Justice Ginsburg argues that justices claiming to uphold the eternal definition of marriage don't know what they're talking about

by Ken

When I went yesterday with the Washington Post team's account of the Supreme Court's oral arguments on the cases it's hearing regarding same-sex marriage, I kept meaning to check ThinkProgress to see what legal eagle Ian Millhiser had to say about the proceedings. For general coverage I think we did OK, but now I'm happy to say that we can turn to Ian M for his particular take.

It turns out that he has taken particular note of a comment by Justice Ruth Bader Ginsburg, in response to some usual blithering from the Court's biggest blowhard-jackass, Nino Scalia. (There may be dumber justices. "Sammy the Hammer" Alito, for an instance. And the Hammer may be as vicious as Justice Nino. But he's nowhere near as overbearingly loud.) Here's Ian:

During Tuesday’s marriage equality arguments in the Supreme Court, several of the Court’s conservative members suggested that same-sex couples should not be given equal marriage rights because these couples have not enjoyed those rights for most of the past. As Justice Antonin Scalia summed up this argument, “for millennia, not a single society” supported marriage equality, and that somehow exempted same-sex couples from the Constitution’s promise of equal protection of the law.

Not long after her conservative colleagues raised this argument, however, Justice Ruth Bader Ginsburg explained exactly why marriage was long understood to be incompatible with homosexuality in just five sentences:

[Same-sex couples] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.

There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.

It was a blunt reminder, or an attempt at a blunt reminder (subtlety is so wasted on many of Justice Ginsburg's fellow justices that even hammerlike bluntness may come across as filigreed nuance) that justices who imagine they're defending an eternal and unchanging definition of marriage are full of doody, because until surprisingly recently a concept as simple-sounding as "a man and a woman" not only wasn't simple but in fact from a legal standpoint meant something not at all like what the doody-strewers think.

Here's Ian again:

Justice Ginsburg’s point was that, until surprisingly recently, the legal institution of marriage was defined in terms of gender roles. According to Sir William Blackstone, an eighteenth century English jurist whose works are still frequently cited today to explain the common law principles we inherited from our former colonial rulers, “[t]he very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.” As late as 1887, fully one third of the states did not permit women to control their earnings. And married women could not even withhold consent to sex with their husband until shockingly recently.

Under the common law, “by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband,” and this consent was something “she cannot retract.” The first successful prosecution in the United States of a husband who raped his wife did not occur until the late 1970s.

So American marriage law, and the English law that it was derived from, presumed that the wife was both financially and sexual subservient to the husband. In a world where marriage is defined as a union between a dominant man and a submissive woman, each fulfilling unique gender roles, the case for marriage discrimination is clear. How can both the dominant male role and the submissive female role be carried out in a marital union if the union does not include one man and one woman? This, according to Justice Ginsburg, is why marriage was understood to exclude same-sex couples for so many centuries.

But marriage is no longer bound to antiquated gender roles. And when those gender roles are removed, the case for marriage discrimination breaks down.

IAN'S TAKE YESTERDAY, BY THE WAY . . .

. . . was: "The Lawyer Defending Discrimination In The Supreme Court May Have Just Talked Himself Out Of Victory." He pointed out that lawyer John Bursch, when he took the podium, focused on the argument that "When you change the definition of marriage, that has consequences," and when pressed on those consequences trotted out an argument that was used in Sammy the Hammer's dissent in United States vs. Windsor, that the Court majority was siding with, as Ian put it, "a 'traditional' view" of marriage" which sees it "as an 'exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship' " over "a 'consent-based' view 'that primarily defines marriage as the solemnization of mutual commitment -- marked by strong emotional attachment and sexual attraction - between two persons."

The problem? In Windsor, "Only one other justice, however, Justice Clarence Thomas, joined this part of Alito’s dissent."

As Bursch pressed this view, he was challenged by Justice Kennedy -- whose position is generally considered crucial to the outcome of the present bundle of cases -- and in Ian's view "Bursch's response to Kennedy's concerns was a disaster." You can read more in the post at the above link.

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