.
After an agonizing three-month wait, the day of the announcement arrived on a warm Wednesday morning in late June. When the Court convened, Justice Kennedy announced the majority decision. “The federal statute is invalid,” he wrote, “for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, seeks to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Motivated by a desire to demean “the moral and sexual choices” of gay and lesbian couples, it humiliated “tens of thousands of children now being raised by same-sex couples.”
When Kennedy finished, he stared straight ahead as Scalia lashed out in a cutting dissent. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
A different 5–4 majority consisting of Roberts, Scalia, Ginsburg, Breyer, and Kagan stated that in Perry it was powerless to reach a decision because proponents of Prop 8 lacked standing to appeal the district court’s opinion when state officials declined to do so. With Judge Walker’s decision now in place, the practical result in California was to enable same-sex couples to marry as soon as the Ninth Circuit confirmed that the stay was lifted.
Though the high court had sidestepped a broad ruling, gays and lesbians had much to celebrate. Taken together, Obama’s words at his second inaugural and the two decisions constituted a powerful message at the highest level of government about what is considered just and permissible and what is not. Both of the Court’s rulings were careful and incremental. Disparate treatment of same-sex unions would still persist in thirty-seven states, barring action by courts or legislatures. Yet by defining as unconstitutional restrictive definitions of “marriage” and “spouse,” Windsor served as a precedent for other cases, just as Scalia had predicted.
Edith “Edie” Windsor, center, celebrates with her friend Donna Aceto, right, as she arrives at a news conference at the Lesbian, Gay, Bisexual and Transgender Community Center in New York, June 26, 2013.
Over the next year and a half, judges in state and federal courts, relying on Windsor’s logic, struck down state bans in more than forty decisions. To the surprise of some on both sides of the issue, the Court announced in October 2014 that it would not grant a hearing on appeals, leaving the rulings intact. As Ginsburg explained in an interview, there is no need for the Court to intervene when lower courts are in agreement. True enough, but seasoned Court observers began speculating. Leaving the decisions intact served everyone’s interest, observed Linda Greenhouse, inasmuch as differences among the justices were irreconcilable. Adam Liptak suggested that denial of appeals might also have been part of the liberal strategy to get the number of states up to the tipping point at which justices are more comfortable handing down sweeping rulings.
In the meantime, the Ohio residents James Obergefell and John Arthur had been together nearly twenty years when Arthur was diagnosed with ALS (amyotrophic lateral sclerosis), often known as Lou Gehrig’s disease. In 2011, the couple took a medical jet to Maryland, where they were married as Arthur lay on a stretcher on the tarmac of the Baltimore-Washington International Airport. Their home state refused to recognize the legality of the Maryland union and, when Arthur died two months later, rejected their request to have Obergefell’s name listed on Arthur’s death certificate. Obergefell sued. When the case reached the Sixth Circuit, it was combined with three other same-sex marriage cases, one each from the four states that constituted the circuit (Ohio, Tennessee, Michigan, and Kentucky). Ruling against the plaintiffs in November 2014, the Sixth Circuit became the only circuit court to uphold the constitutionality of same-sex marriage bans in the wake of Windsor. Lawyers for the plaintiffs appealed.
The Court that had successfully ducked the issue only three months earlier now had no choice. It agreed on January 16, 2015, to hear Obergefell v. Hodges in April. Lawyers were asked to address two sweeping questions: Does the Fourteenth Amendment include a right to marry for same-sex couples, and must states recognize same-sex marriages that took place in other states? Indicative of the rapidly changing sentiment, 201 members of Congress argued for heightened scrutiny for sexual orientation while 57 members urged against a Court-imposed decision that would short-circuit the democratic process in the fourteen states where same-sex marriage bans persisted.
When oral arguments began on April 28, all eyes were on Kennedy, whose evolution on gay rights since his appointment to the Court had been remarkable. Like many moderate California Republicans of his era—Olson included—Kennedy had never been a social conservative. As his former clerk Michael Dorf pointed out, the justice had gay friends. Also, his three prior decisions on gay rights were in the tradition of another California Republican, the former governor and chief justice Earl Warren.
Kennedy initially expressed reluctance about changing a conception of marriage that had existed for millennia. He also voiced reservations about shutting off debate—a reservation strongly articulated by Scalia, Roberts, Alito, and to a lesser degree Breyer. When conservatives continued to dwell on the long history of traditional marriage compared with same-sex marriage, Ginsburg offered a boost to the plaintiffs’ lawyer Mary Bonauto, making a critically important point: marriage had changed. When the Court struck down Louisiana’s Head and Master Rule in 1981, marriage had become a relationship of equals, making the institution for the very first time a viable aspiration for committed gay couples.
Alito then asked Bonauto, if the definition of marriage is just a commitment joining a loving couple, on what basis could the state withhold a license from two siblings or two women and two men? Scalia seemed more worried about ministers being forced to marry same-sex couples contrary to their religious beliefs. Bonauto assured him of the clergy’s First Amendment rights. Kagan also pointed out that rabbis were free to refuse to marry a Jew and a non-Jew. Roberts’s strong objection came as a warning to Bonauto: “[I]f you prevail here, there will be no more debate….Closing off debate can close minds and it will have a consequence on how this new institution is accepted. People will feel very differently about something if they have a chance to vote on it than if it is imposed on them by the courts.”
Solicitor General Verrilli responded with a powerful argument on behalf of the plaintiffs’ right to a swift ruling based on equal protection. Delaying reflected the assumption that the problem would take care of itself over time. Because no one could predict the future with absolute clarity, the probable outcome, Verrilli ventured, would be a house divided. Many gay couples and their children would be relegated to second-class citizenship in much the same way that African Americans had been treated until the Court finally forced the states to end de jure segregation.
John Bursch, a former Michigan solicitor general who represented the four states that refused to recognize same-sex marriage, followed. But his argument that states had an interest in binding children to their biological parents was demolished by Sotomayor and Kagan. When Bursch declared that the bans did not discriminate on the basis of sexual orientation, Kagan replied, “If you prevent people from wearing yarmulkes, you know there’s discrimination against Jews.”
Because Kennedy had not tipped his hand, the outcome remained uncertain. There had also been no discussion of heightened scrutiny. Rather, what had emerged were sharp divisions over two basic issues: Is there any good reason for a state’s refusal to recognize same-sex marriage? And who gets to decide—the Court or the people? The answer would likely come at the end of the term in June. But that did not stop legal reporters from sifting the justices’ remarks for clues.
On Saturday, June 13, Ginsburg spoke at the American Constitution Society, where she talked at length about the progress of the LGBT movement once lesbians and gays had come out of the closet. “People looked around and it was my next-door neighbor of whom I was fond, my child’s best friend, even my child. These are people we know and we love and we respect and they are part of us.” As she talked about the changing climate of acceptance, she never mentioned Obergefell. Yet, as Adam Liptak surmised, these “were not the words of a woman whose court was about to deal the gay rights movement a devastating setback.”
On June 26, 2015, Kennedy delivered a historic victory for gay couples nationwide. “The right to marry,” he wrote, “is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clause of the Fourteenth Amendment couples of the same sex may not be deprived of that right and liberty. Without the recognition, stability and predictability marriage offers,” he continued, “their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.” The marriage laws at issue here “thus harm and humiliate the children of same-sex couples.”
He explained that the Constitution’s power and endurance lie in its ability to evolve along with the nation’s consciousness. The Court itself has recognized that “new insights and societal understanding can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”
Kennedy’s words elicited tears in the courtroom and euphoria among those outside who managed to get word of his ruling. But they brought no cheer to his more conservative colleagues, who were firmly convinced that the judicial activism of five members of the Court had usurped the power that properly belonged to the people. Roberts was so upset that he read aloud a lengthy point-by-point attack on each element of the ruling. Less methodical, Scalia hit hard at Kennedy’s style, calling it “as pretentious as its content is egotistical.” The ruling, he mocked, was a “judicial Putsch” and a “threat to American democracy.” Alito and Thomas were no less opposed.
Speaking in the White House Rose Garden, President Obama called the ruling a victory for America that “affirms what millions of Americans already believed in their hearts: When all Americans are truly treated as equal, we are more free.” The plaintiff Jim Obergefell agreed, stating that “America has taken one more step toward the promise of equality enshrined in our Constitution, and I’m humbled to be part of that.” Meanwhile, jubilant crowds waved signs and rainbow flags outside the Supreme Court Building. In New York City, thousands reveled in and around the Stonewall Inn, while in San Francisco celebrants streamed into Harvey Milk Plaza. That night, the White House was bathed in rainbow colors, as was the Empire State Building, Niagara Falls, AT&T’s globe logo, and Sleeping Beauty’s Castle at Disney World in Orlando, Florida.
Within hours of the decision, officials in several southern and midwestern states began contemplating strategies including a “conscience clause” that would protect individuals with moral or religious objections to same-sex marriage. Indiana and Arkansas rushed to pass religious freedom laws, only to meet with public and corporate backlash from critics who charged gay couples would suffer discrimination. Governors in both states backed off, seeking a middle ground. But not Texas’s senator Ted Cruz, who charged, “The Fortune 500 [companies are] running shamelessly to endorse the radical gay marriage agenda over religious liberty.” There was some basis to his assertion, though it was not religious liberty that major companies sought to quash. Rather, it was differential treatment of employees that erodes company morale and offends consumers, especially those endorsing gay marriage.
Resistance would continue on the part of social conservatives, as it has in the wake of other major civil rights decisions—this time under the guise of religious liberty. Congressional Republicans resurrected a First Amendment defense bill that would prohibit federal agencies from “taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction.” A year later the bill had still not been taken up by either of the two committees to which it was referred. That other challenges would persist does not invalidate Obergefell’s standing as a milestone both in a long, painful, and ongoing gay rights struggle and in constitutional interpretation. Infused with the rationale of anti-subordination and equality, Kennedy’s concept of equal dignity, located in the double helix of due process and equal protection, lay the groundwork for new legal doctrine.
Ginsburg knew that marriage equality could have been achieved by relying on equal protection. She toyed briefly with the idea of writing a concurring opinion but decided the majority ruling would have greater power if it stood alone—a position she has maintained as leader of the minority. It was enough to know her 1970s litigation on marriage equality for heterosexual couples had paved the way for Obergefell. That a young gay male couple celebrated the decision with a selfie that included a large cutout of Ginsburg illustrated that at some level those young men understood her role in making that historic day possible.
With the term finally over, she was now free to bask in the praise heaped upon her jurisprudence in a volume of the Harvard Law Review scheduled to appear in the fall. One of the many tributes she would undoubtedly treasure was Mark Tushnet’s appraisal of the dissenting portion of her opinion in the first Obamacare decision, National Federation of Independent Business v. Sebelius (2012). The dissent shows us “a judge at the height of her powers,” Tushnet wrote, noting that it provided a sterling example of which topics to pick for most direct analysis and which to leave unaddressed.
Joined by Breyer, Sotomayor, and Kagan in her dissent, Ginsburg had pointed out that by tradition a Supreme Court justice should not offer to decide a constitutional issue that does not need to be decided. Because Roberts had upheld the health-care mandate as a tax, his argument that the Affordable Care Act (ACA) rested on an unconstitutional exercise of the commerce clause was not only gratuitous but flawed. It “harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the nation’s economy in the interest of those who labor to sustain it,” she wrote. In fact, “[i]t finds no home in the text of the Constitution or our decisions.”
In another of the essays, Martha Minow, dean of Harvard Law School, underscored Tushnet’s characterization with a little-known case that illustrated both Ginsburg’s legal craftsmanship and her enduring concern for equal justice. M.L.B. v. S.L.J. (1996) involved a Mississippi mother, Melissa Lumpkin Brooks, known in the annals of the Court as M.L.B., who had been denied the right to appeal a decree terminating her parental rights to her two minor children. She could not afford $2,352.36—the fee for a transcript of the trial and other records required for the appeal. When the Supreme Court of Mississippi ruled against her, her lawyer appealed.
In Ginsburg’s ruling, she did not challenge the precedents constraining M.L.B.’s appeal. Rather, she had searched for exceptions, carefully quoting precedents that related to family status (for example, the state had to pay for the blood test of an indigent against whom a paternity case had been filed). To these family status exceptions, Ginsburg added a procedural due process decision requiring a state to demonstrate a clear-and-convincing-proof standard before terminating parental rights. Connecting all these precedents to M.L.B.’s situation, the opinion, Minow noted, might have appeared at first glance to be a string of “cut-and-pasted quotations.” A calculated move on Ginsburg’s part, those quotations from precedents successfully preempted any charge of a bold expansion of constitutional guarantees.
Using her own words to convey the gravity of the situation, she had pointed out that a petty offender would have received aid for a transcript in a criminal case but not a woman about to lose her parental rights in a civil case. In addition, she subtly shifted the focus—first, from due process and equal protection to simply what the Fourteenth Amendment requires; second, from an appeal conditioned on a records preparation fee to an appeal available except for M.L.B.’s inability to pay the cost; and third, from termination of parental rights to permanent branding of a mother as unfit to associate with her children. “Each of these shifts,” Minow observed, “is well supported by close reasoning in the paragraphs between the opening statement and later restatement. By the time the question is restated, the conclusion seems nearly assured.”
M.L.B. v. S.L.J. was a limited ruling applying only to family matters, Minow acknowledged. Yet it attested not only to Ginsburg’s legal skill but also to her larger vision of equality—one that takes into account not just race and gender but also class, addressing barriers to fundamental fairness imposed on needy litigants. In an era when the Roberts Court was making it even more difficult for those who lacked deep pockets and political clout, Ginsburg’s vision of equal justice, Minow concluded, was indeed to be celebrated.
Other essays focused on the dissents that would become part of the justice’s legacy. Laurence Tribe praised Ginsburg’s ability to unmask appearance-based defenses that judges find “difficult to corroborate and uniquely tempting to accept.” Too often, he observed, such defenses fail to be subjected to the kind of scrutiny that unmasks clever rationalizations that serve to conceal serious constitutional violations. Commending Ginsburg’s dissents in two life-and-death cases, Tribe focused first on Baze v. Rees (2008), which involved a case about Kentucky’s use of drugs in lethal injections. The plaintiffs had argued that the particular “cocktail” did not provide adequate safeguards against excruciating pain, although it did include a drug that suppressed involuntary movement so as to promote the appearance of dignity in death. The second case was Carhart, in which the majority voted to ban a late-term abortion procedure resembling infanticide. Ginsburg’s meticulous dissents in both cases, Tribe concluded, provided “gripping and precise” refutation of appearance-based defenses that undermine sound judicial methodology.
Lani Guinier took a different approach, noting the careful editing that enabled Ginsburg to condense a long dissent in Ledbetter into a short, colloquially worded oral version designed to send a clear warning that something had gone wrong. Intended to rally the press, legal advocacy groups, and politicians to press for a legislative remedy, Ginsburg had used her forceful, passionate voice to secure her objective. (Her dissent had also clarified Lilly Ledbetter’s own statement when the Alabama grandmother subsequently testified before Congress.)
Shelby, Guinier observed, was not a dissent inviting immediate legislative remedy, which the justice correctly deemed unlikely without a Democratic majority in Congress. Yet it was no less an attempt to influence public dialogue about what kind of country we want this to be. Ginsburg, Guinier emphasized, never missed a chance in her indignant Shelby dissent to drive home examples of voter discrimination in ways that both undercut the majority argument and exposed the human consequences of the decision.
An example was Ginsburg’s discussion of the problems of Shelby’s facial challenge. Given Alabama’s long history of voter discrimination, Ginsburg chose an example not from 2006, when the VRA was reauthorized, but rather from as recently as 2010. In an FBI wiretap, two Alabama state senators referred to African Americans as “aborigines” as they plotted to suppress a referendum that would increase voter turnout. In choosing the example, the justice spoke not only to the problems of Alabama’s facial challenge; she also did so in a shocking way that revealed the impact of the decision on African American communities. In addition, the wiretap quotation served to refute Roberts’s “rosy” scenario of racial progress in which voter discrimination against minorities was portrayed as a relic of the past, unrelated to the issue before the Court.
The Shelby dissent is also noted for containing one of the justice’s more memorable lines. Taking the majority to task for failing to engage with Congress’s legislative record, which clearly demonstrated why Section 5 remained necessary, Ginsburg wrote, “Throwing out preclearance is like throwing away your umbrella in a rainstorm because you are not getting wet.” Though “the umbrella metaphor” was surprisingly omitted from the justice’s highly effective oral distillation, she used it later in interviews and speeches. The metaphor, noted Guinier, not only served to simplify complex ramifications of the Court’s ruling in a way that ordinary people could remember but also provided the public with a language to participate in conversations about voting rights.
What the Ledbetter and Shelby dissents reveal, concluded Guinier, is the justice’s firm conviction that the Court does not have the final word in democratic debate about the meaning of rights and law. Rather, “We, the People” play a key role in a dialogue with formal institutions about the core conflicts in our society.
MIT students and community members celebrate the school’s Women’s and Gender Studies program by posing as Ginsburg, 2015.
There would be other dissents and more tributes—the latter not just from distinguished legal scholars at elite universities but also from the millennials who took out phrases like “throwing away your umbrella in a rainstorm” and “skim milk marriage” and made them go viral across the internet. Ginsburg’s indignation at the Shelby ruling inspired Shana Knizhnik, a young first-year law student at NYU, to start a Tumblr blog with the tongue-in-cheek name “Notorious R.B.G.” (a reference to the late rapper Biggie Smalls, who had been known as the Notorious B.I.G.). One of Ginsburg’s clerks told the eighty-one-year-old justice about the blog’s existence and explained the parody. Ginsburg then learned that there was a cottage industry associated with the blog—T-shirts, coffee mugs, shoulder tattoos, homemade Halloween costumes for toddlers, small busts, cartoons, and more, all bearing her new moniker and slogans like “The Ruth Will Set You Free.”
Amazed by her new pop culture status, she concluded that she and the murdered rapper indeed had something in common: they both hailed from Brooklyn. Exploring the blog that so delighted her granddaughters, she ordered T-shirts adorned with her photograph to give to friends. When she traveled in 2013 to the University of California’s Boalt Hall at Berkeley to lecture, law students showed up wearing “Notorious R.B.G.” T-shirts. Clearly enjoying evidence of her popularity among millennials, she asked of her young admirers that they fight for the things they care about, do it in a way that will lead others to join them, and maintain a sense of humor. Progress, she knew, is seldom linear. There are always new battles to fight and old ones to be refought.